International Court Of Justice: Is it biased?

 ICJ was established after the failure of the permanent court of international justice. Permanent Court of International Justice (PCIJ) began its operations in 1922. However, it lost its relevance in the coming year because of rising fascism and worldwide depression. Consequently, it lost its relevance in the late 1930s and became irrelevant like League of Nations, and was not at all in use during World War II. Later, the founder of the United Nations established something like PCIJ but with a new name with a hope that the new ICJ will be successful because of the support of the UN and participation and leadership of various nations. The ICJ was established on the basis of the statue of the International Court of Justice, which is independent but usually referenced by the UN charter. All the members of the UN are parties to the ICJ and are subject to the jurisdiction of ICJ. The statutes, rules, and regulations of ICJ are vague and it is usually supplemented by other treaties, conventions, ICJ court orders, and customs.

ICJ jurisdiction covers the following types of cases

 (a) Where parties to a dispute agree for the settlement of their dispute by submitting their case to the court.

(b)When states declare their compulsory jurisdiction to the court.

Composition of ICJ-

The ICJ is comprised of 15 judges. The judges are appointed for a nine-year renewable term. Every three years, the court’s composition change and no two judges have the same nationality.  The qualifications of judges include the standard qualification of judges, academicians, diplomats, and lawyers. States nominates the judges and then voted by the Security Council and the general assembly. If any state appears before the court as a party and a national from that state is not currently a judge, the state may appoint an ad hoc judge who has the same power as the permanent judge but only for that particular case. Till now there have been 90 judges so far. The history of ICJ has been a struggle between the internationalists’ aspirations of the court’s supporters and the efforts of states to limit their international obligations. States can avoid giving consent to jurisdiction even though if they have a special agreement for jurisdiction. ICJ has elaborate arbitration device in special agreement cases.

States can also have treaty-based jurisdiction. In this kind of jurisdiction, state consent is also needed when the treaty is being ratified. So, on paper, the state doesn’t have to fear about treaty-based jurisdiction. But, in reality, the state should agree to ICJ resolution if they want to get benefits from the treaty. Moreover, ICJ has reciprocal, so a state agrees to ICJ resolution. It helps them to bring other states to courts in case of disputes.

Jurisdiction of ICJ-

Next, the States can have compulsory jurisdiction. In this situation also, the state can avoid this compulsory jurisdiction by not filing a declaration. But most of the states have filed this declaration because the states believe that they can bring other states to ICJ which exceeds the cost of being pulled by other states before the ICJ. Many states have filed for compulsory jurisdiction only for a narrow range of cases. For Example – The US excluded those cases which involve national security. Because, when various clauses satisfied that the US has compulsory jurisdiction in Nicaragua case, the US pulled out that compulsory jurisdiction. In the early 1970s, France also withdraws from the compulsory jurisdiction when ICJ took a case without France’s consent.  Till now 177 cases have been filed in ICJ for a general list of considerations. In 76 cases ICJ voted on Substantive questions. The most common types of disputes were border disputes, use of force, property and aerial dispute. The ICJ is a principal judicial nation of the United Nations its role within the UN has largely been misunderstood especially because of the way the court has used its advisory jurisdiction. Their role in settling international disputes is more than what they used to have 40 years ago. The measures for the protection of the independence of ICJ is very important because then it’ll be effective enough to resolve the disputes in international arbitration. These protective measures include qualification of judges, methods of their selection and election, their commitment to given responsibilities and methods of imparting justice.  But there are many challenges to the Independence of International Judiciary. There are many instances where it was perceived that ICJ is not able to control state behavior such as in the Nicaragua Case.

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