WHO CAN SUBMIT CASES TO THE INTERNATIONAL COURT OF JUSTICE?

Introduction

The International Court of Justice is the only International Court in the world that decides disputes between states. ICJ gives binding rulings and advisory opinions, acting as an essential source of International law. ICJ is also known as the 'World Court' and is one of the United Nations' principal organs.

International Court of Justice was established on 26th June 1945 in San Francisco, California, the United States by the United Nations Charter and began work in April 1946. It is the successor of the Permanent Court of International Justice (PCIJ). The seat of the ICJ is located at the Peace Palace in The Hague (Netherlands).

ICJ consists of a panel of 15 judges elected by the General Assembly and Security Council for a period of nine years. ICJ has a rule that no more than one judge of the same nationality can serve in the Court simultaneously to encourage diversity in representation. Judges are expected to represent the principal civilizations and legal systems of the world.

Who may submit cases to the International Court of justice?

The first and foremost thing for any Court to be eligible to arbitrate in a dispute or decide a case is 'Jurisdiction.' According to Article 93(1) of the UN Charter, all the member States are ipso facto parties to the Court's statute, and according to Article 93(2) of the same charter, a non-member State of the United Nations can become a party to the Court's Statute on conditions determined by the General Assembly upon the recommendation of the Security Council.

Nevertheless, being party to the statute doesn't automatically give the Court jurisdiction to decide or arbitrate in the party States' disputes. The International Court of Justice has jurisdiction in three types of cases:

1) Contentious cases: It involves cases between states where the court orders binding rulings to states that have mutually agreed to comply with the Court's ruling.

2) Advisory opinions: It provides rational and cogent yet non-binding rulings or opinions on questions submitted by the United Nations General Assembly or Security Council.

3) Incidental jurisdiction: The Court's power to give interim measures to parties in dispute until a final judgment is delivered.

1) Contentious cases

In contentious cases, the ICJ gives a binding ruling in a dispute between states mutually agreeing to comply with the Court's ruling. ICJ decides cases of States exclusively. Individuals, non-governmental organizations, corporations, or other private entities are excluded from the Court's jurisdiction.

Nevertheless, a State in 'diplomatic protection' can bring a case on behalf of its nationals or corporations and plead arguments against another State for the illegal acts inflicted upon its nationals. The ICJ may intervene in such a scenario as the case becomes a dispute between States.

For instance, A complaint by the Republic of India regarding a death penalty verdict against an Indian citizen, Kulbhushan Jadhav, by a Pakistani military court. On 17th July 2019, ICJ ruled that Pakistan must review Kulbhushan Jadhav's death sentence. The jurisdiction of ICJ is based only upon consent. Article 36 of ICJ statute delineates bases for the Court's jurisdiction which include,

1) According to Article 36(1), the case's jurisdiction extends to the parties who refer to the Court, i.e., jurisdiction founded on 'special agreement.' This provision is based upon explicit consent rather than true compulsory jurisdiction. This type of jurisdiction is the most productive as the concerned parties desire to resolve the dispute by the Court's intervention. The parties are more likely to comply with the Court's decision.

2) Article 36(1) also empowers the Court to decide matters "specially provided for in the Charter of the United Nations or treaties and conventions in force." Modern treaties specify a compromise clause for dispute resolution by ICJ. Cases dependant upon this clause for jurisdiction are ineffective as compared to cases based on the special agreement as the state may or may not comply with the Court and defy its decision by questioning Court's jurisdictional authority or claiming the case to be the state's internal matter not subject to international law.

3) According to Article 36(2) the states can declare that they accept the Court's jurisdiction irrespective of any special agreement voluntarily to resolve legal disputes concerning the interpretation of any treaty, any question of international law, or any breach of an international obligation. Article 36 (3) & (4) states that declaration can be made unconditionally or a condition of reciprocity by specified states for a stipulated period and declarations deposited with the United Nations Secretary-General.

4) Article 36(5) clarifies jurisdiction based upon the declarations made under the Permanent Court of International Justice's statute. Apart from this Court may also have jurisdiction on the basis of 'Forum Prorogatum,' i.e. Prorogued jurisdiction, which occurs when power is conferred by the parties' consent to initiate proceedings in the International Court of Justice, which on normal circumstances could not be adjudicated.

2) Advisory opinions

Advisory opinions are reasonable non-binding rulings made by the Court at the request of the United Nations General Assembly or Security Council. On receipt of a request, the Court allows states to present written and oral statements, and after perusing it, the Court may give advisory opinions. Advisory opinions are consultative in nature and non-bin, an, and however\, there are influential and revered by the States.

3) Incidental jurisdiction

Incidental jurisdiction is the Court's prerogative to give interim measures to parties in dispute until a final judgment is delivered. The Court is competent to order interim measures to protect a party's rights to a dispute. Both the parties can apply for issuing interim measures to the ICJ.

Conclusion

In the International Court of Justice, only States can submit cases. Individuals, NGOs, corporations, or other private entities are excluded from the Court's jurisdiction. The Court still has limits to decide cases in matters of states as well.

The ICJ can give a binding ruling only in contentious cases when there are disputes between States which have given their explicit consent in the form of special agreement to comply with the intervention of the Court or States that have been advertently declared to accept the Court's jurisdiction irrespective of any special agreement.

In other cases, at the request of the United Nations General Assembly or Security Council Court can give advisory opinions that are legal, reasonable, and authoritative. Nevertheless, it is considered as more consultative and non-binding rulings.

Author: Shweta Singh