The Journey of The ICJ: From Then To Now: MR Mohammad Atif Khan
The Journey of The ICJ: From Then To Now: MR Mohammad Atif Khan
The Journey of The ICJ: From Then To Now: MR Mohammad Atif Khan
(Project Report)
Submitted to
580945 By
Kamaljeet Meena
B. A. LL. B. (Hons.) Student
Semester – IV, Section – C, Roll No. 68
15 February, 2017
Declaration
I hereby declare that this Project report titled “Journey of the ICJ: From then to now” is my own work
and represents my own ideas, and where others’ ideas or words have been included, I have adequately
cited and referenced the original sources. I also declare that I have adhered to all principles of academic
honesty and integrity and have not misrepresented or fabricated or falsified any idea/data/fact/source in
my submission. I accept that any suspected irregularity in my work will be dealt with strictly by the
University.
Kamaljeet Meena
Semester-IV,
Roll No.-68,
BA.LLB (Hons.)
ACKNOWLEDGEMENTS
I feel highly elated to work on the project “The Journey of the ICJ: From then to now”. The practical
realisation of the project has obligated the assistance of many persons. Firstly I express my deepest
gratitude towards Mr Mohammad Atif Khan , Faculty of Public International Law, to provide me with the
opportunity to work on this project. Her invaluable guidance and supervision in terms of her lectures were
of extreme help in understanding and carrying out the nuances of this project.
I would also like to thank The University and the Vice Chancellor for providing extensive database
resources in the library and for the internet facilities provided by the University.
Some typography or printing errors might have crept in, which are deeply regretted. I would be grateful
Kamaljeet Meena,
Semester IV,
Section C,
Roll No. 68
Contents
Page
Declaration 2
Acknowledgements 3
Table of Cases 5
1. Introduction 6
1.2 Objectives of the Study 7
5. Conclusion 20
6. References 21
Table of Cases
• Fisheries Jurisdiction case, ICJ Reports, 1974, pp. 3, 19; 55 ILR
• The Legality of the Threat or Use of Nuclear Weapons case, ICJ Reports, 1996, pp. 226,
• South West Africa (Ethopia/South Africa; Liberia/South Africa), ICJ Reports (1961)
Reports (1969)
Introduction
The roots of the ICJ go back to an era ‐ at the beginning of the 19th century ‐ when visionaries be lieved
that war could be outlawed and that governments could settle their disputes by using an international
The 1899 Hague Peace Conference was convened by the Russian Czar. He had been presented with a
dilemma: he wanted to expand domestic social welfare programme (to undercut support for left-wing
Republican Movements in Russia) but could not afford to do so while also maintaining high military
expenditure. That grand aim failed but the Conference did lead to various small ways of regulating how
One of the treaties was the Hague Convention for the Peaceful Settlement of International Dispute.
Countries that agreed to be bound by that treaty agreed to settle their disputes by peaceful means such as
by the Permanent Court of Arbitration. The Permanent Court of International Justice was created in 1920
alongside the League of Nations that eventually evolved into the International Court of Justice. Initially
Communist Countries boycotted it as a club for the rich Western nations. Since the 1980s the Court has
been busier than ever before. Countries have now found more use of it and ironically about a third of
Research Methodology
• To study the mode of International Dispute Settlement between states and international subjects
• To analyse the International Court of Justice’s organization and jurisdiction, and the law governing
it, if any.
METHODLOGY
The research done in this project is analytical in nature. Accumulation of the information on the topic
includes wide use of primary sources such as cases as well as secondary sources like books, e-articles etc.
The matter from these sources have been compiled and analysed to understand the concept.
1
Dr. Keith Suter, The International Court of Justice,
http://www.globaldirections.com/Articles/Global%20Politics/InternationalCourtofJustice.pdf, Last Accessed on 10 Feb,
2017.
The structure of the project, as instructed by the Faculty of Public International Law has been adhered to
1. The First part deals with how the International Court of Justice come into existence?
2. The Second part deals with the organization of this court, its Jurisdiction and the law which
3. Finally, the project deals with the activity of this Court from its inception.
Chapterisation
Chapter 1 starts with the introduction of the International Court of Justice and its relevance in the process
of International Dispute Settlement. Chapter 2 has regarded the inception of this Court and its relation
with the Permanent Court of Justice. Chapter 3 has dealt with the organization and jurisdiction of the ICJ.
