[Master's Thesis] Role of International Court of Justice in the Post cold war era

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ROLE OF THE INTERNATIONAL COURT OF JUSTICE IN THE POST-COLD WAR YEARS

Dissertation submitted to Jawaharlal Nehru University in partial fulfillment of the requirements for the award of the degree of MASTER OF PHILOSOPHY

CHANCHAL KUMAR TIWARI

International Organization Division Centre for International Politics, Organization and Disarmament School of International Studies Jawaharlal Nehru University New Delhi-110067 2012

Dedicated to my Grandmother Smt. Girija Devi and Parents Shri Vijay Kumar Tiwari and Smt. Savitri Tiwari

Contents

ACKNOWLEDGMENTS…………………………………………………………......i ABBREVIATIONS……………………………………………………………………. ii LIST OF FIGURES AND TABLES……………………………………………......... iv INTRODUCTORY NOTE Background ………………………………………………………………………. ..v Literature ………………………………………………………………………… vii Methods …………………………………………………………………………..viii Scheme…………………………………………………………………………….....viii

Chapter I ............................................................................................................................ 1 INSTITUTIONAL ASPECTS OF THE COURT .......................................................... 1 (A) Members of the Court ............................................................................................ 1 (B) Judges ad hoc and Chambers of the Court .......................................................... 3 (C) Jurisdiction of the Court........................................................................................ 4 (D) Procedure of the Court .......................................................................................... 9 (F) The Registry .......................................................................................................... 15 Chapter II ........................................................................................................................ 18 THE WORLD COURT IN ACTION, 1947-1989 ........................................................ 18 Analysis of Case Docket ............................................................................................. 19 Analysis of Advisory Functions ................................................................................. 27 Chapter III ....................................................................................................................... 37 CONTENTIOUS CASES AT THE WORLD COURT, 1990-2011 ............................ 37 An Overview of State Parties ..................................................................................... 37 Case Docket ................................................................................................................. 39 Active Participants in the Court ................................................................................ 42 (a) Territorial and Maritime Boundary Disputes during the first phase (19902000) ............................................................................................................................. 48 (i) Libyan/Chad Dispute ........................................................................................... 49 (ii) Guinea-Bissau v. Senegal ................................................................................... 50 (iii) Qatar v. Bahrain ................................................................................................. 50 (iv) Hungary / Slovakia ............................................................................................. 52 (v) Cameroon v. Nigeria ........................................................................................... 52 (vi) Spain v. Canada .................................................................................................. 54 (vii) Two other cases ................................................................................................. 55

(b) Boundary and other Disputes in the Second Phase, 2001-11 ............................ 57 (i) Nicaragua v. Colombia......................................................................................... 58 (ii) Benin / Niger ....................................................................................................... 58 (iii) Malaysia / Singapore.......................................................................................... 58 (iv) Romania v. Ukraine ........................................................................................... 59 (v) Argentina v. Uruguay .......................................................................................... 60 Human Rights Related Cases..................................................................................... 63 (i) Legality of Use of Force ...................................................................................... 63 (ii) Armed Activities ................................................................................................. 66 (iii) Self-determination.............................................................................................. 68 (iv) Other ................................................................................................................... 70 (v) Consular Disputes ............................................................................................... 71 (vi) Two Non- Traditional Cases Pending before the Court ..................................... 74 Compliance with Court’s Orders .............................................................................. 75 Chapter IV ....................................................................................................................... 80 THE COURTS ADVISORY OPINIONS, 1993-2010 .................................................. 80 (1) Legality of the Use by a State of Nuclear Weapons in War and other Armed Conflict......................................................................................................................... 81 (i) Background .......................................................................................................... 81 (ii) Conditions for Admissibility and Views of States .............................................. 82 (iii) Majority Opinion of the Court ........................................................................... 86 (iv) Dissenting Opinions ........................................................................................... 87 (2) Legality of the Threat or Use of Nuclear Weapons ............................................ 89 (i) Claims and Counter-Claims of the States, Court‟s Stand .................................... 90 (ii) Deliberation of the Court .................................................................................... 92 (iii) Majority Opinion ............................................................................................... 93 (iv) Views of Dissenting Judges ............................................................................... 96 (v) Comments on the Opinion................................................................................. 100 (3) Privileges and Immunities of the UN Officials ................................................. 100 (i) Background ........................................................................................................ 100 (ii) The Court Majority and Dissenting Views ....................................................... 102 (4) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory .................................................................................................................... 103 (i) Background ........................................................................................................ 103 (ii) Statements and Objections by Countries .......................................................... 105 (iii) Opinion of the Court ........................................................................................ 107 (iv) Two Contrarian Comments .............................................................................. 111 (i) Court‟s Opinion .................................................................................................. 112 (ii) Short Comments................................................................................................ 113 Chapter V ...................................................................................................................... 115 OVERALL ASSESMENT............................................................................................ 115 Bibliography .................................................................................................................. 122

