The ICJ is primary judicial branch of United Nation. It
was established in 26 June 1945 with aim to settle legal disputes submitted to it by
states and provide advisory opinions on legal questions submitted to it by duly
authorized international branches, agencies and the UN General Assembly.
The
ICJ is composed of 15 Judges on a term of 9 years of service. All the judges
are selected by UN Security Council and General Assembly. Every 3 years the
election is conducted for new judges and to ensure the continuity within the
court and 5 news judges are elected by UN Security Council and General
Assembly. Since the Permanent 5 members (P5) are part of the election so they always
chose their representative judge. However, only one judge can be elected from
one state.
Importance of ICJ:
Since the world system is anarchic and there isn't any international government, so the need of International Organization for resolution of disputes is very necessary. The same approach goes with the Neo-Liberalism. Without having such International courts, disputed states may get into wars and may use nuclear weapon which would definitely result in End of Life on the earth.
Types
of Jurisdiction:
According to the Article
93 of UN Charters all 193 members of the United Nations are
automatically the parties to Court's statute.
(1)
Contentious Jurisdiction:
In contentious
jurisdiction the ICJ resolves the disputes of states which are willing to and
give consent to ICJ for ruling their disputes. Since the ruling of ICJ is
binding so the consent of both the disputed party is utmost necessary for the
ruling of ICJ, says Article 36(1) of ICJ statute. Only states can seek for
settlement of disputes, Corporations, Individuals and NGOs etc are excluded
from this service. However, their respective governments may take their case to
the ICJ on their behalf for the settlement.
(i)
Conventional: According to the Article 36(1) of ICJ
Statute when two states undergo a dispute, they sign a treaty and submit their
consent for ruling to the ICJ then court proceed to settle their dispute. In
such case the ruling of the ICJ would be binding.
Example: Temple Case:
Cambodian Vs Thailand Case
There are normally
three kinds of treaty countries sign for their disputes:
(a) Normal Treaty:
This treaty is signed after the occurrence of dispute and for the settlement of
subjected dispute only.
(b) Specific Treaty:
This treaty is signed before occurrence of a specific dispute, where both the
parties agrees to go to the ICJ for the settlement of specific dispute if occur
in future.
(c) General Treaty:
This is similar to the specific treaty but in this treaty there is no specific
dispute mentioned in the treaty, so in case of any dispute, both the parties
agree to forward the case to ICJ for ruling.
(ii)
Forum Prorogatum: Article 36 (1) of ICJ statute also
provide that if one of the disputed party contacts for the settlement of
dispute, the ICJ is in power to contact the second party for their consent in
their matter. However, if the second party is not interested in having the
matter examined by ICJ, it may refuse to comply with the judgment.
Example:
Corfu Channel Case: UK Vs Albania (1949)
(iii)
Compulsory Jurisdiction: According to Article 36(2) a state may
provide the ICJ with declaration accepting the court's jurisdiction for either
general or specific matter in future. However, the term Compulsory is sometime
mistaken since the declaration is submitted by parties voluntarily.
(2)
Advisory Jurisdiction:
Another function of the
ICJ is to provide advices on legal matters only to specified UN bodies and
agencies. Not every organization and institution can seek this service of ICJ.
However, ICJ before providing so advisory service, analyses the scope of
working of the requested parties/entity. World Health Organization (WHO) asked
advisory service of ICJ to answer if the Nuclear Weapons are legal or not.
Since this question was out of the scope of WHO so ICJ declined the request and
refused to answer.
(3)Transferred
Jurisdiction: Article 36(5)
of CIJ statute states that the declaration provided for the settlement of
disputes and for jurisdiction to PCIJ would come into the jurisdiction of ICJ.
Similarly Article 37 of the ICJ statute transfers the declarations, given
for the jurisdiction to Permanent Court of International Justice, to ICJ.
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