Author: Vrushti Sanghavi, 2nd Year, LL.B, Jitendra Chauhan College of Law, Mumbai.
The article has been written by the author while pursuing the internship programme with us.
The International Justice Court serves as the principal justice organ of The United Nations. The International Justice Court is located at Peace Palace in The Hague, Netherlands. It was founded on 26th June 1945 by the Charter of the United Nations. It provides to resolve and settle the issues between nations and uphold peace at all times acting like the World Supreme Court. The official languages used in the court are French and English. The International Justice Court is a representative of upholding peace for a developing world with pacifying international disputes. Article 33 of the United Nation Charter list downs different methods to resolve a dispute between nations. The main method to resolve any dispute is through the old-age method of arbitration.
FORMATION OF IJC:
To have a clear elucidation, let us descend into the past and understand the reason behind its formation. During the second Hague Peace Conference in 1907, The United States President advised forming a permanent tribunal once again after the Peace Conference in 1899 failed to achieve the desired objectives where the judges can be appointed for full-time roles who would devote their entire time to the court. But, this proposal never saw the light of the day and was quashed the very same day when the idea to form a permanent tribunal was placed, on grounds of lack of common measures to appoint the judges. But, in the near future, the proposal served as an enshrined document for the drafting of the Statute of the Permanent Court of International Justice (PCIJ).
After World War 1 ended, Article 14 of the Covenant of the League of Nations gave responsibility to the Council of the League for formulating plans to establish PCIJ. The main objectives of PCIJ were not only to listen to the disputes brought up by nations but also to give advice to The Council or Assembly of League of Nations. The new Statute did resolve the problem pertaining to the election of the members by providing a solution that the judges were to be elected concurrently, but independently, by the Council and the Assembly of the League. The members had to showcase “the main forms of civilization and the principal legal systems of the world.” Between 1922 and 1940, the PCIJ dealt with 29 contentious cases and issued 27 advisory opinions. But, at the onset of the Second World War in September 1939, The PCIJ had no choice but to reduce its functionality due to the international tension and gave its final orders in February 1940. Further, the PCIJ was out of business and had no role to play.
Meanwhile, on 30th October 1943, China, the USSR, the United Kingdom and the United States issued a joint declaration recognizing the necessity “of establishing an international organization, based on the principle of the sovereign equality of all peace-loving Nations for the maintenance of international peace and security”.
Under the chairmanship of G. H. Hackworth (The United States), the committee was entrusted to prepare a draft statute for the future International Court of Justice. Although, the draft was not entirely new but was based on the statute of the PCIJ. The Conference was in favour of the creation of an entirely new court, which would be a principal organ of the United Nations, which shall have the same footing as the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and the Secretariat. The Permanent Court of International Justice was the predecessor whose powers and roles were then transferred to the International Justice Court in June 1945.
STATUTE OF THE COURT:
The International Court of Justice was established by the Charter of the United Nations. It provides that all Members of the United Nations are ipso facto parties to the Court’s Statute. The Statute contains the composition and functioning of the Court. The Statute of the International Justice Court consists of a total of 70 Articles which are divided into five chapters. Each chapter plays an important role in defining what are the functions and roles of the court. The Statute makes the International Justice Court what it is. The chapters of the Statute deals from organisation of the court to competence of the court to advisory functions to laying down procedure if there be any need of amendments be made in the Statute.
The International Court of Justice consists of 15 judges elected to nine-year terms of office by the United Nations General Assembly and the Security Council. In order to be elected, a candidate must receive an absolute majority of the votes in both bodies. Currently, the Court elected Judge Abdulqawi Ahmed Yusuf (Somalia) as President and Judge XueHanqin (China) as Vice-President.
The well-written document, Statutes, provides the jurisdiction of the Court. The International Justice Court has two-fold jurisdiction: mainly of Contentious Jurisdiction and of Advisory Jurisdiction. In ordinance with Contentious cases, the IJC conducts legal proceedings for settling the breach of International laws which are submitted by States. An international legal dispute can be defined as a disagreement on a question of law or fact, a conflict, or a clash of legal views or interests between States. Article 35 of the Statute lists down the conditions where the State can approach the court for any international legal dispute. The basis of jurisdiction in Contentious Cases depends on the consent of the opposite State to a legal proceeding. The form in which the consent is expressed determines the nature of the proceedings which have been mentioned in the Statutes.
