When two countries disagree on a legal question, such as a boundary, the use of force or the legality of a government's actions, they need a neutral body to settle the matter. At the world level, that body is the International Court of Justice (ICJ). This article covers five things: how the ICJ was created, how its judges are chosen and what rules they must follow, when the Court can hear a case, why the consent of States is central to its work, and why it is described as a protector of developing nations. It ends with the main criticisms of the Court. For exams, pay close attention to the case names and the Article numbers mentioned below.
Introduction: Origin and Composition of the ICJ
From the PCIJ to the ICJ
After the Second World War, the International Court of Justice (ICJ) succeeded the Permanent Court of International Justice (PCIJ). Under Article 92 of the UN Charter, the ICJ is the primary judicial body of the United Nations.
Mr. Shahabuddin has noted that the ICJ is essentially a continuation of the PCIJ. The two courts share almost the same statute and the same jurisdiction, and no distinction is made between the cases handled by the PCIJ and those handled by the ICJ. In simple words, the ICJ is the old world court given a new name and placed within the UN system.
Composition of the Court
According to Article 2 of the ICJ Statute, the Court is composed of fifteen members. They are:
- elected regardless of nationality;
- chosen from individuals of high moral character; and
- persons who meet the qualifications required for appointment to the highest judicial offices in their respective countries.
Judges: Term, Immunities and Restrictions
The main rules about ICJ judges are as follows:
- Term: Judges are elected for nine-year terms and can be re-elected.
- Immunities: While carrying out their duties, they are entitled to diplomatic rights and immunities.
- Dismissal: A judge can be dismissed only if all the other members of the Court unanimously agree that the judge no longer meets the necessary qualifications.
- Bar on other work: Judges cannot take up political or administrative functions or any other professional work.
- No acting for parties: They cannot serve as officials, counsel or lawyers under any circumstances.
- President and Vice-President: The Court elects a President and a Vice-President for a renewable term of three years.
- Seat: The Court is located in The Hague, Netherlands.
| Point | Rule |
|---|---|
| Number of judges | Fifteen (Article 2, ICJ Statute) |
| Term of judges | Nine years, re-election allowed |
| Term of President / Vice-President | Three years, renewable |
| Removal of a judge | Only by unanimous agreement of all other members |
| Seat | The Hague, Netherlands |
Jurisdiction
The term jurisdiction means the power of a court to hear and decide a case.
A Court, Not a Legislature
The ICJ is a judicial body. It decides cases on the basis of international law as it stands at the time of judgment. Unlike a legislative body, it cannot create laws. Its task is to apply the law that already exists, not to make new law.
Lockerbie case (1992): In this landmark case, the ICJ was seen as the guardian of legality within the international community.
The Need for a Legal Dispute
Article 36(2) of the ICJ Statute specifies that a legal dispute must be brought before the Court for it to take action. If there is no real dispute, the Court has nothing to decide.
Nuclear Test case (1974): The ICJ held that the existence of a dispute is a fundamental requirement for the Court to exercise its judicial function.
A legal dispute is defined as a disagreement on a point of law or a matter of fact. It may therefore arise in either of two ways:
- the parties disagree about what the law is or what it means (a point of law); or
- the parties disagree about what actually happened (a matter of fact).
Kinds of Jurisdiction
The ICJ possesses contentious, binding and advisory jurisdiction:
- Contentious jurisdiction: the power to decide actual disputes between States that come before it.
- Binding jurisdiction: the binding character of the Court's decisions on the parties. Under Article 59 of the ICJ Statute, discussed in the conclusion, a decision binds only the parties to the case.
- Advisory jurisdiction: the power to give advice, or an opinion, on legal questions. This is discussed in the next section.
A Protector of Developing Nations
Consent as the Foundation of Jurisdiction
The ICJ's authority depends on the consent of the parties involved. This requirement reflects their sovereignty, meaning the independence and supreme authority of each State over its own affairs. No State, large or small, can be forced to appear before the Court without its agreement.
Nicaragua case (1986): The ICJ emphasised that the consent of the disputing States is the foundation of the Court's jurisdiction in contentious cases.
