Major Conviction delivered by ICJ, so far in the History

By Martha Inaingo

Published On: October 02, 2023 at 13:20

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations that was established by the United Nations Charter in 1945 to arbitrate international disputes.

The International Court of Justice is different from other courts such as the Court of Justice of the European Union (whose role is to interpret European Community legislation uniformly and rule on its validity), or the European Court of Human Rights. The jurisdiction of the ICJ is general and thereby differs from that of specialist international tribunals, such as the International Tribunal for the Law of the Sea (ITLOS).

The Court is not a supreme court to which national courts can turn; it does not act as a court of last resort for individuals. Nor is it an appeal court for any international tribunal. It can, however, rule on the validity of arbitral awards. Only member States of the United Nations and other States which have become parties to the Statute of the Court or which have accepted its jurisdiction under certain conditions may be parties to institute a case in the court.

The International Court of Justice was created to bring about peaceful means of adjustment or settlement of international disputes or situations which could lead to breach of the peace or outbreak of war. The ICJ after its establishment in 1945 have entertained about 190 cases which have been registered in the General list, of which the court has given its decisions on some while others are pending.^[1]

From inception the court has determined many disputes between states and delivered their rulings. This article discuss the kind of matters that the ICJ entertains, the major decisions that have been held since its inception and answer the question of enforceability.

What kind of Disputes does the ICJ handle?

The ICJ may entertain only two types of cases: legal disputes between States, filed to it by the parties (contentious cases) and requests for advisory opinions on legal questions referred to it by any of the United Nations organs and specialized agencies (advisory proceedings).^[2]

The sources of law that the Court must apply to any type of dispute in any of its proceedings are: international treaties and conventions in force; international custom; the general principles of law; judicial decisions; and the teachings of the most highly qualified publicists. Moreover, if the parties agree, the Court can decide a case ex aequo et bono, i.e., without confining itself to existing rules of international law.^[3]

Advisory Proceedings

Advisory proceedings before the ICJ are only open to the five organs of the United Nations and the sixteen (16) specialized agencies of the United Nations or affiliated organizations. For instance, the United Nations General Assembly and Security Council may request advisory opinions on any legal question, which would guide their decisions on the particular issue that raised such questions. Other United Nations organs and specialized agencies which have been authorized to seek advisory opinions can only do so with respect to legal questions arising within the scope of their activities.^[4]

Such opinions are essentially advisory; that is, unlike the Court’s judgments, the opinions are not binding. The requesting organ, agency or organization has the liberty to enforce, apply or effect the opinion as it seems fit or not to do so at all.

Conversely, there are certain instruments or regulations that provide, that an advisory opinion by the Court does have binding force e.g., the conventions on the privileges and immunities of the United Nations. Thus, the Court’s advisory opinions are associated with its authority and prestige sourced from its establishing statute therefore a decision by the organ or agency concerned has to endorse the opinion of the court as it were sanctioned by international law.

Overview of Major Advisory Opinions by the International Court of Justice

• Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter)^[5]

Twelve (12) States were unable to be members of the United Nations after their applications were rejected nu the security council as a result of the exercise a veto imposed by a permanent member of the council. A proposal was then made for the admission of all the candidates at the same time and the General Assembly referred the question to the Court.

In the interpretation of Article 4 of the Charter of the United Nations, the court held its Advisory Opinion of 28 May 1948, and declared that the conditions laid down for the admission of States were exhaustive and that if these conditions were fulfilled by a State which was a candidate, the Security Council ought to make the recommendation which would enable the General Assembly to decide upon the admission.

• Reparation for Injuries Suffered in the Service of the United Nations^[6]

The legal question that the General Assembly sought the Court to answer was whether the United Nations had the capacity to bring an international claim against the State responsible for the assassination of Count Folke Bernadotte (the United Nations Mediator in Palestine)in Jerusalem, September 1948, with a view to obtaining reparation for damage caused to the Organization and to the victim.