ACKNOWLEDGMENTS It gives me immense pleasure to express my sincere gratitude to Prof. C.S.R. Murthy for his guidance and support provided to me throughout the last two years of research. I earnestly acknowledge his continuous encouragement to work hard, constant cooperation in solving research puzzles, and invaluable insights to my research area. I shall remain indebted to you Sir. I offer my earnest gratitude to, Dr. Moushumi Basu, Dr. Archna Negi, Dr. Yeshi Choedon, those have steadily encouraged me during my research work. I shall remain indebted to for their support and care during my stay at the study centre. I am also thankful to Prof. Swaran Singh, Dr. Siddharth Mallavarapu, and Dr. J. Madhan Mohan for their invaluable insights and regular cooperation in last two years. I am thankful to the past teachers at Babasaheb Bhimrao Ambedkar University, Human Rights Department, particularly Prof. S.N. Bhatnagar, Prof. Priti Saxena, and Dr. Preeti Misra for their guidance and encouragements. I acknowledge the support that I have got from various libraries in New Delhi. I am thankful to the library staffs of JNU Central Library, JNU Exim-Bank, UNIC-New delhi Library, IDSA Library, British Library, ILI Library, ISIL Library for providing necessary materials that I have consulted during my research work. It leaves me with no words to express my gratefulness to my grandmother, parents and family members (Sakshi, Anchal, Dristi, Reema, Beauty, Amul, Sanket) who have been my source of inspiration and encouragement. Their utmost care and love will never be compensated. I am thankful to my friends and well-wishers Aditya, Akhilesh, Akshay, Kartick Naraynan, kaushlendra, Ladhu, Mohan, Nalnish, Navneet, Radhey, Rajeev, Raj Kamal, Shashi, Sidharth, Vikash, Umeshwar ji, and others for their love and care.

3rd January 2013 JNU, New Delhi

Chanchal Kumar Tiwari

ABBREVIATIONS

AU

African Union

DRC

Democratic Republic of Congo

ECJ

European Court of Justice

ECOSOC

United Nations, Economic and Social Council

ETS

European Treaty Series

GA

General Assembly

GA/RES/

Resolution of the United Nations General Assembly

GAOR

United Nations, General Assembly

ICC

International Criminal Court

ICJ

International Court of Justice

ICJ Reports

International Court of Justice, Reports of Judgments, Advisory Opinions and Orders

ICRC

International Committee of the Red Cross

ICTR

International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for the Former Yugoslavia

ILC

International Law Commission

ILM

International Legal Materials

ILO

International Labour Organization

ILOAT

International Labour Organization Administrative Tribunal

IMCO

Intergovernmental Maritime Consultative Organization

IMO

International Maritime Organization

ITLOS

International Tribunal for the Law of the Sea

KLA

Kosovo Liberation Army

LNT

League of Nations Treaty

NATO

North Atlantic Treaty Organization

NGO

Non-Governmental Organization

OAU

Organization of African Unity

ONUC

United Nations Force in the Congo

PCA

Permanent Court of Arbitration

PCIJ

Permanent Court of International Justice

PLO

Palestine Liberation Organization

SCOR

United Nations, Security Council, Official Records

SG

Secretary General

SC

Security Council

UK

United Kingdom

UN

United Nations

UNSC

United Nations Security Council

UN Doc.

United Nations Documents

UNAT

United Nations Administrative Tribunal

UNCIO

United Nations Conference on International Organization

UNCITRAL

United Nations Commission for International Trade Law

UNEF

United Nations Emergency Force

US

United States

USSR

Union of Socialist Soviet Republics

VCLT

Vienna Convention of the Law of Treaties

WHO

World Health Organization

WTO

World Trade Organization

LIST OF FIGURES AND TABLES

Figure 2.1: Entries of Contentious Cases in the Court’s General List in Different Timeframe Figure 2.2: Year Wise Contentious Cases Entry in General List of the Court, 1947-80 Figure 2.3: Number of Applicants States from Different Regions, 1947-60 Figure 2.4: Number of Applicants States from Different Regions, 1960-80 Figure 2.5: Applicants from Different Region, 1980-89 Figure 2.6: Comparative Trend Graph showing no corresponding link between UN member and Number of states declared Compulsory Jurisdiction Figure 3.1: Number of Countries that have or have not accepted Compulsory Jurisdiction Figure 3.2: Variance in the Number of States that Accepted the Statute and the Number of Contentious Cases

Figure 3.3a: New Case Entries in the General List, 1990-2000 Figure 3.3b: New Case Entries (year wise), 2001-11 Figure- 3.3c: New Case Entries, 1990-2000, Revised Figure 3.3d: New Case Entries, 1990-2011 Figure 3.4: Cases Initiated by Countries of different Regions Figure 3.5: Co-relating between the Case Docket and the Acceptance of Court’s Compulsory Jurisdiction.