Informal Consent: The Theory of Forum Prorogatum
Consent does not always need to be formal. In certain situations, the Court may infer consent from the actions of the parties. This concept is called the theory of "forum prorogatum". The Latin phrase roughly means "an extended forum". It describes a situation where the Court's jurisdiction is extended because a party's conduct shows that it has accepted the Court's authority, even though no formal agreement was made beforehand.
Corfu Channel case (1948), United Kingdom and Albania: The Court assumed the consent of the UK on the basis of their actions and the corresponding letters from Albania. This is the classic illustration of forum prorogatum.
Here is a simple everyday analogy, not a real case. Farhan files a complaint against Aadil before a private arbitrator in Pune, although Aadil never signed any agreement to go before that arbitrator. Aadil does not object. Instead, he writes a letter to the arbitrator saying he will answer the complaint, and then he argues his side in full. Aadil's own conduct shows that he has accepted the arbitrator's authority. Forum prorogatum works in a similar way between States before the ICJ.
No Judgment on the Rights of Absent States
Because jurisdiction rests on consent, the Court will not decide matters that affect a State that has not agreed to be part of the case.
Cameroon v. Nigeria case (2002): The ICJ reiterated that it can exercise jurisdiction over a State only with its consent. It also held that it cannot rule on the legal interests of States not involved in the dispute.
East Timor case (1995): The ICJ held that it could not judge the legality of Indonesia's actions regarding East Timor, because Indonesia was not a party to the dispute.
Consent protects sovereignty. A State's legal interests will not be decided in its absence. This is why the consent rule is seen as a safeguard for States, including developing nations.
Advisory Jurisdiction and the Voice of Developing Countries
The ICJ also has advisory jurisdiction. This allows it to give advice to the UN General Assembly, the Security Council or any concerned Member State. An advisory opinion is the Court's view on a legal question. It is not a decision in a dispute between two parties.
Developing countries have expressed views on the Court's role:
- Bangladesh has expressed support for the ICJ's critical role in upholding the rule of law and maintaining international peace and stability. Bangladesh suggested that UN bodies and specialised agencies refer significant cases to the ICJ to ease its workload, so that the Court can focus on more pressing issues.
- Cuba highlighted the importance of ensuring that the ICJ has the necessary financial resources to perform its duties effectively. Cuba also welcomed the Court's efforts to share information that benefits developing countries.
Conclusion
Risk of Fragmented Jurisprudence
The ICJ sometimes hears cases through specialised chambers, which are smaller groups of its judges. The frequent use of such chamber procedures in contested areas, whether voluntary or not, can lead to inconsistent and fragmented jurisprudence. The term jurisprudence here means the body of legal principles that develops from the Court's decisions. The outcome and the legal principles applied may vary depending on the composition of the chamber, and this could weaken the uniformity of international law.
Article 59 of the ICJ Statute
Article 59 of the ICJ Statute states that the Court's decisions are binding only on the parties involved. This highlights the risk that divergent rulings could reduce support for the ICJ and for international law.
Here is a hypothetical classroom analogy. Neha and Hansa settle a dispute through a decision that binds only the two of them. Later, Renu and Zoya bring a similar dispute and receive a different answer from a differently composed panel. Prince, a law student comparing the two decisions, can no longer say clearly what the rule is. Divergent rulings at the ICJ can create the same kind of confusion in international law.
The Need for Consistency and the Limits of the Court
What is needed is consistent jurisprudence, agreed upon by all nations. The ICJ, with its limited and sometimes ineffective role, may not be the best institution to resolve fundamental disagreements about the content and establishment of international law.
The Court's ability to enforce its rulings is also limited. Its jurisdiction is confined to disputes that are voluntarily submitted to it, either through specific agreements or through prior recognition of its authority.
To sum up, the ICJ is the principal judicial organ of the UN. It continues the work of the PCIJ and decides disputes under existing international law. Its reliance on State consent, seen in the Nicaragua, Corfu Channel, Cameroon v. Nigeria and East Timor cases, respects the sovereignty of all States, including developing nations. The same reliance on consent, together with the risk of inconsistent rulings, also limits how far the Court can shape and enforce international law.