Lastly, Chapter 4 talks of the activity of the ICJ which has been there since its initial years to the present
times.
Mode of Citation
All the citations in the project follow the mode prescribed in the 19th Edition of Bluebook.
Scope of Study
The researcher has limited the scope of study of the concerned project to analyzing the organization and
jurisdiction followed in this court and its history of inception; activities of this Court have been studied.
However, all this has not been dealt with in an explicit form. The procedure of approaching the Court
under its two jurisdictions has not been dealt with. The researcher has gone through some cases, but the
and arbitration were known, but not the establishment of a permanent bench of judges to settle disputes,
employing strict judicial techniques. As Malcolm N. Shaw puts it, the impetus to create a world court for
the international community developed as a result of the atmosphere engendered by the Hague
Conferences of 1897 and 1907.4 The establishment of the Permanent Court of Arbitration, although neither
permanent nor, in fact, a court, marked an important step forward in the consolidation of an international
legal system.5 However, no lasting concrete steps were taken until after the conclusion of the First World
War.
At the end of the First World War, and with the creation of the League of Nations, under a mandate of the
Article 14 of the Covenant of the League of Nations, a concrete shape was given to the idea of a Permanent
Court of International Justice (hereinafter, the Permanent Court or the PCIJ). It stimulated efforts to
2
Oppenheim, ‘International Law’, Vol. 1, (1905) pp.1-2
3
Ibid, Vol. 2, p. 3
4
Malcolm N. Shaw, International Law, 6th ed. Cambridge University Press, p. 1057 5 Ibid
develop international arbitral mechanisms. Together with arbitration, the Permanent Court was intended
way to prevent outbreaks of violence by enabling easily accessible methods of dispute settlement in the
The Permanent Court was established with 15 judges elected by the Assembly and the Council of the
League of Nations. They represented the main forms of civilization and the principal forms of legal
systems of the world. The Statute, which governed the operation of the Permanent Court, was however an
instrument independent from the Covenant of the League of Nations. Only States could be parties before
the Permanent Court. But it was empowered to give advisory opinions to the Assembly and the Council
of the League of Nations. The Permanent Court, which came into operation in1922 and ceased functioning
in 1940 with the outbreak of the Second World War, dealt with 29 contentious cases and gave 27 advisory
opinions. The Permanent Court was dissolved in 1946, followed by a decision at the San Francisco
Conference to create a new International Court of Justice (hereinafter, the ICJ or the Court) on the same
lines as the Permanent Court. The intention in 1946 was that there should be continuity between the new
Court and the old court, the PCIJ. The archives of PCIJ had, throughout the World War II, remained intact
in the Peace Palace at the Hague, so that the ICJ was able to take over both the premises and the archives
of the former Court. Accordingly, the Statute of the International Court of Justice (hereinafter referred to
as ICJ) was firmly based upon the final version of the Statute of its predecessor; the arrangement and even
the numbering of the Articles being largely parallel in both versions. The necessary redrafting to bring in
references to the United Nations in place of references to the League of Nations, and the incorporation of
other desired new elements was accomplished, first by the United Nations Committee of Jurists which
met in Washington in 1944, and then by Committee IV of the United Nations Conference on International
The close relationship of the new Statute to the Statute of PCIJ means that it is quite often useful still to
make more or less extensive reference to the provisions and the experience of the earlier Statute. There
are very few of the more important aspects of the present Court that have not been derived from the
equivalent provisions of the former revised Statute of 1929, which amended several articles in the light of
experience and added the new Chaper IV (Arts. 65-68 of the revised Statute) on advisory opinions.
It is remarkable that this Statute has, in more or less the same terms other than the changing of references
to the League of Nations into references to the United Nations, served the two courts for over 80 years. In
drafting the ICJ Statute, the numbering of the articles in the PCIJ Statute was left unchanged. Apart from
changes that were merely stylistic or dictated by the French version of the PCIJ Statute, 24 provisions
were amended and two provisions added towards the end, Arts. 69 and 70 on amendments filling “a
regrettable lacuna in the Statute, a lacuna the disadvantage of which has made itself felt in the past”.6 The
former system of re-election was found to have “the disadvantage that, despite the reelection of some of
the judges, continuity was not maintained beyond the nine-year period” 7 and was replaced by a new
system of renewal by one-third of the judges every three years. The PCIJ was dissolved on 18th April,
1946 by the Assembly of the League and it was the same day on which ICJ held its inaugural ceremony.
