ARTICLE 36 AND ICJ JURISDICTION: MAPPING THE TERRAIN OF INTERNATIONAL DISPUTE RESOLUTION BY - VEDANSH SHARMA
ARTICLE 36 AND ICJ JURISDICTION: MAPPING THE TERRAIN
OF INTERNATIONAL DISPUTE RESOLUTION
AUTHORED BY - VEDANSH SHARMA[1]
Abstract
The
International Court of Justice is the primary judicial authority of the United
Nations (U.N.). The organization is trusted with a wide scope under Chapter XIV
regarding this Charter in the U.N. or under the laws. However, Fundamental
difficulty stems from Article 36(1) of the Act, which requires the court to
hear only cases filed before it with the assent of both parties. This Court has
no authority to require any citizen of the states to appear before it and it
cannot even determine this case ‘ex aequo et bono’ until these parties
have agreed on this in their agreement.
This paper
addresses incidents in which the court's authority and powers, as embodied in
the declaration and laws, were curtailed since there is an absence of
jurisdiction, making the judicial system appear insensitive. The paper analyzes
the UN Court of Justice's role, or This study examines the UN Court of
Justice's role or collaborations. Together with the U.N. bodies, particularly the
U.N. Security Council or Assembly of Nations.
Lastly, the
paper deals with the views of various international Jurists on the manner in
which the UN Court of Justice might be more empowered to fulfill this
obligation it is entrusted with.
Keywords:
Jurisdiction, International Court of Justice, United Nations, U.N. Security
Council, Parties Autonomy.
Introduction:
-
The UN has the International Court of Justice[2] as
its primary judicial organization replacing the PCIJ (Permanent Court of
International Justice) which has been in existence since the Covenant of League
of Nations.[3]
In basic terms, it is an extension of the Permanent Court, with essentially the
same regulations and powers, as well as an ongoing sequence of cases that do
not distinguish among those decided by the ICJ and the PCIJ.[4]
This International Court of Justice, established
according to Chapter XIV of the UN Charter[5] is
located at The Peace Palace in The Hague, Netherlands. Its elementary goal is
to find a solution to legal disagreements amongst countries using rules of
international law, while also delivering advisory opinions on topics raised by different
organs of the UN and the specialized agencies under it.
The court's
panel comprises 15 judges selected for 9-year tenures by “the UN General Assembly as well as
the Security Council.[6]
The selection is made from a list of qualified candidates provided by the” International Court of
Arbitration's national groups or national specially appointed in circumstances
when UN members do not have representation on the PCA.[7]
The process of selecting ICJ judges has faced considerable criticism for its
political nature, though finding a completely apolitical solution seems
challenging given the current circumstances.[8]
The primary languages used in the judicial processes are French and English.[9]
Top of Form
The ICJ's jurisdiction is explained in Chapter II of the
statute, with Articles 33-38 covering the different aspects associated with the
competence of the court and its jurisdictions. According to the statutes, only
nation-states may bring disputes before the court, which would be decided in line
with recognized principles of public international laws. All state parties are
granted equal stature at the court, extending even to nations that are not UN
members but still have the right to approach this court.[10]
Competence
of the International Court of Justice:-
The ICJ, as
the principle judicial entity which resolves disputes between nations based on
prevailing international law, lacks the capacity to enact new laws or
participate in formal lawmaking, therefore it merely states existing laws and
does not legislate on the topic at hand.[11]
Even while applying the law, the court must state the legislation and identify
the fundamental structure or tradition on which it is based.[12]
The ICJ is
often recognized as the protector of humanity and “the guardian of the legality of the
international community, both within” the ambit of the UN and beyond it.[13]
The issue
of the court's judicial function was addressed in Serbia and Montenegro
v. the UK,[14]
where the three factors that guided the court were extensively considered.
The 1st criterion is developing consistency with previously
decided cases, i.e. this concept of stare decisis; there is 2nd
certitude, in which the court is obligated to select the most protected grounds
in existing laws; and lastly, as the significant and most crucial aspect of the
judicial system of the UN, it must consider the implications and consequences
of the decision on the other cases which are presently approaching the court or
are to be brought before the court in the future.[15]
The court has clarified that the matter presented before it
can also be brought before other governing bodies within the United Nations.
However, the judiciary's Role is primarily administration of law and
adjudicatory, distinct from the responsibilities of other organs. As a result,
both the different organs and the court have separate duties to fulfill,
allowing them to complement each other's functions simultaneously.[16]
In such cases, this court is authorized to issue conditional protective
measures.[17]
Nature of
Disputes: -
This issue
that should be presented before the court must constitute a legal dispute, as
stipulated in Article 36(2) of this Statute.[18]
The interpretation of the term "legal dispute" was addressed in this Mavrommatis
Palestine Concessions (Jurisdiction) case.[19]
In this case, the PCIJ concluded that any disagreement involving an issue of
law or a divergence in legal interpretations or preferences amongst
participants, falls within the scope of legal disputes, provided that such
determination does not create international fiction or provoke new conflicts.