The Court in its Advisory Opinion of 11 April 1949, held that the Organization was intended to exercise functions and rights which could only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon the international plane. It followed that the Organization had the capacity to bring a claim and to give it the character of an international action for reparation for the damage that had been caused to it, not only in respect of damage caused to itself, but also in respect of damage suffered by the victim or persons entitled through him.

• Accordance with international law of the unilateral declaration of independence in respect of Kosovo^[7]

The General Assembly sought the Court to render an advisory opinion, regarding the legal question : Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?

The Court first sought to determine whether the declaration of independence was in accordance with general international law. It noted that State practice during the eighteenth, nineteenth and early twentieth centuries points clearly to the conclusion that international law contained no prohibition of declarations of independence.

In particular, the Court concluded that the scope of the principle of territorial integrity is confined to the sphere of relations between States. It also determined that no general prohibition of declarations of independence could be deduced from Security Council resolutions condemning other declarations of independence, because those declarations of independence had been made in the context of an unlawful use of force or a violation of a jus cogens norm. The Court thus concluded that the declaration of independence in respect of Kosovo had not violated general international law.

On 9 September 2010, the General Assembly adopted a resolution in which it acknowledged the content of the advisory opinion of the Court rendered in response to its request (resolution 64/298).

• Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide^[8]

In November 1950, the General Assembly asked the Court a series of questions as to the position of a State which attached reservations to its signature of the multilateral Convention on Genocide if other States, signatories of the same Convention, objected to these reservations.

The Court considered, in its Advisory Opinion of 28 May 1951, that, even if a convention contained no article on the subject of reservations, it did not follow that they were prohibited. The character of the convention, its purposes and its provisions must be taken into account. It was the compatibility of the reservation with the purpose of the convention which must furnish the criterion of the attitude of the State making the reservation, and of the State which objected thereto.

The Court was of the opinion that, as regards the first case, it would be inconceivable that a State which had not signed the convention should be able to exclude another State from it. In the second case, the situation was different: the objection was valid, but it would not produce an immediate legal effect; it would merely express and proclaim the attitude which a signatory State would assume when it had become a party to the convention.

Some other major advisory opinions delivered by the ICJ are: Legality of the Threat or Use of Nuclear Weapons,^[9] Legality of the Use by a State of Nuclear Weapons in Armed Conflict,^[10] Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations,^[11] Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,^[12] Western Sahara,^[13] Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO^[14] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965^[15] etc.

Contentious Cases

The ICJ deals with a wide scope of contentious matters such as issues arising from land and Maritime boundaries, jurisdiction and territorial sovereignty, human rights, diplomatic relations, economic rights, nationality and immigration disputes. The International Court of Justice has no jurisdiction to try individuals accused of war crimes or crimes against humanity. As it is not a criminal court, it does not have a prosecutor able to initiate proceedings.

Only member States of the United Nations and other States which have become parties to the Statute of the International Court of Justice or which have accepted its jurisdiction under certain conditions may be parties to contentious cases. The Court cannot be involved in any matter without invitation, neither is it permitted to investigate, inquire and rule on acts of sovereign states, it can only hear a dispute when requested to do so by one or more States.

The States involved in the dispute must also have access to the Court and must have accepted its jurisdiction, in other words they must consent to the fact that the ICJ would determine the dispute in question. This is a fundamental principle governing the settlement of international disputes, since States are sovereign and free to choose how to resolve their disputes.^[16]

A State may manifest its consent in three ways:

• By a special agreement: two or more States with a dispute on a specific issue may agree to submit it jointly to the Court and conclude an agreement for this purpose;
• By virtue of a jurisdictional clause in a treaty: over 300 treaties contain clauses (known as jurisdictional clauses) by which a State party undertakes to accept the jurisdiction of the Court in the event of a dispute that may arise with another State party about the interpretation or application of the treaty;
• By a unilateral declaration: the States parties to the Statute of the Court may opt to make a unilateral declaration recognizing the jurisdiction of the Court as binding with respect to any other State also accepting it as binding. This optional clause system, as it is called, has led to the creation of a group of States each of which has given the Court jurisdiction to settle any dispute that might arise between them in future. In principle, any State in this group is entitled to bring one or more other States in the group before the Court. Declarations may contain reservations limiting their duration or excluding certain categories of dispute. ^[17]

Brief Overview of Major Judgements of Contentious cases by the International Court of Justice

• Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania)^[18]

The dispute arose as a result of explosion of mines in a part of the Albanian waters which caused British warships to suffer damage and killed members of the crew while passing through the Corfu channel in 1946.

