UNIVERSITY OF PETROLEUM & ENERGY STUDIES

SCHOOL OF LAW

B. COM., LL.B. (HONS.) TAXATION LAWS

ACADEMIC YEAR: 2016- 21 SESSION: JAN -MAY, 2019

SEMESTER - VI
PROJECT
F OR
HUMAN RIGHTS AND INTERNATIONAL LAW
(LLBL 432)

Under the Supervision of: VISHAL SHARMA

TOPIC- INTERNATIONAL COURT OF JUSTICE

NAME: NITISH KUMAR NAVEEN

PANKAJ CHHUTTANI
SAP ID: 500054889
500055676
ROLL NO: 063
064
INTRODUCTION

“Individual and national rights to wealth rest on the basis of civil and international law, or at
least of custom that has the force of law.”

The International Court of Justice (ICJ) is the principal judicial organ of the United
Nations (UN). After being established in June 1945 by the Charter of the United Nations, it
began to work in April 1946. The Court was created in 1945 and began work in 1946. Its
antecedents, however, go back to the time of the League of Nations as it has inherited the
premises and much of the structure and rules of the pre-war Permanent Court of
International Justice. But unlike the Permanent Court, which had a separate existence
from the League of Nations, the International Court of Justice is an integral part of the
United Nations. The United Nations Charter established the Court as “the principal judicial
organ of the United Nations”1. Its Statute is appended to the Charter and all members of the
United Nations are ipso facto parties to the Statute.2

The International Court of Justice is composed of 15 judges elected for a period of nine years;
no more than one national of any State may be a member of the Court. The judges represent
the main legal systems of the world. The Court elects, for a term of three years, the President
and Vice-President of the Court. The Court is assisted by a Registry, headed by a Registrar.
Elections are held every three years for five vacancies of the Court each time. Eligible as
judges are persons of high moral character and possessing the qualifications required in their
respective countries for appointment to the highest judicial offices, or juris consults of
recognized competence in international law3.The election is held simultaneously both in the
General Assembly and in the Security Council, each voting independently of the other. In
order to get elected, a candidate must obtain an absolute majority in both forums.

All the judges of the Court, including ad-hoc judges, constitute the Bench of the Court in a
case. No member can be dismissed unless, in the opinion of other members, he/she has
ceased to fulfil the required conditions (Article 18 of the Statute).
1 U.N.Charter,art. 92

2 Id.at art. 93.

3 No two members of UN whom may be nationals of the same state Three judges from Asia,
three judges from Africa, two judges from Latin America and one judge each from Western
Europe and other States and from the Eastern European States.
In this sense, a member of the Court may declare that he/she should not take part in the
decision in a particular case. It is also open to the President of the Court to suggest that for
some special reasons one of the members of the Court should not sit in a particular case and
should give his/her notice accordingly. In case of disagreement between the judge concerned
and the President, the matter shall be settled by a decision of the Court. The official
languages of the court are French and English.

HISTORY&BACKGROUND

Before ICJ there is bodies designed to adjudicate international dispute are known to have
existed many centuries ago, yet the practice would only crystallize in the eighteenth and
nineteenth centuries. They were, however, made as ad hoc systems to arbitrate singular
disagreements between specific countries.

The primary endeavor to make an increasingly permanent institution was made amid the
principal Hague Peace Conference in 1899, and its establishing arrangement was later
reexamined amid the second Hague Peace Conference (1907), which made the Permanent
Court of Arbitration. This was not a legal body in the feeling of a permanent institution made
out of permanent judges with a consistent capacity. It was more a machinery to frame arbitral
courts. The phase of a genuine legal court was just accomplished after the development of the
League of Nations in 1919 with the foundation of the Permanent Court of International
Justice (PCIJ) – formally taking sit in 1922.

Article 14 of the Covenant of the League of Nations gave the Council of the League
responsibility for formulating plans for the establishment of a Permanent Court of
International Justice (PCIJ), which would be competent not only to hear and determine any
dispute of an international character submitted to it by the parties to the dispute, but also to
give an advisory opinion upon any dispute or question referred to it by the Council or
Assembly of the League of Nations. All that remained was for the League Council to take the
necessary action to give effect to Article 14. At its second session early in 1920, the Council
appointed an Advisory Committee of Jurists to submit a report on the establishment of the
PCIJ. The committee sat in The Hague, under the chairmanship of Baron Descamps
(Belgium). In August 1920, a report containing a draft scheme was submitted to the Council,
which, after examining it and making certain amendments, presented it to the First Assembly
of the League of Nations, which opened in Geneva in November of that year. The Assembly
instructed its Third Committee to examine the question of the Court’s constitution. In
December 1920, after an exhaustive study by a subcommittee, the Committee submitted a
revised draft to the Assembly, which unanimously adopted it.