Figure 3.6: Cases brought by the Developing and the Developed Countries, 1990-2011 Figure 3.7a: Case brought against Developing Countries Figure 3.7b: Cases brought against Developed Countries Table 3.1: Five Leading Case Initiators Table 3.2: Disputes over Boundary and Fisheries in the post-Cold War Years Table 3.2: Subject Matter of Other Cases Table 3.3: Cases: No Need for Compliance

INTRODUCTORY NOTE

This study will attempt to understand the relevance and effectiveness of the Court, in post-cold war period. The International Court of Justice (ICJ) also known as World Court is an important tool to explore for civilized, rational, and impartial solutions to international disputes, the persistence of which might disrupt friendly and peaceful relations between countries with an assumption that it is necessary to trace the intervening variables that affect the functioning of the Court. The study seeks to examine change in nature the case docket, the variations in procedure, response from the Court and the purpose of the dissenting judgments. The study analyzes the impact of structural changes on the functioning of International Court of Justice and its implications for international legal systems. The study hypothesizes that the end of the Cold War in 1989 has provided fresh opportunity to the World Court to relate itself to the needs of the changing environment. Background The creation of International Court Justice is result of a long process of culmination that developed the methods for pacific settlement. Besides other methods of pacific settlement judicial settlement has been a significant approach. The historical development of the pacific settlement procedures is traced to the technique of arbitration. The first recognized date of origination goes back to 1794 Jay Treaty between the United States and the UK that provided for the creation of mixed commission composed of equal numbers of Americans and British nationals (Rosnne 1989).. At the initiative of the Russian Czar Nicholas II, the Hague Peace Conference was convened in 1899 and 1907 to discuss peace and disarmament. The Conference signed a Convention and established the Permanent Court of Arbitration (PCA). The PCA was the first multilateral institute of its kind and it still exists.

The first international judicial body in history of peaceful settlement of disputes was the Permanent Court of International Justice (PCIJ), established in support of the League of Nations, in 1920. Similar to the PCA the jurisdiction of the PCIJ was limited to the the states parties but unlike PCA it had a new feature that the parties recognized its compulsory jurisdiction in advance. That institution of permanent judges, who were elected by the Council and the Assembly of the League, governed by its own Statute and Rules of Procedure. Even though it was founded and financed by the League but was not a part of it. A member state of the League was not automatically a party to the PCIJ. During the time of Second World War the United States Secretary of State and the Foreign Secretary of the United Kingdom stated that they were in in favour of a new international court after the war. Under the initiative of the United Kingdom an expert committee was constituted in 1943, under the chairmanship of Sir William Malkin. The committee recommended that the new international court should be based on the PCIJ Statute, the jurisdiction should not be compulsory, and no jurisdiction on essentially political matters. The participants of the San Francisco Conference, after World War II, simultaneously with United Nations, esteblished to the International Court of Justice (ICJ). In 1945 PCIJ transferred its archives and effects to the ICJ. On 5 February 1946 the UN General Assembly and Security Council elected the first members. In April 1946 the PCIJ was formally dissolved. The Statute of the ICJ is practically identical to that of PCIJ. The ICJ is principal judicial organ of the United Nations (Article 7(1) and 92). The World Court is a continuation of Permanent Court of International Justice (PCIJ). There are some differences between PCIJ and ICJ in structure and procedures. The principal modifications in the PCIJ statutes are related to the system of election of the members of the court, the chambers of the court, and the provisions relating to advisory opinions. The ICJ has dual jurisdiction (a) contentious and (b) advisory. In its contentious jurisdiction, where parties ask it to adjudicate on a real dispute, it is limited to states only (ICJ Statute article 34.1). The ICJ has jurisdiction over three types of cases: (1) cases by “special agreement”, where the parties to a dispute agree to submit their case to the

court,(2) cases authorized by a treaty that provides that future disputes arising under the treaty will be adjudicated by the ICJ, and (3) cases between states which have declared themselves subject to the “compulsory jurisdiction” of the court. Sixty-seven states have accepted the compulsory jurisdiction of the court. For States which, are not members of the UN, Art. 93 (2) UN Charter provides that such a State may become a party to the ICJ Statute on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. Literature In a report, „An Agenda for Peace Preventive diplomacy, peacemaking and peacekeeping‟ (1992), former UN Secretary-General Boutros-Ghali described the ICJ as „under-used resource for the peaceful adjudication of disputes‟. The validity of this statement can be seen in the fact that the Court‟s average was less than twenty matters per decade from 1945 to 1989 but since 1990 it has averaged over thirty cases per decade. At least 152 proceedings (including advisory proceedings) docket in the Court since the first case in 1947, some 69, or nearly forty five percent, have been filed since 1990. Clearly the ICJ is now busier than before (Cassel 2004). Cassel covers generally changing pattern in case docket in ICJ without detailing the reasons. This study will try to fill this particular gap. If the size of the ICJ‟s docket decade-wise, the docket shows huge decrease in the 1960s and 1970s and it recovered somewhat in the late 1980s and 1990s. In part, the number of states increased; but at the same time, the court seems to have become less popular among the major Western states (Posner 2004).One other major finding of the data is that during the Cold War the court averaged about one judgment per year; now it generates several. After the cold war there was increase in number of cases before the Court which involve of human rights or international humanitarian law in the context of ongoingarmed conflict (Rosenne 1989). This trend has been helped by procedural changes brought into force in 1978 to make it more accessible to the states, although these were of no immediate impact. With the change of international structure it has been seen that there was a marked difference in the quantum of cases.

