WHY SOME DISPUTES BETWEEN STATES ARE NOT CONSIDERED BY THE INTERNATIONAL COURT OF JUSTICE?

Law International Law
18-Feb-2021
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Introduction

The International Court of Justice is the only Court in the world that interprets international law and resolves disputes between States. ICJ order judgments that have binding rulings and advisory opinions that have non-binding rulings. ICJ is one of six principal organs of the United Nations; it is also known as the 'World Court'. International Court of Justice is the successor of the Permanent Court of International Justice (PCIJ). It was first established on 26th June 1945 in San Francisco, California, the United States, by the United Nations Charter and began work in April 1946.

The ICJ seat is located at the Peace Palace in The Hague (Netherlands), consisting of a panel of 15 judges elected by the General Assembly and Security Council for a tenure of nine years. No more than one judge of the same nationality can serve in the Court simultaneously to ensure representation of maximum States.

To understand the International Court of Justice in dispute resolution simultaneously, it's essential to understand the jurisdictional power and limits of the Court.

Jurisdiction of International Court of Justice

Article 93(1) of the UN Charter explains that all the member States are ipso facto parties to the Court's statute, and according to Article 93(2) of the said 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. Notwithstanding, only being party to the statute doesn't give the Court jurisdiction to decide or arbitrate in disputes of party States per se. The International Court of Justice has the following types of jurisdictions.

1) Contentious Cases: It consists of cases where the court orders binding rulings to states in disputes. It applies only to states that have mutually agreed to conform with the ruling of the ICJ.

2) Advisory Opinions: It provides reasonable but non-binding rulings or opinions on questions submitted at the United Nations General Assembly or Security Council's request.

3) Incidental Jurisdiction: In Incidental jurisdiction Court is competent to give interim measures to parties in dispute until the final verdict is rendered.

Read more: WHO CAN SUBMIT CASES TO THE INTERNATIONAL COURT OF JUSTICE?

Consent of the States as a prerequisite to determine jurisdiction in dispute resolution

The International Court of Justice can decide/arbitrate a dispute only when requested to do so by one or more States. It can neither take its own initiative/suo moto proceedings nor it is permitted under its Statute to investigate and pass rulings on sovereign States. The States in the dispute must have given explicit consent to the Court and voluntarily accepted its jurisdiction. This is a fundamental principle governing the resolution of international disputes since States are sovereign and independent to resolve their disputes. A State may give its consent in three ways:

1) Special agreement

2) Clause in a treaty

3) Unilateral declaration

1) Special agreement:

Article 36(1) of the ICJ statute explicates that the jurisdiction of the Court may extend when two or more States with a dispute on a specific issue mutually agree to submit the case to the Court and form an agreement for this very purpose this know as jurisdiction founded on 'special agreement'. This provision is based upon explicit consent rather than true compulsory jurisdiction. This kind of jurisdiction is the most efficacious as the concerned parties voluntarily desire to resolve the dispute by making the Court intervene. Due to this, the parties are more likely to conform to the Court's judgment.

2) Clause in a treaty:

Article 36(1) of the ICJ statute also empowers the Court to decide matters "specially provided for in the Charter of the United Nations or treaties and conventions in force." This treaty specifies a compromise clause for dispute resolution by ICJ. Over 300 treaties contain compromissory clauses, also known as jurisdictional clauses, by which States party to the treaty undertake to accept the jurisdiction of the Court when a dispute arises for the interpretation or application of the treaty. This type of case is conditional upon a compromissory clause for jurisdiction and thus, ineffective when compared with cases based on the special agreement as the state may or may not comply with the Court and refuse to conform Court's decision by defying Court's jurisdictional authority or claiming the case as state's internal matter which is neither subject nor accountable to International law.

In other words, each state that has recognized the Court's compulsory jurisdiction has the right to bring anyone or more other States, which have accepted a similar obligation before the Court by filing a case initiating proceedings with the Court. As it is called, this optional clause system has led to the formation of a group of States, each of which has given the Court jurisdictional authority to decide any dispute that might arise between them in the future. In principle, any State in this group has the prerogative or is entitled to bring one or more other States before the Court.

3) Unilateral declaration:

Article 36(2) delineates that the states can make a declaration to accept the Court's jurisdiction without any special agreement voluntarily to resolve legal disputes dealing with the interpretation of any treaty or any conundrum of international law or any breach of an international obligation. Article 36 (3) states that declaration can be made unconditionally or condition of reciprocity by specified states for a stipulated period. This declaration may contain reservations confining their duration or excluding certain types of dispute. Article 36(4) specifies declarations to be deposited with the Secretary-General of the United Nations.

Conclusion

The International Court of Justice can consider resolving disputes between States only in certain cases. Those States which have given explicit consent to the Court to intervene/arbitrate in their dispute through Special agreement according to Article 36(1) of ICJ statute when States mutually agree to conform and accept Court's binding rulings, Clause in a treaty in accordance with Article 36(1) of the ICJ statute when there's a compromise or jurisdictional clause in a treaty which is invoked when the dispute arises and lastly unilateral declaration, according to Article 36(2) of ICJ statute when States advertently agree to accept Court's jurisdiction without any special agreement to arbitrate. In this manner, ICJ resolves disputes between States.

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Author: Shweta Singh