International court of justice – United Nations Organ
One of the purposes of the United Nations is “to take effective collective measures for the adjustment or settlement of international disputes or situations which may lead to a breach of the peace, by peaceful means and in accordance with the principles of justice and international law.” To fulfill this purpose it was necessary to establish a judicial organ of the organization.
Therefore, at the San Francisco Conference, it was decided to establish a new court on the basis of the statute of the Permanent International Court of Justice. The new court was named the International Court of Justice. Article 92 of the Charter makes provisions with respect to the International Court of Justice.
According to Article 92, “The International Court of Justice is the principal judicial organ of the United Nations. The Court at that time acts in accordance with the statute, which is an integral part of the United Nations Charter.
The International Court of Justice is considered the successor to the Permanent International Court of Justice. It established in Heg ( Holland).
There are 70 articles in the Statute of the International Court of Justice. The International Court of Justice, established by the Charter of the United Nations as the principal judicial organ of the United Nations, shall be constituted and function in accordance with the provisions of this Constitution. There are 15 judges in the International Court of Justice, but no two of these judges can be from the same state.
The judges of the Court are elected independently but at the same time by the General Assembly and by the Security Council.
Candidates for the post of judge who get an absolute majority of the votes in the General Assembly and the Security Council are considered elected.
Judges are elected by these two organs of the United Nations from a list of persons nominated by national groups to the Permanent Court of Arbitration.
A list of all persons nominated to the Court is prepared by the Secretary-General. Which is presented by him to the General Assembly and the Security Council. States Parties to the Statute of the Court, which are not members of the United Nations, may also participate in the election of judges. The condition for participation in the elections of such states is imposed by the General Assembly on the recommendation of the Security Council.
Court judges are expected to be independent. He should be a person of high moral character. They are expected to possess such qualifications as are necessary for appointment to the highest judicial positions in their respective countries. They may also be competent jurists recognized in international law.
In addition to the above qualifications in judges, at the time of election, it will also be kept in mind that the courts in their overall form should represent the major civilizations and major legal systems of the world.
Judges are elected for nine years. But out of the judges elected in the first election, the term of five judges ended on completion of 3 years and the term of five other judges ended on completion of 6 years. The judges whose term had expired on the completion of the initial period of 3 or 6 years mentioned above were elected by the Secretary-General by drawing a lottery.
Exempt judges can be re-elected. A member of the Court cannot be dismissed unless the other members are of the unanimous opinion that he no longer fulfills the requisite conditions.
The conditions which the members are expected to fulfill are mentioned in Articles 16 and 17 of the Statute. These are the conditions –
(a) No member can do any political or administrative work or engage in any other occupation of a professional nature.
No member of the Court can act as an agent, counselor or advocate in any case.
No member may take part in the adjudication of any case in which he has acted as an agent, counselor or advocate on behalf of one of the parties.
The number of judges is fixed for the quorum of the court.
International Common Court of Justice
The Court may, from time to time, constitute a Bench consisting of three or more Judges to deal with special cases relating to labor and matters relating to transit and communication, as the Court may decide.
In addition to the said Bench, the Court may at any time make a Bench to dispose of the particular case. The number of judges to make such bench is determined by the court, with the approval of the parties.
In the case of the Gulf of Maine between the United Nations and Canada, the Court was asked by the parties to set up a Special Bench of the Court to determine the extent of their continental shelf land and fisheries in the Gulf. This was the first time that the Court was requested to constitute a Special Bench to settle the dispute. The court allowed the request to constitute a special bench.
Similarly, a five-judge bench was constituted by the court at the request of the parties to settle the case of the border dispute between Burkina Faso and Mali.
Formation of Special Bench Cases between El Salvador and Honduras and Electronica Sikula S.p.A. was also done in the related cases.
Ad-hoc Judges – In addition to judges, the Statute of the International Court of Justice makes provisions regarding the appointment of ad-hoc judges. Article 31(2) of the statute provides that in cases where neither party has a national judge in the court. In those cases the court may appoint an ad-hoc judge.
Ad hoc judges can also be appointed in advisory proceedings. Article 68 of the Statute provides that the Court, while performing its advisory functions, may apply all the provisions of this Statute which are applicable in disputed matters.
Ad-hoc judges are not permanent judges of the court, and they only hear ‘the specific case’ for which they are appointed. They participate in decisions on the basis of absolute equality like other judges of the court.
The Court may also invite an assistant to sit with it to consider the particular case. Ad-hoc judges or assistants are not entitled to vote, assistants are elected by the court itself and not by the parties.