Rosenne (1995) shows that subject matter of more than forty two percent contentious cases of ICJ during the Cold War (1947 to 1989) were related to land, maritime or boundary disputes and more than thirty percent cases were linked with diplomatic protection of nationals or other property disputes. In contrast, in the post-Cold War era nearly forty five percent cases were related to armed conflict and more than twenty cases were connected with individual human rights. There are many problematic features in procedural and legal aspects. Yasuaki indicates the problem of sources of international law for the ICJ. Generally most lawyers begin their arguments on source by referring to Article 38 of the ICJ Statute. Although many leading international lawyers such as Jennings, Cheng, McDougal, Higgins, Falk and Abi-Saab have recognized that using Article 38 for the purpose of explaining the categories of contemporary international law has “an element of absurdity”.Rosenne (1995) presents a detailed overview of how the ICJ is structured and how it carries out its functions. It is a detail work highlighting its relations with the United Nations and its evolution since the 1899 Hague conferences. Methods The study will primarily adopt empirical, descriptive-analytical method to study the trends and patterns of the World Court‟s work in the past two decades. Both primary and secondary sources are used for the study. The primary sources such as the Case law, official paper and documents, UN resolutions debates, are the fundamental part of this study. The secondary sources including books, articles published in academic journals, newspapers reports and Internet sources have been used to discuss critical appreciation to bring value addition to the study. The study adders to the in-text citations with corresponding reference included in the Bibliography. Scheme This dissertation is in two parts, the first part divides in two chapters the first chapter concerned with the structure and procedures of the ICJ while the second deals with the evaluation of performance of the Court during cold war period. Second part is a detailed

study of the Court‟s work during the Post-Cold War years since 1990 in two different chapters. The third chapter discusses the quantitative as well as qualitative features of the contentious cases during the years, 1990-2011. The fourth chapter devoted to an examination of is a totally qualitative study and describes the procedure, functioning and important dimensions outcomes of the advisory opinions during 1993-2010. These chapters also present some of the finding in tables and figures. The fifth and final chapter attempts an overall assessment. A select Bibliography appears at the end.

Chapter I INSTITUTIONAL ASPECTS OF THE COURT The present chapter attempts to overview organizational structure, procedures and jurisdictional issues of the International Court of Justice (ICJ or World Court). It includes procedures of appointment and dismissal of members, describes different types of cases, procedural rules of the Court, kinds of jurisdictions, manner to institute the case before the Court etc. It also deals with the organizational structure of executive and judicial body and the relationship between them. Simultaneously, the chapter discusses the functions of Registrar and other technical and executive officials of the Registry. It also takes effort to demonstrate the impact and effect of the sovereign states within the structure of the Court. (A) Members of the Court The Court is composed of fifteen independent judges. Unlike other organs of the United Nations which comprise states as members, the International Court of Justice consists of judges elected in their individual capacity. All the member of the Court (Judges) are elected regardless of their nationality but two of them cannot be nationals of the same state (ICJ Statute Article 2, 3(1)). Those with high moral character and qualified in their respective countries for appointment to the highest judicial office‟ are eligible to serve as a member of the Court. It does not mean that only those holding highest office are qualified. Jurisconsults of recognized competence in international law can also be considered for the Court‟s membership (ICJ Statute Article 2). But in international system there is no international machinery to affirm that particular candidate possesses these qualifications. The responsibility for identify the eligible individuals is left to the states who nominate candidates. Most of the states have an interest in seeing that the Court is composed of highly qualified persons and that the reputation of the Court as a whole should remain high (Rosenne 1989: 52). It is also a question of reputation of the states therefore they generally do not compromise on qualification. But the judgment of high

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morality is a difficult task. Some recent studies show the partial and biased nature of judges during proceedings of the courts (Posner and Figueiredo 2005). The members of the Court are elected by the General Assembly and by the Security Council independently from the list of persons nominated by the national groups in the Permanent Court of Arbitration (PCI) (ICJ Statute Article 4(1), 8). The candidate who obtains an absolute majority of votes in the General Assembly and in the Security Council separately is considered as elected (ICJ Statute Article 10(1)). If more than one person of same state obtain absolute majority the eldest of these will be considered as elected. The meetings of each organ continue until the vacancies are filled. If vacancies remain after three meetings of both organs then a joint conference of three members from each organ unanimously choose a person (not necessarily from the list of the PCI) however it never occurred in the history of the Court. If the joint conference is unsuccessful, the judges of the Court will be authorized to select candidates. These judges choose from the candidates who have obtained majority votes either in the General Assembly or in the Security Council. In the event of a tie, the eldest judge will be entitled to casting vote in this procedure. The Statute of the Court provides for representation of the „main forms of civilizations‟ and „the principal legal systems‟ of the world (ICJ Statute Article 9). This is the similar blueprint of principle of „equitable geographical representation‟, applicable to most of the organs of United Nations. This principle presumes that the world is divided in clearly defined and unchanging regions and civilizations. The wording of Article 9 „main forms of civilizations‟ and „the principal legal systems‟ connected with the word “and” which means both aspects should be handled together, but the two requirements may not necessarily go together. The newly independent states during 1950s and 60s inherited the legal system of their former colonial powers but geographically these states were from different regions so the balance between both aspects became a difficult task. After the first election of the Court the regional distribution was as follows: Western and Europe and other States 6 members, the Latin American group 4 members, Eastern European group 3 members, Africa and Asia 1 member respectively. This distribution 2