The advisory jurisdiction plays an important yet developing function for the International Justice Court. Despite the advice not being a compulsion, it contains a great deal of Legal as well as Moral Value. It helps in soothing the diplomatic relations between two states and helps to keep disputes at an arm’s length. It also helps in developing and clarifying and having a deeper sense of international law.
LAWS GOVERNED BY IJC:
The International Justice Court deals with matters relating to international law. The international law consists of Land and Maritime Boundaries, territorial sovereignty, diplomatic relations, right to asylum, nationality and economic rights. Any State undergoing any breach of such laws or requires advice can seek up to the International Justice Court for guidance.
Some of the major landmark Contentious case judgments are:
● A complaint by New Zealand for Whaling in the Antarctic by Japan in 2010 – Japan, was accused by Australia in May 2010 for pursuing a large scale whaling programme for its whale research in Antarctica. The court at first didn’t question as Japan had various special permits issued for its whaling programme where they killed and took whales for examination. Further after the court’s investigation, it came out as they had been using lethal methods for the program named JAPRA II and Japan had breached several provisions.
● A complaint was filed on the basis of violation of international law by the United States of America in 1980 that Iran was detaining American diplomats in Tehran – According to the case, it came out clear that Iran violated and was still violating its obligations which they owe to the United States government and the Iranian Government was asked to secure the immediate release of the Diplomats and civilians.
● A dispute regarding the delimitation of the continental shelf between Tunisia and Libya – As per the norms, the International court was asked to limit the area of the sea bed as per the survey, but according to the judgement passed, the court said that according to the facts of the case, the two will have to settle on equitable basis.
● A complaint by Iran after the shooting down of Iran Air Flight 655 by a United States Navy guided-missile cruiser – The Republic of Iran had moved to the International Court of Justice as the US Cruiser Missile had taken down one of the Iranian commercial flight causing deaths and injuries. The parties from both the Government had decided to sit across the table and settle it outside the court and the court was asked to postpone the oral proceedings. And the final outcome was the parties from both the government had agreed to a settlement outside of the court.
One of the case law which particularly stood out was “Jadhav Case” between India and Pakistan. Mr Jadhav was charged with espionage by Pakistani Authorities. On 8th May, 2017, India filed an application instituting proceedings against Pakistan in respect of a dispute concerning alleged violations of the Vienna Convention “in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav,” who was sentenced to death by a military court in Pakistan in April 2017. India alleged that Pakistan had failed to mention the arrest and detention of the Indian nationalist. And it had further not informed Mr Jadhav of his rights under Article 36 of the Vienna Convention on Consular Relations and furthermore denied his right to a legal representative. The Court had asked Pakistan to not carry out the execution of Mr Jadhav until the judgement was heard. Public hearings on merits were heard relating to the case. The Court pointed out that Pakistan had informed India of the arrest and detention but three weeks later and thus breached the “without delay” part of the Convention. The Court ruled out the judgement in India’s favour. With regard to India’s contention that it was entitled to restitution in integrum. The Court requested to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, and its further request for the release of Mr Jadhav and facilitate his safe passage to India.
As before the norms and regulations were placed in the Second Peace Convention in Hague, with respect to the International Court of Arbitration which was recognized by the countries which were a part of convention, various plans were provided by the national and international members to build up the International Court of Justice which culminated in the creation of Permanent Court of International Justice (PCIJ).
While in recent times, the International Justice Court has the recent application of the Convention on the Prevention and Punishment of Crime of Genocide, commonly known as “Rohingya Genocide Case” of the Gambia v. Myanmar. The application was made on 11th November 2019 and is still in process. But, The Court is known for upholding peace and serving a fair and just trial to all States. And nothing else shall be seen in this case too. As it is truly said, “A National Justice system will keep the Country running but, A World Court will keep the world a safe place for every Nation.”. Although the court is known for maintaining peace and serving a fair trial to all the states, it has faced enough criticism regarding the rulings and procedure for the court, as various limitations and exceptions are stated as to who and whom can file an appeal in the ICJ.
 The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
 The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it.
 1. The Court shall be open to the states parties to the present Statute.
2. The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.
3. When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall not apply if such state is bearing a share of the expenses of the Court
Jadhav Case, India v Pakistan, Provisional Measures, ICGJ 515 (ICJ 2017),  ICJ GL No 168, 18th May 2017, United Nations [UN]; International Court of Justice [ICJ]
 requires a nation arresting or detaining a foreign national to afford the detainee access to his or her consulate and to notify the foreign national of the right of consular access.