Sir Robert Jennings, “it was the accepted success of that Court [the PCIJ] that ensured the constitution of
its successor”.8
5
The International Court of Justice: Questions and Answers about the Principal Judicial Organ of the United Nations, 10th
ed. UN Department of Public Information
6
UNCIO XIV, p. 852
7
UNCIO XIII, p. 389
8
Jennings, Sir R,Y., The International Court of Justice after Fifty Years¸ AJIL 89 (1995), pp. 493-505
Organisation and Jurisdiction of the ICJ
The Court shall be composed of a body of independent judges, elected regardless of their
nationality from among persons of high moral character, who possess the qualifications required
in their respective countries for appointment to the highest judicial offices, or are jurisconsults of
The number of “members” of the Court, as the Judges are referred to in the Statute, has varied; but since
1929 Protocol for the Revision of the Statute of the PCIJ, in its revised Art. 3, and also since the 1946
Statute of the ICJ, Art. 3, para. 1, the number has remained as 15, with a quorum of nine as provided by
Art. 25, para. 3 of the Statute. The question of size is also tempered by the provisions in Art. 9 that “in the
body as a whole the representation of the main forms of civilization and of the principal legal systems of
the world should be assured”. These are not qualifications that lend themselves readily to definition.
The “members” or judges of this Court are elected by the General Assembly and Security Council
(voting separately) from a list of qualified persons drawn up by the national groups of the Permanent Court
of Arbitration, or by specially appointed national groups in the case of UN members that are not
represented in the PCA. This provision was inserted to restrict political pressures in the selection of judges.
Candidates must obtain an absolute majority of votes in both the Assembly and the Council, 9 and no two
successful applicants may be of the same nationality. The elections are staggered and take place once
every three years, with respect to five judges each time. In this way some element of continuity amongst
the Court is maintained. The members of the Court are elected for nine years and may be re-elected.10
9
Article 10, Statute of the ICJ
10
Article 13, Statute of the ICJ.
They enjoy diplomatic privileges and immunities when on official business, 11 and a judge cannot be
dismissed unless it is the unanimous opinion of the other members of the Court that he or she has ceased
to fulfil the required conditions. 12 These include the requirement that no member may exercise any
political or administrative function or engage in any other professional occupation. No member may act
as agent, advocate, or counsel in any case and no member may participate in the decision of any case in
which he has previously taken part as agent, advocate or counsel for one of the parties, or as a member of
a national or international court, or of a commission of inquiry, or in any other capacity. 13 The Court elects
It is clear however that this representative function of the judges has to mean that a sitting of the full court
of all the members may be seen as carrying greater, or at least broader, authority than a chamber of a few
members.14 Maybe this is the reason why most governments minded to bring cases before the Court’s
contentious jurisdiction elect to go before the full Court rather than before chambers. And indeed the Rules
and the practice of the Court reflect this notion that a large element of the undoubted authority of the Court
is derived from its ensuring this representative capacity even in the details of its procedures and decision
making.15
It must also be borne in mind however that, if the full Court is to be the main workhouse of the Court
system, the total membership must be within reasonable limits if the Court is to be able to involve the
entire membership in carrying out the work of the Court’s decision-making. This is often far from easy to
ensure even 15 members (which may be inflated to 16 or 17 with ad hoc judges). Enlargement of the
Court’s membership, or indeed any serious extension of the use of ad hoc chambers if the Court would
11
Article 19, Statute of the ICJ.
12
Article 18, Statute of the ICJ
13
Articles 16 and 17, Statute of the ICJ.
14
Zimmermann, Andreas, The Statute of the International Court of Justice: A Commentary, Oxford University
Press, p.9
15
Jennings, Sir R.Y., The Internal Judicial Practice of the International Court of Justice, BYIL 59 (1988), pp. 31-47
entail a fundamental change in the basic principles governing the ways in which the Court works. Such a
change might eventually be found to be necessary and even desirable if the work of the Court continues
to expand. But the qualities that the Court’s existing procedures have brought about should not be lost
• Contentious Jurisdiction
• Adversarial Jurisdiction
Contentious jurisdiction involves States that submit the dispute by consent to the Court for a binding
decision, whereas Advisory jurisdiction concerns questions referred to the Court by the
General Assembly, the Security Council or other organs and specialized agencies of the United Nations.