In 1942 the United States Secretary of State and the Foreign Secretary of the United
Kingdom declared themselves in favour of the establishment or re-establishment of an
international court after the war, and the Inter-American Juridical Committee recommended
that the PCIJ’s jurisdiction should be extended. Early in 1943, the United Kingdom
Government took the initiative of inviting a number of experts to London to constitute an
informal Inter-Allied Committee to examine the matter. That Committee, under the
chairmanship of Sir William Malkin (United Kingdom), held 19 meetings, which were
attended by jurists from 11 countries. In its report, which was published on 10 February 1944,
it recommended that the Statute of any new international court should be based on that of the
Permanent Court of International Justice;

 That the new court should retain an advisory jurisdiction;

 That acceptance of the jurisdiction of the new court should not be compulsory;

 That the court should have no jurisdiction to deal with essentially political matters.

Meanwhile, on 30 October 1943, following a conference, China, the USSR, the United
Kingdom and the United States issued a joint declaration recognizing the necessity “of
establishing at the earliest practicable date a general international organization, based on the
principle of the sovereign equality of all peace-loving States, and open to membership by all
such States, large and small, for the maintenance of international peace and security”.

It was only in 1946 that the new ICJ was established4 with the adoption of its Statute at the
San Francisco Conference on 26 June 1945. The ICJ Statute relied upon the Statute of its
predecessor, the PCIJ; even so, a process of redrafting was undertaken − with the necessary
adjustments in the light of the historical experience5 − first by the United Nations Committee
of Jurists, and then by the Fourth Committee of the United Nations Conference on
International Organization (UNCIO) in San Francisco in 1945.

JURISDICTION AND APPLICABLE LAW

4 For creation of ICJ, ICJ could take over the archives of its predecessor.
5 Alter the references from the League of Nations to the United Nations.
The International Court of Justice possesses two types of jurisdiction:

(i) Contentious jurisdiction: It involves States that submit the dispute by consent to the Court
for a binding decision.

(ii) Advisory jurisdiction: It concerns questions referred to the Court by the General
Assembly, the Security Council or other organs and specialized agencies of the United
Nations. Those questions can only refer to legal questions arising within the scope of their
activities. Advisory opinions given by the International Court of Justice are not binding6.

Incidental jurisdiction

Incidental jurisdiction relates to a series of miscellaneous and interlocutory matters; for

example the power of the Court to decide a dispute as to its own jurisdiction in a given case;
its general authority to control the proceedings; its ability to deal with interim measures of
protection; and the discontinuance of a case.

Mainline jurisdiction

Mainline jurisdiction, concerns the power of the Court to render a binding decision on the
substance and merits of a case placed before it.

BASIS FOR JURISDRICTION

The ICJ has been called to pronounce upon the most diverse areas of international law, in
cases originating from all the regions of the world. They have been submitted to the ICJ
either through Applications Instituting Proceedings– on the basis of the optional clause, or
else of compromissory clauses – or through Special Agreements/compromise.It is for the ICJ
itself to decide on questions regarding its jurisdiction: according to Article 36, paragraph 6, in
the event of a dispute as to whether the ICJ has jurisdiction in a given case, the matter shall
be settled by a decision of the Court.

The basis for jurisdiction is the consent of the States parties to a dispute. Consent can be
expressed in one of the following way7.

Special Agreement
6 (www.icj-cij.org) Also see, D. Pratap (1972)
7 (Rosenne S, 1997 p. 812)
The conclusion of a special agreement (compromis) to submit the dispute after it has arisen.
For example, a compromis was concluded between Hungary and Slovakia on 7 April 1993,
by which they submitted to the Court the dispute concerning the Gabcikovo Nagymaros
Project.

Jurisdictional Clause

Another way of conferring jurisdiction on the Court is through the inclusion of a

jurisdictional clause in a treaty. Generally, through this compromissory clause the States
parties agree, in advance, to submit to the Court any dispute concerning the implementation
and interpretation of the treaty.