clearly indicates a strong centralized position of Europe and comparatively a marginal place for Africa and Asia. This situation changed in 1966 when Security Council was enlarged. After this election Asia and Africa increased by 4 seats and Latin America, Western Europe and Eastern Europe declined by 2, 1, 1 seats respectively. This composition has not changed since that date. In an interesting similarity with the Security Council, judges from the permanent members have assured place in the Court. Even as there is no 'veto power' in the election of the judges of the court, nominees of the five members of the Security Council easily get elected the Court. The tenure of the members of the Court is nine years and are eligible for re-election. They continue their duties until their places have been filled. Occasional vacancy will be filled either due to death or resignation, for the remainder of the predecessor‟s term (ICJ Statute Article 15). But in the matter of appointment of successor of Sir Humphery no election took place since the successor would hold office only for a few weeks before the regular election are due (Rosenne 1989: 63). The members of the Court cannot exercise any political or administrative function or engage in any other occupation of professional nature, any doubt on this point will be resolved by the Court itself (ICJ Statute Article 16). They cannot be an agent, counsel or advocate in any case and if any of the members has been taken part as agent, counsel or advocate for one of parties will not participate in decision of such cases (ICJ Statute Article 17). Any doubt on this point is settled by the Court. A judge, in principle, is not entitled to get any instruction from their country. Independence of judges is decided through the guaranteed security of the tenure of the office and a judge can only be dismissed in the unanimous opinion of other judges. (B) Judges ad hoc and Chambers of the Court In contrast to natural principle of law „Nemo judex in causa sua’ (no person can be the judge in his own case) the Statute does not disqualify any judge from the Court‟s sitting in the case because of the similar nationality of states parties in the case (ICJ Statute Article 31). Generally, when in a case the bench does not find judge of one or both

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parties, those parties can appoint a judge of their own choice for the particular case. Such judges, appointed for a particular case are called ad hoc judge. When the Court finds more than one party with same interest and none of the party‟s represented in the Court, the whole group of same interest can appoint only one judge ad hoc in the Court. Nevertheless denial or unwillingness in appointment of ad hoc judge does not affect the further proceeding of the Court. Excluding a few exceptions in the cases judge ad hoc mostly supports the viewpoint of the country which appointed her/him. One important exception of this trend is the view of judge ad hoc Madame S. Bastid from Tunisia who dismissed the view of Tunisia and joined the rest of the Court in Continental Shelf (Tunisia/Libya) judgment. (C) Jurisdiction of the Court Jurisdiction of the Court mainly encompasses two categories. Firstly, jurisdiction in term of subject matters; and secondly jurisdiction in term of the parties. Only states can be parties in contentious cases. Individuals, corporations, parts of federal states, nongovernment organizations (NGO), UN organs and self-determination groups are excluded from direct participation in cases, although the Court may receive information from public international organizations (Rosenne 1989: 63). This does not preclude non-state interests from being the subject of proceedings if one state brings the case against another. For example, in the Nottebohm Case (ICJ Reports 1955: 4) under subject matter of "diplomatic protection", Liechtenstein filed the case on behalf of one of its nationals. The San Francisco Conference refused to change the tradition that only states inherited legal personality in international law, as only states can be party before the Court. Although Article 34(2) provides that the Court can request of public international organizations for information related to case before it. The key principle is that the Court has jurisdiction only on the basis of consent. Article 36 outlines four bases on which the Court's jurisdiction may be founded. The Court has jurisdiction in matters of: contentious and advisory nature. The mandate of the Court is to take up contentious matters brought before it by state parties and adjudicate on the 4

dispute if jurisdiction is upheld. Only states can seek Court‟s direction in contentious matters or disputes (ICJ Statute article 34.1). States, not members of the UN, may Art. 93 (2) UN Charter become a party to the ICJ statute on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. The ICJ has jurisdiction over three types of cases- firstly, cases submitted by state parties by special agreement, between them to that effect (Article 36(1)). This method is based on explicit consent rather than under compulsory jurisdiction. It is, perhaps, the most effective basis for the Court's jurisdiction because the parties concerned have a desire for the dispute to be resolved by the Court and are thus more likely to comply with the Court's judgment. Secondly, the same Article 36(1) also provides for the Court jurisdiction over "matters specifically provided for ... [i]n treaties and conventions in force". Generally the treaties contain a compromissory clause, providing for dispute resolution by the ICJ. In other word if the dispute resolution mechanism indicates that the dispute related to particular treaty would be resolved with the help of ICJ then the Court would have jurisdiction. In simple terms, it refers to the cases authorized by a treaty that provides that the disputes which will be arising in future under the treaty will be adjudicated by the ICJ. Cases founded on compromissory clauses have not been as effective as cases founded on special agreement, since a state may have no interest in having the matter examined by the Court and may refuse to comply with a judgment. For example, during the Iran Hostage crisis, Iran refused to participate in a case brought by the US based on a compromissory clause contained in the Vienna Convention on Diplomatic Relations (ICJ Reports 1979: 7). Since the 1970s, the use of such clauses has declined. Many modern treaties set out their own dispute resolution regime, often based on forms of arbitration (Charney 1987). Despite the fact that a large number of multilateral treaties containing compromissory clauses of this nature it has not proved a major source of the Court activity (Rosenne 1989: 87). During the cold war period only ten cases were brought before the Court on the basis of this kind of jurisdiction. Out of those ten, four cases related to the problems of decolonization of the African continent, two were related to the tensions between India 5

