International Court of Justice : A Protector of Developing Nations
After the Second World War, the Permanent Court of International Justice (PCIJ) was succeeded by the International Court of Justice (ICJ), the main legal entity of the UN according to Article 92 of the Charter of the United Nations. As Mr Shahabuddin rightly points out, it is essentially a continuation of the permanent court with virtually the same statute and jurisdiction, without any distinction being made between the cases decided by the PCIJ and the ICJ.
In accordance with Article 2 of the Statute of the ICJ, fifteen members are elected, irrespective of nationality, from persons of high moral character who have the qualifications required in their respective countries for appointment to the highest judicial office.
Members of the ICJ shall be elected every nine years and may be re-elected. When it comes to public duties, they deserve diplomatic rights and immunities. A judge cannot be dismissed unless it is the unanimous opinion of the other members of the court that he has ceased to fulfill the requisite conditions. No ICJ judge can perform any political or administrative function or engage in any other professional work. Under any situation, no judge may serve as an official, counsel or lawyer. The ICJ shall elect a President and a Vice-President for a term of three years, which may be renewed. The ICJ is based in The Hague, Netherlands.
The ICJ is a judicial body which decides cases on the basis of international law as it exists on the date of the judgment. It can not officially set down laws because it is not a statutory entity. As mentioned in the seminal case of Lockerbie (1992) ICJR, the ICJ is the protector of the lawfulness of the international community. Article 36(2) of the Statute of the ICJ requires a legal dispute to be a matter brought before it. In the case of Nuclear Test (1974) ICJR, the ICJ ruled that the presence of a controversy was the primary requirement for the court to practice its judicial role. A legal dispute simply means a disagreement on a point of law or a matter of fact. The ICJ enjoys contentious, binding and advisory jurisdiction.
A protector of Developing Nations
The authority of the ICJ dependent on the agreement of the parties is defined as the sovereignty of the parties to the conflict. In the case of Nicargua (1986) ICJR, the ICJ held that it was a fundamental principle that the consent of the State parties to the dispute was the basis of the jurisdiction of the courts in contentious cases. However, there is no requirement for agreement in any formal way because, under some cases , the court may derive permission from the actions of the parties. In the case of Corfu Channel (1948) ICJR between the United Kingdom and Albania, the court presumed the approval of the appellant state of U.K. collectively, together with corresponding letters from the other side, Albania. It is recognized as the theory of the forum prorogatum.
In Cameroon vs. Nigeria (2002) ICJR, the ICJ claimed that it is a well-established concept that the Court can exercise authority over a State only through its approval and can not also rule on the legal interests of other States not party to the conflict. In East Timor (1995) ICJR, the ICJ held that it was not in a position to rule on the legality of Indonesia ‘s conduct with regard to East Timor, since Indonesia was not a party to the dispute.
The International Court of Justice also has advisory jurisdiction and, as the case may be, the Court may give advice to the General Assembly, the Security Council or any Member State concerned. For instance, Bangladesh expressed its support for the Court’s vital position in preserving the rule of law and sustaining international peace and stability. Underlining the possibility for the Assembly, the Security Council and other authorized bodies and specialized agencies of the United Nations to seek advisory opinions, Bangladesh has argued that it is advisable to refer cases to the Court on matters of “sufficient weight” in order to free its growing workload from dealing with issues that could be resolved by other legal and peaceful means. Cuba attached considerable significance to the availability of the financial services required for the Court to carry out its duties adequately and, in that sense, called for measures to insure that such tools arrived in a timely and effective manner. Cuba welcomed the distribution by the Court of Justice of content that was especially beneficial to developing countries.
Fundamentally, the repeated usage of unique chamber processes, whether voluntary or not, in the contested substantive fields is a recipe for fractured, pluralistic jurisprudence. The rules of law implemented and the outcome can depend on the makeup of the council. Such a process may offer new significance to the admonition in Article 59 that the judgments of the Court are binding on the parties only. Divergent findings would only diminish support for the Court of Justice and foreign law.
All is required is uniform jurisprudence, which is decided upon by all nations. The little-used and almost powerless World Court is not the proper institution to resolve fundamental disagreements about the content of the norms and the way in which international law is established. The Court loses both the ability to do so and the capacity to enforce its rulings. Unlike the Supreme Court of, the World Court is not the final interpreter of international law. The jurisdictional scope is restricted to conflicts that are jointly submitted to it either through an ad hoc arrangement or through previous recognition of authority.
Contributed by: Anisha Bhandari (Institute of Law, Nirma University)