APPLICABLE LAW

According to article 38(1) of statue of ICJ matters before the International Court of Justice
are decided in accordance with international law. According to the Statute, the Court is
required to apply:

a) International conventions, whether general or particular, establishing rules expressly

recognized by the contesting States;

b) International custom, as evidence of a general practice accepted as Law;

c) The general principles of law recognized by civilized nations;

d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determination of
rules of law.

Further, while the primary function of the Court is to settle the dispute in accordance with
international law, Article 38(2) gives power to the Court to decide a dispute ex aqueo et bono,
that is on the basis of equity, if the parties agree.

PROCEDURES

The Statute of the Court, establishes procedures for the conduct of a case before the Court.
The current Rules were promulgated in 1978. The Court, while being faithful to the
provisions of the Statute, treats matters concerning procedure with the necessary flexibility.

Initiating a Case
States parties to a dispute may commence a case after notifying it to the Registrar of the
Court. Upon receipt of either the notification of the special agreement or a written
application, the Registrar of the Court will communicate the application to all concerned. The
Members of the United Nations will be informed through the Secretary-General. The
Registrar communicates the application to any other States entitled to appear before the Court
(Article 40 of the Statute).

Representation of the Parties

Agents appointed by the parties represent them before the Court. They may have the
assistance of counsels or advocates. The agents, counsel, and advocates of the parties before
the Court enjoy privileges and immunities necessary for the independent exercise of their
duties (Article 42 of the Statute).

Interim Measures of Protection

The Court has first ordered interim measures of protection and later found itself without
jurisdiction8. In other cases, it has rejected the request for interim measures of protection on
the ground that the nexus between the rights to be protected and the measures sought was not
established. In other cases, it has rejected the request for interim measures of protection on
the ground that the nexus between the rights to be protected and the measures sought was not
established.9

In most cases, interim measures of protection are ordered only upon the request of one of the
parties. Furthermore, the Court may indicate measures other than those requested by a party,
or it may reject the application in toto. The Court indicates such measures by way of an order.
Even if such an order does not have the character of a recommendation, it has a binding
effect10.

It must however be noted that, as interim measures of protection are not a judgement of the
Court within the meaning of Article 94 of the United Nations Charter, the Security Council
cannot be called upon to enforce them. However, a party that has failed to comply with an
order is under obligation to compensate the other party.

Preliminary Objections

8 United Kingdom v Iran [1952] ICJ 2

9 Legal Status of the South-Eastern Territory of Greenland, PCIJ Series A/B No. 58
10 LaGrand case ICJ Reports 2000.
The bases include an objection to the capacity of a State to present a claim before the Court;
an objection to the jurisdiction of the Court to pronounce upon the merits of a case because of
an applicable reservation; an objection on the ground that the matter has already been
decided; or that the matter is pending in another forum between the same parties.

Objections have also been raised on the ground that diplomatic means of settlement have not
been exhausted, or that the issues involved are essentially political in nature, or that the
matter is under consideration before the Security Council of the United Nations. Objections
that local remedies have not been exhausted have been raised in cases brought before the
Court by States pursuant to an infringement of the rights of their nationals.

The Court has not accepted objections to its jurisdiction on the ground that the issues
involved are essentially political11. It has also rejected the argument that it should not
entertain jurisdiction in a matter, which is also being considered by the Security Council of
the United Nations12.

Right of Intervention of a Third Party

According to article 62 of the Statute State which is not a party to a dispute can intervene in
the case if it has an interest of a legal nature that is likely to be affected by a decision in the
case. However, it is for the Court to decide upon its request. The phrase, “matters of legal
nature”, means that the rights/obligations of the intervening State under public international
law can be affected by the final decision of the Court. Intervention by a third State does not
mean that, once admitted, the intervening State becomes a party to the dispute. The
intervening State is not entitled to nominate a judge ad hoc. However, with the consent of all
the parties, an intervener may become a full party to the proceedings. The decision of the
Court in relevant part(s) is also binding upon the State that is allowed to intervene.

Written and Oral Proceedings

Proceedings before the Court take place in two phases: the written and the oral proceedings.

Written Proceedings

The written memorials and counter-memorials, and, if necessary, replies, are presented to the
Court through the Registrar in the order prescribed and within the time fixed by the Court for

11 Nicaragua, ICJ Reports 1984

12 Lockerbie (United States and the United Kingdom v. Libya), ICJ Reports 1998
this purpose. The President of the Court, in consultation with the Registrar convenes a
meeting of the parties before deciding upon the deadlines and the order in which the written
memorials and counter-memorials should be submitted (Article 49 of the Rules of the Court).