and Pakistan, and two about legality of French atmospheric nuclear test in the South Pacific. Third, Article 36(2) of the Statute allows states to make voluntary declarations accepting the Court's jurisdiction. Sixty- seven states have accepted the compulsory jurisdiction of the Court (at the end of 29th October 2012). This is presently called the compulsory jurisdiction or the system of optional clause (Rosenne 1989: 89). It is being optional for states to make such declaration thus it can also be called optional clause. As the Article states, the states parties to the Court's Statute can any time declare their unilateral consent that they recognize compulsory jurisdiction ipsa facto. This consent is applicable in relation to any other state that accepts the same obligation. This jurisdiction covers all legal disputes concerning the interpretation of a treaty, any question of international law, and the existence of any fact which if established, would constitute a breach of an international obligation and the nature or extent of the damages to be made for the breach of an international obligation. Furthermore, many declarations contain reservations, such as

exclusion

from

jurisdiction

on

certain

types

of

disputes

("ratione

materia")(Alexandrov 1995). The Declarations recognizing as Compulsory the Jurisdiction of the Court take the form of a unilateral act of the State concerned and are deposited with the Secretary-General of the United Nations. Reciprocity is inherent in the system and where two declarations are in different terms jurisdiction exists only to the extent that they correspond (Rosenne 1989: 89). The label "compulsory" to jurisdiction is a misleading term because declarations by states are voluntary. Indeed the San Francisco Conference did not accept the principle of compulsory adjudication as an essential condition for membership of the Court. In contrast it accepted that dispute will be referred by the parties to the Court, in accordance with provisions of its Statute. Rosenne argues that it is true that the jurisdiction is dependent on consent of the parties but there are several ways in which States can give consent and some of these are moving in the direction of true compulsory jurisdiction (Rosenne 1989: 82).

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This clause follows only „legal disputes‟. The legal nature of disputes is occasionally described in terms of specific situations and the consequences. Some examples are the use of force, application of a treaty, expropriation or breach of an agreement. In order for a dispute to come under judicial settlement, the disagreement between the parties must have some practical relevance to their relationship and must not be purely theoretical. It is not the task of international adjudication to clarify legal questions in abstracto. The dispute must relate to clearly identified issues between the parties and must be more than academic (Schreuer 2008: 970). Generally the Court has looked unfavourably upon the arguments that the disputes before it have political nature rather than legal nature. It has stated repeatedly, both in contentious proceedings and in proceedings of advisory opinions, that it will not abdicate its function, merely because a case before it has political implications. In the Teheran Hostages case, Iran argued that the question before the ICJ represented only a marginal and secondary aspect of an overall situation containing much more fundamental and complex elements. The Court should examine the whole political profile of the relations between Iran and the United States (United States Diplomatic and Consular Staff in Tehran) over the last 25 years. The Court rejected this argument and stated that (ICJ Reports 1980: 35): [l]egal disputes between sovereign States by their very nature are likely to occur in political contexts, and often form only one element in a wider and longstanding political dispute between the States concerned. Yet never has the view been put forward before that, because a legal dispute submitted to the Court is only one aspect of a political dispute, the Court should decline to resolve for the parties the legal questions at issue between them. Nor can any basis for such a view of the Court‟s functions or jurisdiction be found in the Charter or the Statute of the Court; if the Court were, contrary to its settled jurisprudence, to adopt such a view, it would impose a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes.

In the Nicaragua case, the United States objected to the claim not on the basis that the dispute is political but because the matter is essentially one for the Security Council since it involved a complaint involving the use of force. This argument also did not find favour in the Court (ICJ Reports 1984: 440): [T]he Court is of the view that the fact that a matter is before the Security Council should not prevent it being dealt with by the Court and that both proceedings could be pursued pari

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passu. […] The Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same events.

It must also be remembered that, as the Corfu Channel case (I.C.J. Reports 1949: 4) shows, the Court has never shied away from a case brought before it merely because it had political implications or because it involved serious elements of the use of force. The ICJ reaffirmed its dismissal of a „political questions doctrine‟ in 2004 in an advisory Opinion on the Israeli Wall case it rejected the view that it had no jurisdiction because of the political character of a question put before it (ICJ Reports 2004: 154): [T]he Court cannot accept the view, which has also been advanced in the present proceedings, that it has no jurisdiction because of the „political‟ character of the question posed. As is clear from its long standing jurisprudence on this point, the Court considers that the fact that a legal question also has political aspects, “as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a “legal question” and to deprive the Court of a competence expressly conferred on it by its Statute‟ (Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J, Reports 1973, p. 172,para. 14). Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by international law.