The United Kingdom instituted the matter to the Court of the dispute and accused Albania of having laid or allowed a third State to lay the mines after mine-clearing operations had been carried out by the Allied naval authorities. The case had previously been brought before the United Nations and, in consequence of a recommendation by the Security Council, had been referred to the Court.

The Court found that Albania was responsible under international law for the explosions that had taken place in Albanian waters and for the damage and loss of life which had ensued. It did not accept the view that Albania had itself laid the mines or the purported connivance of Albania with a mine-laying operation carried out by the Yugoslav Navy at the request of Albania.

On the other hand, it found that the minesweeping had violated Albanian sovereignty, because it had been carried out against the will of the Albanian Government. In particular, it did not accept the notion of “self-help” asserted by the United Kingdom to justify its intervention.

• Asylum (Colombia/Peru)^[19]

The granting of diplomatic asylum in the Colombian Embassy at Lima, to a Peruvian national, Victor Raúl Haya de la Torre, a political leader accused of having instigated a military rebellion, was the subject of a dispute between Peru and Colombia which the Parties agreed to submit to the Court. The Pan-American Havana Convention on Asylum (1928) laid down that, subject to certain conditions, asylum could be granted in a foreign embassy to a political refugee who was a national of the territorial State.

The issue for determination was whether Colombia, as the State granting the asylum, was entitled unilaterally to “qualify” the offence committed by the refugee in a manner binding on the territorial State — that is, to decide whether it was a political offence or a common crime.

The Court answered the question in the negative, but at the same time it specified that Peru had not proved that Mr. Haya de la Torre was a common criminal.

• Anglo-Iranian Oil Co. (United Kingdom v. Iran)^[20]

In 1933 an oil concession agreement was concluded between the Government of Iran and the Anglo-Iranian Oil Company. In 1951, laws were passed in Iran for the nationalization of the oil industry. These laws resulted in a dispute between Iran and the company. The United Kingdom took up the company’s case and instituted proceedings before the Court.

In the Court’s Judgment of 22 July 1952, it decided that it had no jurisdiction to deal with the dispute. Its jurisdiction depended on the declarations by Iran and the United Kingdom accepting the Court’s compulsory jurisdiction under Article 36, paragraph 2, of the Court’s Statute.

The Court held that the declaration by Iran, which was ratified in 1932, covered only disputes based on treaties concluded by Iran after that date, whereas the claim of the United Kingdom was directly or indirectly based on treaties concluded prior to 1932. The Court also rejected the view that the agreement of 1933 was both a concessionary contract between Iran and the company and an international treaty between Iran and the United Kingdom, since the United Kingdom was not a party to the contract.

• Nuclear Tests (Australia v. France)^[21]

Australia and New Zealand instituted proceedings separately against France concerning tests of nuclear weapons which France proposed to carry out in the atmosphere in the South Pacific region.

By two Orders of 22 June 1973, the Court, at the request of Australia and New Zealand, indicated provisional measures to the effect, inter alia, that pending judgment France should avoid nuclear tests causing radioactive fall-out on Australian or New Zealand territory.

• United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran)^[22]

This case was brought before the Court by the United States following the occupation of its Embassy in Tehran by Iranian militants on 4 November 1979, and the capture and holding as hostages of its diplomatic and consular staff.

On a request by the United States for the indication of provisional measures, the Court held that there was no more fundamental prerequisite for relations between States than the inviolability of diplomatic envoys and embassies, and it indicated provisional measures for ensuring the immediate restoration to the United States of the Embassy premises and the release of the hostages.