Those questions can only refer to legal questions arising within the scope of their activities. Advisory
opinions given by the International Court of Justice are not binding. The International Court is a judicial
institution that decides cases on the basis of international law as it exists at the date of the decision. It
The consensual basis of the Court’s contentious jurisdiction- the only jurisdiction or the
Court has to make decisions that are legally binding upon the parties- is not merely inherited from the
Statute of PCIJ but is also a concomitant of a fundamental principle of international law itself.17 Under
Article 34 of the Statute, only states may be parties in contentious cases before the Court and hence
submit cases to it. The Court cannot therefore consider disputes between a State and an international
16
Fisheries Jurisdiction case, ICJ Reports, 1974, pp. 3, 19; 55 ILR, pp. 238, 254
17
Dinah L. Shelton, Form, Function, and the Powers of International Courts, 9 Chi. J. Int'l L. 537 (2009) 19 Ibid
organization, or between two international organizations nor can it deal with the numerous written or
individuals that are received at the Registry, however meritorious or moving they may be. The ICJ can
deal with a case only if the States involved have in some manner or other consented to be made a party
to the proceedings before the Court. This is a fundamental principle governing the settlement of
international disputes, States being sovereign and free to choose the means of resolving their disputes.
In addition to having the capacity to decide disputes between states, the ICJ may give advisory
opinions. Article 65 of the Statute declares that ‘the Court may give an advisory opinion on any
legal question at the request of whatever body may be authorised by or in accordance with the
Charter of the United Nations to make such a request’, while article 96 of the Charter notes that as
well as the General Assembly and Security Council, other organs of the UN and specialised
agencies where so authorised by the Assembly may request such opinions on legal questions
arising within the scope of their activities. The advisory procedure is available to certain public
international organizations (namely organs and specialized agencies of the UN) and enables them
to request an advisory opinion from the Court on a legal question.19 Unlike contentious cases, the
purpose of the Court’s advisory jurisdiction is not to settle, at least directly or as such, inter-state
disputes, but rather to ‘offer legal advice to the organs and institutions requesting the opinion’. 18
This way of proceeding is different in mode, effects and feel from the political arena in which case
will probably have been dealt with hitherto. The requirement here is that the parties at various
stages present their submissions which are designed to have the effect of reducing the matter into
listed, particular disputed issues of law or fact, which particular issues the Court is invited to
18
The Legality of the Threat or Use of Nuclear Weapons case, ICJ Reports, 1996, pp. 226, 236; 110 ILR, p. 163
determine. These issues henceforward become the focus of the argument of the parties and
of the cases it has decided. The work has inevitably changed from time to time in accordance with the
changes in the international community that the Court exists to serve and of which it is a part.
decolonization which, in the first decades of the new Court produced a significant and increasing number
of new and independent sovereign States members of the United Nations. ICJ made a distinguished start
with its first case, the Corfu Channel case19. After the Court has rejected preliminary objections to the
jurisdictions, the parties were then able, under some pressure from a recommendation from the Security
Council, to enter into a Special Agreement. It was a very good beginning for the Court; indeed, the
principal decision of the Court was adopted as law in Art. 16, para. 4 of the 1958 Convention on the
Bolder, but very influential, was the judgment in another maritime matter, the Norwegian
Fisheries case 20 . The Court’s decision was quickly accepted and adopted as Art. 4 of the Geneva
Convention on the Territorial Sea23, which was in 1982 also incorporated in the UN Convention on the
Law of the Sea. Other judgments in the first decade were also important but nothing so farreaching as the
first two.
19
Corfu Channel (United Kingdom/Albania), ICJ Reports (1948)
20
Norwegian Fisheries case (United Kingdom/Norway) ICJ Reports (1951) 23 UN
Doc. A/Conf.13/L.52-L.55
During this, the Court was also occupied with requests for advisory opinions. These included two opinions
on the Admission of States to the UN21 and an important opinion on Reservations to the Genocide
Convention22.
affected nomination of candidates for membership of the Court. For some time there had been informal
regional groupings of governments in the UN, but in 1957, the General Assembly officially recognized
their existence. The actual work load of the Court fell a little in the second decade, but included several
difficult cases; and two judgments about South West Africa, one in
1962 and other in 1966, proved very damaging to the Court (South West Africa Case23)
a marked falling in the cases during the early 1970s, but it began to pick up again towards the end of this
third decade. There was a very promising burgeoning with what is still one of the most landmark cases at
any time: the North Sea Continental Shelf case24 with Denmark and Netherlands on one side and the
Federal Republic of Germany on the other. This is still one of the most cited decisions and was
incorporated into Art. 76 of the 1982 UN Convention on the Law of the Sea. Despite a bad beginning to
the third decade, it was rather splendid that the work was carried on mostly well.