The Court has affirmed in its Opinion on the Legality of the Threat or Use of Nuclear Weapons (ICJ Reports 1996). In short, a dispute will be legal if the claim is based on treaties, legislation and other sources of law and if remedies such as restitution for damages are required. It is in the hands of the claimant or applicant to present its claim in legal terms. Attempts by respondents to characterize disputes as political rather than legal have not succeeded. What matters are not the political circumstances but the assertion of legal rights (Schreuer 2008: 978). Among the permanent members of Security Council, at present, only the United Kingdom has filed a declaration to accept compulsory jurisdiction of the Court. The United States accepted the compulsory jurisdiction during 1946 to 1985 in extremely restricted manner; while China and France depart their earlier acceptance. In contrast the USSR never accepted this clause. Out of total sixty-seven states that have accepted a declaration, only seventeen states are from developed world and the rest belong to the developing or least developed world. In the Court's early years, most declarations were 8

made by developed countries. Since the Nicaragua Case, declarations made by developing countries have increased. It reflects a growing confidence in the Court since the 1980s. Only five Asian states have accepted the compulsory jurisdiction. Developed countries however have sometimes increased exclusions or removed their declarations in recent years. Article 36(5) provides jurisdiction on the basis of declarations made under the Statute of the League‟s Permanent Court of International Justice (PCIJ). Declarations made under Article 36 of the Statute of the PCIJ which still are in force will be considered as acceptance of the compulsory jurisdiction of International Court of Justice too. Article 37 of the Statute similarly transfers jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the PCIJ. (D) Procedure of the Court The official languages of the Court are French and English (ICJ Statute Article 39 Para 1). On the basis of the agreement of parties case can be conducted either in French or in English. In the absence of the agreement parties can use language on their own preference (ICJ Statute Article 39 Para 2). On the request of any party the Court can authorize a language other than French and English for the party (ICJ Statute Article 39 Para 1). The decision of the Court will be given in French and English where there is no agreement between parties the Court will determine which of two texts should be considered as authentic and authoritative. The procedure of the Court is emanates from three sources viz. the Statute of the Court, the Rules of Court adopted on 14 April 1978, and the Resolution Concerning the Internal Judicial Practice of the Court adopted on 12 April 1976. According to the Court‟s procedures any contentious case can be brought before the Court either by special agreement or by a written application addressed to the Registrar of the Court (ICJ Statute Article 40 Para 1). It is the duty of the Registrar to communicate the application to all concerned (ICJ Statute Article 40 Para 1). The parties are represented before the Court by the Agent (ICJ Statute Article 41 Paragraph 1). The 9

Agent can take assistance of counsel or advocates. They all enjoy the privileges and immunities necessary for the independent exercise of their duties (ICJ Statute Article 41 Paragraph 1). The procedure of the Court is divided in two parts; first written and second oral. The written proceedings consist of the communication to the Court and to the parties of memorials, counter-memorials and, replies (ICJ Statute Article 43 paragraph 2). All papers and documents in support of the said communication or memorials are also part of written proceedings. A Memorial contains a statement of the relevant facts, a statement of law, and the submissions while a Counter-Memorial contains an admission or denial of the facts stated in the Memorial, any additional facts if necessary, observations concerning the statement of law in the Memorial, a statement of law in answer thereto and the submissions (Rules of the Court of 1978 Article 49). A certified copy of every document produced by one party will be communicated to the other party. The pleadings in a case begun by an application consists, following order, firstly a Memorial by the applicant and secondly a Counter-Memorial by the respondent. The Court can authorize or direct that there will be a Reply by the applicant and a Rejoinder by the respondent if the parties so agreed, or if the Court decides, proprio motu (on own initiative ) or on the request of one of the parties, that these pleadings are necessary. When, a case begun by the notification of a special agreement, the number and order of the pleadings will be governed by the provisions of the agreement, unless the Court, after ascertaining the views of the parties, decides otherwise (Rules of the Court of 1978 Article 45-46). If the special agreement contains no such provision, and if the parties have not subsequently agreed on the number and order of pleadings, they shall each file a Memorial and Counter-Memorial, within the same time-limits. The Court will not authorize the presentation of Replies unless it finds them to be necessary. 1 The oral proceedings consist of the hearing by the Court of witnesses, experts, agents, counsel, and advocates (ICJ Statute Article 43 Paragraph 5). Article 54 of the Rules of the