Additionally, the court determined that questions regarding the existence of an
international conflict are objective in nature and will vary considering the
particulars of every instance.[20]
A case is
termed a legal conflict when the party responding to an applicant before the
Court simply denies the claims stated, even if the Court's jurisdiction is
questioned.[21] It
is essential for each party to offer their viewpoints, and particularly for the
complainant to explain to the Justice the issue from which it wishes to seize
the Court[22] and
the court has the exclusivity on deciding the subject matter or the issue of
controversy before it.[23]
Contentious
Jurisdiction of the International Court of Justice: -
The ICJ's
authority can be broadly classified into 2 distinct groups: first, its ability
to resolve disputes amongst jurisdictions, and second, its rendering of advisory
opinions to other agencies of the UN when asked or requested.
The Court
has demonstrated that the determination of its authority falls within its own
purview, and it is the sole authority in deciding the jurisdictional aspects.
While a party must substantiate any alleged fact, the question of “jurisdiction is a legal issue to be
resolved by the court based on the” pertinent facts.[24]
It's crucial to note that the Court, when addressing jurisdictional issues,
doesn't place as much emphasis on formalities as it will typically under domestic
laws.[25]
The court's
intention when determining jurisdiction is exclusively to assess if the
proceeding is on its own merits is entitled to continue "and not to
engage in a clarification of a controverted issue of a general nature,"
although “a case is
not going to be reduced solely on the basis of alleged motives of the parties
or because the judgment may have consequences in” another case.[26]
It is
crucial to note that after the court has delivered its judgment on the issue of
jurisdiction, the judgment will assume the status of res judicata,
making it definitive and binding on both parties,[27]
but it can only be altered in light of Article 61 of the statute.
The “parties to the dispute and their agreement
establish the court's jurisdictional authority, but at the same time, the
application must be admitted by the court.[28] Specifically, the claims must be relevant to
the broad basic concepts of international laws.
Jurisdiction
of Court under Article 36(1) and 36(2):-
The ICJs have
authority under Article 36(1) of its statute to hear cases brought to it by” the nation-state parties,[29]
as well as on issues specifically stated in the UN Charter, or the agreements,
conventions, and treaties applicable as of date.[30]
In the case of Minquiers and Ecrehos[31]the
issue of jurisdiction of the court was addressed. It was held that the “parties may refer a particular dispute
to the court for its jurisdiction via a special agreement that defines the
conditions of the contention and the laws and framework under which the court
is anticipated to” operate.
The Court's
authority is established through the party's consent to the dispute,[32]
which does not necessarily require a specific form, or in convinced situations,
the Court may deduce it from the actions of the parties.[33]
However, for jurisdictional purposes, consent must be unequivocally evident or
not merely a formal construct.[34]
The Court has stressed that this approval must be both independent or beyond
dispute.[35]
The court
is not able to rule “on the
legal rights of a third state that is not a party before the court in the proceedings
and can only exercise jurisdiction with express and implied consent. It cannot
accept actions between states that actually involve a 3rd state
without its permission; thus, if legal interests for this 3rd party ‘would constitute the very subject
matter of the decision,’ the Court could not consider proceeding in the absence
of” those
states,[36]
limiting this capacity for the court to utilize authority over the matter.
In this East Timor case,[37]
this Court determined that it lacked the authority to assess the legality of
actions by a non-party state in the case, regardless of the nature of the
obligations involved, including erga omnes obligations including the
important issue of right to self-determination.
Furthermore, this Court can take jurisdiction around
disputes arising from international treaties that include a ‘compromissory
clause’ allowing for this.[38]
Consequently, many international treaties, whether bilateral or multilateral,
include provisions granting the ICJ jurisdiction over issues arising from the
interpretation and implementation of such treaties and agreements.
Objections
to jurisdiction, based on this argument Article 31 was not designed to function
as an independent power but rather served as a constraint for the parties to
submit unilateral statements accepting its mandatory jurisdiction. Thus,
Article 31 would only be applicable during this completion of the conciliation
process outlined in Article 32, which was dismissed through interpretation.[39]
Article 37
of the statute stipulates that any matter involving the PCIJ or any other international
judicial body developed by the League of Nations will fall under the
jurisdiction of the International Court of Justice if the disputing parties are
parties to the statute. This provision acts as a link between the PCIJs and the
ICJs, ensuring continuity of jurisdiction between the two institutions.[40]
Article
36(2) of this Statute can be referred to as this court's optional jurisdiction clause.
