Latest: International Court of Justice Elects 5 New Judges, Bolstering Its Independence

International Court of Justice

The International Court of Justice (ICJ), also known as the World Court, is the principal judicial organ of the United Nations. It was established in 1945 by the Charter of the United Nations and began its work in 1946. The Court has a dual role: to settle legal disputes submitted to it by States and to provide advisory opinions on legal questions referred to it by other organs or agencies of the United Nations. In this write-up, the UCN Team analyzes the International Court of Justice (ICJ), giving you key concepts and insights.

The ICJ is the successor to the Permanent Court of International Justice (PCIJ) which operated during the time of the League of Nations. After the League was dissolved in 1946, the PCIJ was also dissolved and replaced by the ICJ. The last president of the PCIJ, José Gustavo Guerrero from El Salvador, became the first president of the newly established International Court of Justice.

The headquarters of the ICJ is located in The Hague, Netherlands, at the Peace Palace. Unlike other major organs of the UN which are based in New York City, the ICJ is the only one situated at The Hague. However, all UN member states are automatically parties to the ICJ statute by virtue of being members of the UN.

ICJ Overview

Historical Background

• Establishment of PCIJ after WWI by League of Nations
• PCIJ dissolved in 1946 after end of WWII
• UN Charter established ICJ as successor to PCIJ
• First ICJ judges elected in 1946

The Permanent Court of International Justice (PCIJ) was established after World War I in 1922 by the League of Nations. It was the first permanent international court and served as a model for the later International Court of Justice (ICJ).

The PCIJ operated during the time of the League of Nations until 1946, when the League was dissolved at the end of World War II. With the dissolution of the League, the PCIJ also ceased to exist.

However, the need for an international judicial organ continued to be recognized. Therefore, the United Nations Charter which established the UN in 1945, also established the ICJ as the successor to the PCIJ.

The first judges of the ICJ were elected in 1946 by the United Nations General Assembly and Security Council. The Court held its inaugural sitting at the Peace Palace in The Hague on April 18, 1946, marking the official beginning of its activities as the principal judicial organ of the new United Nations.

So while the PCIJ ceased to exist in 1946, the newly established ICJ took its place as the principal judicial organ of the UN, carrying on the role played by its predecessor.

Relationship with United Nations

• The International Court of Justice is one of the six main organs of the United Nations, alongside the General Assembly, Security Council, Economic and Social Council, Trusteeship Council, and Secretariat.
• However, the ICJ is the only one of the six principal UN organs that is not headquartered in New York City. The ICJ is located at The Hague in the Netherlands.
• All UN member states are automatically parties to the ICJ statute by virtue of being members of the UN. However, this does not automatically give the ICJ jurisdiction over disputes involving UN member states.
• Key points regarding jurisdiction:
  • The ICJ only has jurisdiction if both parties to a dispute agree and submit to its jurisdiction
  • Jurisdiction is not automatic even though all UN members are parties to the ICJ Statute
  • The consent of states is essential for the Court to exercise jurisdiction over a dispute
• So while the ICJ is closely linked to the UN as its principal judicial organ, location and jurisdiction are two aspects where they differ. The ICJ’s jurisdiction relies on consent from disputing states.

Recent Developments

• In November 2023, the United Nations General Assembly (UNGA) and the United Nations Security Council (UNSC) elected 5 new judges to the International Court of Justice.
• The new judges who will start their terms in February 2024 are:
  • Bogdan-Lucian Aurescu (Romania)
  • Hilary Charlesworth (Australia)
  • Sarah Hull Cleveland (United States)
  • Juan Manuel Gómez Robledo Verduzco (Mexico)
  • Dire Tladi (South Africa)
• The judges were elected based on their qualifications and expertise in international law. Details on their credentials:
  • Ms. Charlesworth is a current ICJ judge and expert in international law
  • Ms. Hull Cleveland is a professor at Columbia Law School and expert on human rights
  • Mr. Gómez Robledo Verduzco has served as Mexico’s Deputy UN Ambassador
  • Mr. Aurescu is Romania’s former Foreign Minister and professor of law
  • Mr. Tladi is a professor of law at University of Pretoria
• Key points about the election process:
  • The ICJ has a total of 15 judges
  • Elections are held every 3 years for 5 open seats
  • Judges are elected for 9 year terms
  • Candidates must receive an absolute majority in both the UNGA and UNSC to be elected
  • No two judges can be from the same country
• The new appointments from diverse backgrounds help maintain the Court’s independence and impartiality in dispensing international justice.

