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Posted by on Feb 16, 2014 in ICJ |

Criticism of International Court of Justice

However establishment of International Court of Justice (ICJ) was a remarkable step for enforcement of international laws but many of provisions of its statute favours the power bloc of the world. The issues with ICJ are as follows:-

Key Issues

  • Article 36 (1) of statute states that court has jurisdiction in matters specially provided in convention or treaties. So this voluntary clause paves the way for parties to not participate in proceedings and abide by decision of court in a particular matter. For example Iran refused to participate in case of Iran hostage crisis brought by USA which is based on voluntary clause of Vienna Convention on Diplomatic Relations and not complied with the order of Court.
  • Voluntary clause for Compulsory Jurisdiction – Article 36 (2) of statute states that state party can declare any time to accept compulsory jurisdiction of International Court of Justice in matters related to conventions or international law. Till 2011 only 66 members has accepted compulsory jurisdiction, so this limits the jurisdiction of court and among Security Council members only UK has accepted.
  • Nicaragua Case – The Central Intelligence Agency (CIA) of USA mined Nicaragua ports and harbors, so Nicaragua complaints in ICJ against USA for violation of various treaties and general principles of international law. The USA argued that a) ICJ doesn’t have jurisdiction on treaties and b) compulsory jurisdiction did not apply. So when ICJ awards against USA, the USA refused to comply and withdrew its acceptance from compulsory jurisdiction. When this case brought before Security Council, USA vetoed against decision of council.
  • The Principal of Reciprocity further reduce jurisdiction of ICJ. It means any state party which is previously accepted the compulsory jurisdiction of ICJ can withdraw it any time by declarations. For example in Nicaragua case, USA has withdrawn its acceptance due to courts judgement in 1984 that called upon USA to cease and refrain from using unlawful force against govt of Nicaragua.
  • Security Council – Every state party to statute is obliged to abide by judgement of the court and if fail to do so then case may be taken before Security Council. This provision arise following issues:-
    •  If in such case a member of Security Council itself involved then any resolution against that member would be vetoed. This happened (USA uses its veto power) in Nicaragua case when Nicaragua brought case of non compliance of USA with ICJ judgement before the Security Council.
    • Also there is no obligation on Security Council to resolve any issue that brought before Security Council. Also there is no method provided for concerned state that brought up the issue before council to enforce Security Council to resolve the issue.
    • It is not clear that if Security Council modified decision or order of ICJ then that decision can be challenged or not.

All above issues clearly depicts that Security Council has more power than International Court of Justice especially when there is conflict b/w them.

  • Party Judges – Here Party judges means a) judges who are national of one of party or b) ad hoc judges appointed by state party due to no representation of nationals in the court. Many studies or reports shows that judges favour their home state and voted in favour about 90% of the time irrelevant of matter or situations of the case.
  • Bias Voting –The Bias voting is common in non party judges as well because they mostly votes in favour of states similar to their states on dimensions of wealth, culture or political regime. Mostly Security Council members are favoured as SC has special powers in appointment of judges.
  • The Organizations not authorized by UN or private enterprises can’t approach to court for any kind of dispute. Even the organization like ICC is out of jurisdiction of court.

Suggestions

  • As per present conflict scenario in the world, there is need to increase credibility of International Court of Justice in comparison to Security Council. The enforcement of award of ICJ shall be exclusive power of ICJ or decided by voting in General Assembly of UN especially in cases especially if member of Security Council found guilty.
  • If Security Council reversed or modified judgement of ICJ on issue that taken before it then there shall be a procedure to take action against that decision either in GA of UN or elsewhere.
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