Oral Proceedings

The Court determines the number of sittings and the time allocated to each party. For this
purpose, the Court passes the necessary orders and makes all necessary arrangements for the
taking of evidence (Article 48 of the Statute). The oral proceedings before the Court involve
the presentation of arguments by the agents, counsel and advocates and also the hearing of
witnesses and experts.

Evidence and Visit to Site

Where service of a notice upon a person other than the agents, counsel and advocates is
necessary, the Court sends such a notice to the government of the State in whose territory the
notice has to be served.

Non-Appearance of a Party

In the case of non-appearance of a party, the other party can request the Court to decide in
favour of its claim. However, the Court must be fully satisfied, not only that it has jurisdiction
in accordance with Articles 36 and 37 of the Statute of the Court, but also that the claim is
well founded in fact and law (Article 53 of the Statute of the Court). The judgement of a
Court may not go beyond the scope of the claims made by the parties or the submissions
made in the unilateral application to the Court.

Judgement

The Court may also declare lack of jurisdiction, or it may decline to give a decision because
the dispute has already been resolved as a result of the conduct of the defendant. It is not
necessary, in any case, for the Court to pronounce upon the merits of the dispute, but it could
impose an obligation upon the parties to seek a settlement corresponding to their special
circumstances by means of negotiations in good faith. The judgement states the reason for the
decision and contains the names of the judges who took part in its decision. Judges who do
not fully share the reasoning of the Court, and those who disagree with its contents, are
entitled to deliver their separate or dissenting opinions.
Revision

The application for revision can be made only within six months of the discovery of the fact.
However, no application for revision may be made after the lapse of 10 years from the date of
the judgement. The Court may require previous compliance with the terms of the judgement
before it admits proceedings in revision. In addition, the proceedings for revision can be
commenced by a judgement of the Court expressly recording the evidence of the new fact,
and recognizing that it has such a character as to lay the case open to revision, and declaring
the application for revision as admissible. It is understood that the proceedings of a case
involving an application for revision will be subject to the same procedure as the original
case.

Enforcement of a Judgement

A judgement is binding upon the parties in accordance with Article 2 and Article 94(1) of the
United Nations Charter. In case of failure by one party to comply with the obligations arising
from the decision of the Court, the other parties can have recourse to the Security Council for
the enforcement of the decision.

CONCLUSION

At the time of its establishment, the International Court of Justice was the global
community’s only standing international court. Today, it has been joined by a multitude of
courts and tribunals dealing with matters of trade law, human rights law, international
criminal law and the law of the sea, as well as a large number of ad hoc tribunals13 created for
the purpose of hearing a single case. These are, however, a number of features of the ICJ
which set it apart. It has a universality which other courts and tribunals do not possess. Any
of the 192 member States of the United Nations can be parties to cases before it and all can
participate in the vote in the General Assembly to elect the judges of the Court.

13 The United Nations Security Council created ad-hoc international criminal tribunals in
the former Yugoslavia (ICTY) and Rwanda (ICTR) to address violations of international law
during the Yugoslavia conflict and the Rwanda genocide of the 1990s
Today, that universality is more pronounced than ever.88 States have been parties in cases
before the Court (twenty-five are parties to pending cases). Moreover, they come from all
regions of the world: of the parties to pending cases, six are from Africa, six from Latin
America and the Caribbean, three from Asia, five from Eastern Europe, and five from the

West European and Others Group.14 Forty-three States took part in the recent proceedings on
the request for an advisory opinion regarding the declaration of independence in respect of
Kosovo.All 192 member States of the United Nations took part in the last vote to elect five
judges in 2008.The Court is also universal in another sense. Unlike specialized courts and
tribunals whose jurisdiction is confined to particular areas of international law (as is the case,
for example, with the International Tribunal for the Law of the Sea), the jurisdiction of the
International Court of Justice covers the whole field of international law. The cases currently
before the Court include land and maritime boundary disputes, environmental issues,whaling,
the prosecution or extradition of a former head of State, sovereign immunity and the use of
force. Moreover, a glance at the current cases and the recent decisions of the Court will show
that many of the cases have involved issues of great importance to the parties and often to the
global community as a whole.

14 These are the regional groups which exist within the United Nations