The Court, in its Judgment found that Iran had violated and was still violating obligations owed by it to the United States under conventions in force between the two countries and rules of general international law, that the violation of these obligations engaged its responsibility, and that the Iranian Government was bound to secure the immediate release of the hostages, to restore the Embassy premises, and to make reparation for the injury caused to the United States Government.

• Trial of Pakistani Prisoners of War (Pakistan v. India)^[23]

In May 1973, Pakistan instituted proceedings against India concerning 195 Pakistani prisoners of war whom, according to Pakistan, India proposed to hand over to Bangladesh, which was said to intend trying them for acts of genocide and crimes against humanity.

North Sea Continental Shelf (Federal Republic of Germany/Denmark), ^[24] South West Africa (Ethiopia v. South Africa),^[25] Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia),^[26] Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia),^[27] Maritime Delimitation in the Indian Ocean (Somalia v. Kenya),^[28] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates),^[29] etc.

Are decisions of the Court binding?

Judgments delivered by the Court (or by one of its Chambers) in disputes between States are binding upon the parties concerned. Article 94 of the United Nations Charter provides that each Member of the United Nations (by signing the Charter) undertakes to comply with the decision of the Court in any case to which it is a party.

Judgments are final and without appeal. If there is a dispute about the meaning or scope of a judgment, the only possibility is for one of the parties to make a request to the Court for an interpretation. In the event of the discovery of a fact hitherto unknown to the Court which might be a decisive factor, either party may apply for revision of the judgment.

A State which considers that the other side has failed to perform the obligations incumbent upon it under a judgment rendered by the Court may bring the matter before the Security Council, which is empowered to recommend or decide upon measures to be taken to give effect to the judgment.

From the wordings of Article 94(2) of the United Nations Charter, it cannot be said that only the UN Security Council is given the exclusive power to enforce the decision of ICJ.^[30] A party who feels that there is non-compliance with the judgment of the ICJ can also bring such compliant before the United Nations General Assembly under Articles 10, 11, 14, 22 and 35 of the Charter vis-à-vis the provision of Resolution 377 popularly referred to as Uniting for Peace Resolution.

Conclusion

The ICJ is the United Nations principal organ saddled with the responsibility to handle disputes between states in order to restore peace and avoid aggression or other non-peaceful methods and determine legal questions by providing advisory opinions to the other organs of the UN or any of its 16 agencies and passing judgements that can be enforced through measures recommended by the Security Council.

Refrences

1. ICJ Cases
2. International Court of Justice, ‘How the Court works?
3. Ibid ↑
4. Ibid ↑
5. International Court of Justice, Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter)
6. International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations
7. International Court of Justice, Accordance with international law of the unilateral declaration of independence in respect of Kosovo (2010)
8. International Court of Justice, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide

9. Legality of the Use by a State of Nuclear Weapons in Armed Conflict (1996)

10. Legality of the Use by a State of Nuclear Weapons in Armed Conflict (1996)

11. Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations,

12. Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,(1980)

13. ^[1]Western Sahara (1975)

14. Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO,  

15. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (2019)

16. International Court of Justice, ‘Frequently asked questions,  

17. International Court of Justice, ‘Contentious Jurisdiction,’

18. International Court of Justice, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania)

19. International Court of Justice, Asylum (Colombia/Peru)

20. International Court of Justice, Anglo-Iranian Oil Co. (United Kingdom v. Iran),

21. International Court of Justice, Nuclear Tests (Australia v. France) 1974

22. United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) 1981,

23. International Court of Justice, Trial of Pakistani Prisoners of War (Pakistan v. India),  

24. North Sea Continental Shelf (Federal Republic of Germany/Denmark

25. International Court of Justice, South West Africa (Ethiopia v. South Africa),  available

26. Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia) 2022,

27. Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) 2021

28. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) 2021,

29. A Critical Examination of the Enforcement of ICJ 

30. Critical Examination of the Enforcement of ICJ Decisions through the Organs ofUN