The clause's main aim was to increase the extent of this court's jurisdiction
by progressively strengthening its acceptance among member nations. This court
analyzed the context of these declarations in its Cameroon versus Nigeria
(Preliminary Objections) judgment and noted that,
“Any state party to the Statute, in adhering to the jurisdiction of the
Court in accordance with article 36, clause 2, accepts jurisdiction in its
relations with states previously having adhered to that clause. At the same
time, it makes a standing offer to the other states parties to the Statute
which have not yet deposited a declaration of acceptance. The day one of those
states accepts that offer by depositing in its turn its declaration of
acceptance, the consensual bond is established and no further condition needs
to be met.”[41]
The court,
as per Article 36(2), is contended to exercise its jurisdiction only on the
reciprocity of operational functioning, i.e., to the level that both
pronouncements of the 2 parties in the disputes cover the same matter or concern.
The member
nations have made different reservations under the optional clause, limiting
the court's jurisdiction, which may differ from state to state, in order to prohibit
this court from becoming involved in the contention, which is considered to be
of vital importance and importance to the member state. The reservations relate
to the requirement of time i.e. ratione temporis or related to issues
involving personal conflict among the different member states of the
international community i.e. ratione personae or restricting the dispute
to reach the court where other methods for the conflict resolution was agreed
upon i.e. ratione materiae.
This
article allows member states to withdraw or alter existing declarations, which
may take precedence over the initial declaration. The declarations made under
the aforementioned article are unilaterally acted upon and the court will
interpret the interests of the parties to ascertain the extent to which
collective consent has been granted the judicial jurisdiction and during an
appropriate or reasonable manner, after taking into account the purpose of the
nation states that was associated at the moment when it accepted the compulsory
jurisdiction.[42]
Concluding Remarks:
-
Even though
ICJs serves as the United Nations' chief judicial branch, its jurisdiction is
severely limited by the authorization clause in Article 36(1) and any reservations
that may be raised exercising Article 36(2) of the statute.
The ICJs are
impeded when either party declines to recognize its jurisdiction, and the court
is thus unable to act against the state or decide the dispute. The ICJs have
been given such a significant task, but its legitimacy will be determined by
the intentions and desires of the member nations, relegating the International
Court to the role of a toothless tiger.
The
namesake jurisdiction of the ICJ, allows a state to essentially relinquish its
oversight and accountability. In such cases, the state cannot be forced to seem
or make submissions before the court, disregarding the enforcement of any
judgment.
The ICJ's
scope and ambit to deal with disputes is extremely limited because it can only
deal with legal issues emerging between member nations, and the precise meaning
of these legal conflicts varies from case to case. If it appears to the court
that the issue is unrelated to the legal dispute, the court may refuse to
entertain the case, leaving the state with no choice except to bear the losses
caused by the other state. Thus, the ambiguity of the word "legal
disputes" makes the admissibility of cases before the ICJ uncertain of
chance.
The ICJ is
only empowered to divulge the law and not to make laws, the ICJ will be bound
by the principles of stare decisis which compels it to follow the
already established precedent. The ICJ cannot, in any case, deviate from its
previous precedent, even if the situation has changed dramatically over time
and no legislative progress in the subject matter of the dispute has occurred
since the precedent.
The ICJ's
competence to deal with the existing laws is frequently surpassed by the
functional jurisdictions of the other organs, which are primarily political.
The concurrent jurisdiction of the ICJ with other United Nations organs
frequently causes substantial limitations in the ICJ's ability to exercise
jurisdiction and deliver its functions.
The
significant political authority wielded by the UN General Assembly or Security
Council over the ICJs often raises concerns about the institution's
reliability, as it places this court's independence or impartiality in the
hands of an influential nation.
The
appointment of justices to the ICJ is also a subject of intense debate, as is
the extent to which the court can operate independently of political pressure.
Therefore,
there is a crucial need to expand this court's jurisdiction and amend its
consent clauses, specifically Article 36(1) for this statute, to enhance the public’s
trust in the court and empower it to assert its authority effectively. This
would help address concerns about the court's perceived lack of teeth in
enforcing its judgments.
[1] Author is a Doctoral (Ph.D.)
Research Scholar of Law at Sardar Patel University of Police, Security and
Criminal Justice, Jodhpur.
[8]
Rosenne, ‘The Composition of the Court’ in Gross, Future of the
International Court of Justice. Vol. 1.
pp. 377.
[39] Case Concerning Border and
Trans-Border Armed Actions (Honduras v. Nicaragua). 8 ICJ Reports. 1988.
pp. 78–90.
[41] ICJ Reports. 1998. pp. 275,
291.