Law to be applied by the International Court of Justice – According to the Statute of the International Court of Justice, the International Court shall decide the disputes which are presented before it in accordance with Article 38(1) of the International Law and shall apply the following sources of International Law –
- 1.International Convention
- International Customs (Practices)
- General rules of law accepted by all nations
- Judicial Judgments and Arbitrations or Arbitration Judgments and Summary Works of highly qualified jurists as secondary means for knowing the rules of international law. This provision is subject to Article 59 of the Statute.
Ex Eco it Bono – Article 38(1) provides that in spite of the above provision i.e. Article 38(1), if the parties agree, then the court can give a decision on other grounds by ignoring the above sources of a suit.
Parties to the suit before the court
The following parties may be involved in a suit before the Court-
State – Article 34 of the Statute of the Court provides that “Only the State may be parties to matters before the Court.” The following states can be parties to the court-
Article 93(1) of the United Nations Charter provides that all members of the United Nations shall by virtue of their membership become parties to proceedings in court.
Regarding non-members of the United Nations, Article 93(1) of the Charter provides that non-member states of the United Nations may be parties to the statute of the International Court of Justice. They can be parties only on the conditions to be determined in each case by the General Assembly on the recommendation of the Security Council.
According to Article 35(2) of the Statute of the Court, courts can become parties to the resolution of all those states on the conditions specified by the Security Council.
States non-parties to the statute are required to file a declaration with the Registrar of Courts by which they acknowledge the jurisdiction of the Court in accordance with the terms and conditions of the Charter of the United Nations and the Statutes and Rules of the Court and the Court undertake to comply in good faith with the decision or decisions.
According to Article 34(1) of the Statute of the Court, international organizations cannot be parties to cases before the court. International organizations also include the United Nations, whose court is the main judicial organ.
At the present time, the Court has explicitly recognized the international personality of the United Nations in the adjudicatory vote in compensation matters, so it has the right to make claims before the Court, but international organizations cannot be parties to the Court in controversial cases. But they can seek an advisory vote from the Court on any further question.
Although the United Nations cannot be a party to a court, its organs may seek an advisory vote on any question of law. The General Assembly and the Security Council may, in accordance with Article 16(1) of the Charter, request the Court to cast an advisory vote on any legal question, while other organs of the United Nations may seek an advisory vote on legal questions arising in the course of their activities. , if they are authorized by the General Assembly to do so. Special agencies of the United Nations may also seek the advisory opinion of the Court, if so authorized by the General Assembly in accordance with Article 16(2) of the Charter.
Individuals cannot be parties before the court. But, when a person’s case is filed by his state against another state in a court, the court can hear the case.
Jurisdiction of court
The jurisdiction of the Court can be broadly divided into two categories, the Compensatory Jurisdiction and advisory jurisdictions.
In short about international Court
The main location of the International Court of Justice is The Hague (Netherlands).
The opening date of the International Court of Justice is 18 April 1946.
Justice Gerrero was the first president of the International Court of Justice.
The total number of members of the International Court of Justice is 15, which includes the President, Vice President of the Court.
The term of the President and Vice-Chairman is 3 years.
Judges are elected for 9 years and can be re-elected.
Every member of the Court gets an ‘annual salary’.
The Speaker receives a ‘Special Annual Allowance’.
The Vice-Chairman gets a special allowance for each day on which he acts as the Chairman.
Judges elected under Article 31, who are not members of the Court, shall be compensated for each day on which they perform their functions.
Article 31 provides for the right of the parties to the right of the judges of nationality to attend the hearing of the case.
These salaries, allowances and compensation are fixed by the General Assembly and cannot be reduced during the term of office.
The registrar’s salary is fixed by the General Assembly on the proposal of the Court.
After the court has heard a case, its minutes are prepared and signed by the Registrar and the Speaker.
All questions decided by the court are decided by a majority of the judges present.
In the event of an equality of votes, the Speaker or the Judge acting in his place shall have a casting vote.
Amendment in the status of the court is done under Article 69.
The power of the Court to propose amendments lies in Article 70.
Anglo Norwegian Fisheries Case –
In this case, the court has clarified that the court is free to develop international law without being bound by the previous practice and aforesaid. This is a matter related to the development of the practice.
Right to pass through Indian territory or Portugal v Malta-
In this case, this rule of custom was propounded in the court that if two states continue to practice a practice for a long time, then as a result of this practice a custom is established which is binding like the rules of law.