Jurisdiction and Functions

• The International Court of Justice has two main functions:
  • Settling legal disputes between states that are submitted to it
  • Providing advisory opinions on legal questions referred to it by United Nations organs
• The Court is composed of 15 judges who are elected by the United Nations General Assembly and Security Council.
• The ICJ’s jurisdiction to hear disputes is based on:
  • The United Nations Charter which established the Court
  • The ICJ Statute which lays out the rules of the Court
• For the ICJ to have jurisdiction over a dispute:
  • The states involved must agree to submit the dispute to the Court
  • Jurisdiction only exists if both states consent through a special agreement or treaty
• Key points:
  • Provides legally binding judgments in contentious cases between states
  • Advisory opinions are non-binding but carry legal authority
  • Its composition and jurisdiction are defined by UN Charter and ICJ Statute
• So while all UN members are automatically party to the ICJ Statute, specific consent is still required for the Court to exercise jurisdiction over disputes between states.

India and the ICJ

• India has been involved in 6 cases at the International Court of Justice.
• 4 of these cases involved disputes between India and Pakistan:
  • Right of Passage over Indian Territory case (1960)
  • Appeal Relating to Jurisdiction of ICAO Council case (1972)
  • Trial of Pakistani Prisoners of War case (1973)
  • Aerial Incident of 10 August 1999 case (2000)
• The other 2 cases were:
  • Obligations concerning Nuclear Arms Race case filed by the Marshall Islands against India (2016)
  • Kulbhushan Jadhav case filed by India against Pakistan (2019)
• 4 Indian judges have served as members of the ICJ:
  • Sir Benegal Rau (1952–1953)
  • Nagendra Singh (1973–1988)
  • R.S. Pathak (1989–1991)
  • Dalveer Bhandari (since 2012)
• So India has long been an active participant at the ICJ, both as a party to cases and through Indian judges serving on the Court. The ICJ has played an important role in resolving India’s disputes with its neighbors.

Limitations and Challenges

• While the International Court of Justice plays an important role, it also faces some limitations and challenges:
• The ICJ has no direct enforcement mechanism to ensure compliance with its rulings. It relies on states to comply voluntarily.
• The Court can only act when disputes are submitted to it by states. It cannot act on its own initiative.
• The ICJ’s jurisdiction depends on states consenting to its jurisdiction in a particular case. Without consent, it cannot exercise jurisdiction.
• Key challenges:
  • Judgments are legally binding but the Court cannot force states to comply
  • It has to rely on states agreeing to its jurisdiction case-by-case
  • No power to take up issues independently without a state first referring a case
• While judgments carry legal authority under international law, the ICJ lacks mechanisms to enforce rulings or sanction non-compliance.
• Therefore, effectiveness of the Court depends on the willingness of states to utilize the ICJ and abide by its judgments. Expanding the Court’s utilization remains a challenge.

Final Thoughts

According to the UCN team’s analysis, the International Court of Justice remains an important pillar of the international legal system even though it faces some limitations. The recent election of new judges to the Court is a positive step in maintaining its independence and legitimacy. The ICJ continues to play a key role in peacefully settling legal disputes between states and providing authoritative interpretations of international law.

Despite lacking strong enforcement mechanisms, the ICJ contributes to upholding the international rule of law. Its legally binding judgments carry substantial weight and moral authority. The fact that states like India and Pakistan have repeatedly chosen to bring disputes to the ICJ demonstrates its value. Even if compliance is imperfect, the Court provides an important judicial forum for inter-state disputes.

Going forward, enhancing the ICJ’s utilization and compliance with its rulings will strengthen its effectiveness. But the Court’s unique role and significance in global justice persists despite its challenges. The ICJ remains indispensable for a rules-based international order.