21
Conditions of Admission of States to the UN (Article 4 of the Charter), ICJ Reports (1948)
22
Reservations to the Genocide Convention, ICJ Reports (1951)
23
South West Africa (Ethopia/South Africa; Liberia/South Africa), ICJ Reports (1961)
24
North Sea Continental Shelf Case (Germany/Denmark; Germany/Netherlands), ICJ Reports (1969)
[3.D] 1976 to the Present Time
Now, the Court has a very long General List of cases waiting to be dealt with. The Court can now be said
to be very busy and indeed hard pushed to cope. The geographical spread of the Court’s work amply shows
that it has already become more nearly a world court. This is paralleled by the spread of subject matter of
the cases.
Boundary disputes and maritime boundary disputes in particular, are apt to encourage neighbouring third
parties to try to intervene. A like question arose in the Continental Shelf case25 between Libya and Malta
where Italy wished to intervene and made an impressive case. The part played by the Court in the
development of the law of the sea has been impressive so far. It is true that the third UN Conference on
the Law id the Sea agreed on creation of a new court for this matter. But it took a considerable time before
the new court was established and in the meantime the ICJ had a large number of cases already made the
general international law of the sea as very much its own subject.
Also, the environment is a topic, which, at least eo nomine, has features in the work of the Court only in
the recent decades, for it is only recently that the conservation of the environment has become a separate
heading in its own right in the general system of international law. A notable judgment is the Gulf of
Maine case26 in that matter. However, advisory opinions in these recent years have been few compared
with the number of contentious jurisdiction cases. This may be noted because of the international
organizations having their own procedures for dispute resolution. So, generally speaking one can expect
a qualified organization to seek such interference only when it wants to pass to the Court the responsibility
of deciding.27
25
Continental Shelf (Libya/Malta), ICJ Reports (1984)
26
Gulf of Maine, ICJ Reports (1984)
27
Agarwal, Dr. H.O., International Law and Human Rights, 20th ed. Central Law Publications
Conclusion
The hypothesis previously given can be reasonably said to be disproved by the later findings in the projects
done by the researcher. The assessment of the position of the ICJ at the present time can only be that it is
prospering as never before. Having both contentious and advisory jurisdictions, it has a vast number of
matters related many subjects in its platter. The Court possesses no express power of judicial review of
UN activities, although it is the principal judicial organ of the organisation and has in that capacity dealt
on a number of occasions with the meaning of UN resolutions and organs. One of the most heartening
features of the present resurgence of the interest in the ICJ has been the part played by some African states,
as also the continuing loyalty of the Latin American states to the Court. If one seeks reasons for these
changes, there are no doubt many. But one should certainly not forget one of the main reasons: the
influence of counsel who was encouraged their government clients to approach the Court. This powerful
and very healthy influence of what might now usefully be called the International Bar, has been of the
greatest importance to the ICJ. There is an aspect of the happy resurgence of the Court that may finally be
noted: the way the Statute of the Court has continued to serve the Court through times good and bad
through more than half a century and is still found eminently workable. One can only pay humble homage
to those who, in 1920, then in 1929, and again in 1946, produced this astonishingly successful piece of
drafting.
References
• Books
o Zimmerman, Andreas, The Statute of the International Court of Justice: A
Commentary, Oxford University Press o Shaw, Malcom, International Law, 6th ed.
Cambridge University Press o Agarwal, Dr. H.O., International Law and Human Rights, 20th
ed. Central Law Publications
• Articles o The International Court of Justice: Questions and Answers about the Principal
Judicial Organ of the United Nations, 10th ed. UN Department of Public
Information o Dinah L. Shelton, Form, Function, and the Powers of International Courts,
9 Chi. J. Int'l L. 537 (2009)
• Websites
o The International Court of Justice, www.icj-cij.org, Last Accessed on 10 Feb, 2017.
• Statues
o Statute of the International Court of Justice