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Court of 1978 states that after the closure of the written proceedings the date for the opening of the oral proceedings will be fixed by the Court, which can also decide that the opening or the continuance of the oral proceedings be postponed. When the Court is not sitting, its powers under this Article shall be exercised by the President. A written request for the indication of provisional measures (also known as interim measures) with specific reasons can be made by a party at any time during the course of the proceedings. This provision was inserted at the later stage in the draft of a proposal from the Brazilian jurist Raul Fernandes (ICJ Report 2001: 504). A request for such measures is treated as a matter of urgency therefore request for the indication of provisional measures have priority over all other cases. The rejection of a request for the indication of provisional measures does not prevent the party which made it from making a fresh request in the same case based on new facts (Rules of the Court of 1978 Article 75). The Court can request for information from the parties on any matter connected with the implementation of any provisional measures it has indicated (Rules of the Court of 1978 Article 78). The cases filed after the cold war period growing trend that the applicant states bringing the cases are increasing in number, to bring frequently, and often together with their applications, the requests for provisional measures (Bedi 2007: 89). The contentious procedure of the Court provides the Parties with the right to raise preliminary objections or preliminary questions in order to prevent the Court from delivering judgment on the merits of the case (Rules of the Court of 1978 Article 78). The procedures described under Article 79 of the Rules (As amended on 5 December 2000) provides that the preliminary objections must be filed as soon as possible, and not later than three months after the delivery of the Memorial; the filing of these objections suspend the proceedings on the merits and can be answered by the observations and submissions of the opposing party, within the time-limit fixed by an order; oral proceedings on the objections follow, the party which raised them is called upon to speak first; the Court gives its decision in the form of a judgment; if the Court rejects the objections, the proceedings on the merits are resumed from the point of interruption.

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Under provision of the Statute's article 62 a third State can request for permission to intervene if it considers that it has an interest of a legal nature which may be affected by the decision in the case. The Court will decide whether such a request should be granted, as a matter of priority unless in view of the circumstances of the case the Court shall otherwise determine (The Rules of the Court 1978 Article 84). For entertaining evidence from the parties or otherwise Articles 44 and 48 of the Statute are the pillar provisions. In implementation Articles 31 and 66 contemplate the arrangements of inspection in loco or visit in situ during the Cold-War period. In the case of South West Africa request for an inspection in loco came for the first time from the Respondent (South Africa). The request was made during the oral proceedings and was made subject to certain conditions that the Court should visit the Republic of South Africa, and the further proposal then made that the Court should also visit the Applicant States and as well one or two sub-Saharan African countries of the Court‟s own choosing. All these proposals were opposed by the Applicants. After hearing the contentions of the Parties, the Court made an Order on 29 November 1965 in which it decided not to accede to the request of the Respondent. In the post-Cold War period, the Court accepted for first time in its history, the request for a visit in the case of Gabcikovo-Nagymaros Project. It is different from the previous two cases in the sense that the Agents of both the Parties jointly requested the Court in a letter of 3 February 1997 which contained detailed proposals for the conduct of the visit in situ. The Court made an Order on 5 February 1997 in which it accepted these proposals and decided to exercise its functions with regard to obtaining of evidence by visiting a place or locality to which the case related. The Court made this visit from 1 to 4 April 1997 (ICJ Reports 1997: 4-5). It visited a number of locations along the Danube River and took note of the technical explanations given by the representatives who had been designated for the purpose by the Parties.

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The judgments of the Court can be divided in parts. Judge George Schwarzenbergen writes (1986: 674-75): In the Statutes of the two International Courts, five points relating to Judgments are expressly settled: (1) Judgments are to state the reasons on which they are based. (2) The names of the Judges „who have taken part in the decision‟ are to be stated. (3) If in whole or in part, judgments do not represent the unanimous opinion of judges, any judge may append an Individual Opinion. (4) Judgments are to be signed by the President and the Registrar. (5) With due notice to the Agents, judgments are to be read in open court.

Article 57 of the Statute of the Court provides scope for separate opinion. When Judges find themselves unable to correspond in the decision or part of the decision, or vote in favour of the decision but their corresponce is not based on the reasoning of the Court, or part of the reasoning of the Court, can add to the decision a separate statement of their individual opinions. These individual opinions can be derived in the form of firstly, Declaration which can be a brief indication of combination or dissent, Secondly Separate Opinion as a statement of a judge who votes in favour or partly in favour of the operative provisions but disagrees with whole or part of the reasoning or likes to add more or different reasons and reasoning, and finally Dissenting Opinion as a statement of a judge who votes either against the decision or the major part of it ; it includes judge‟s reasons for disagreement. These statements can be individual as well as joint and the Judges decide themselves what title they should give to their statements. These statements do not indicate the weak observation of the case but the Judge Jennings (Jennings 1989: 346) state that: The separate or dissenting opinions are not ... independent; they are to be read with the Court‟s judgment; which is therefore truly the Court‟s judgment and not merely a majority judgment. That this collegiate responsibility involving every Member of the Court is clearly an important enhancement of the judgment‟s authority is obvious. It also has implications for separate opinions and even for those separate opinions that may be described as dissents.

Judge Hudson argues that „The Statute does not seem to envisage concurring opinions, though Article 57 refers to dissents from whole or a part of the judgment.‟ The practice and theory reflect that the dividing line between dissenting opinions and separate opinions is very thin (Bedi 2007: 101).

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(E) Officers of the Court The President and the Vice-President are elected by the Members of the Court after every three years by secret ballet. The incurrent President and the Vice-President are eligible for re-election. If the former President is still a Member of the Court on the date of the election then he/she will conduct the election. If a vacancy in the presidency or the vicepresidency occurs before the date when the current term is due to expire under Article 21,paragraph 1, of the Statute and Article 10, paragraph 1, of the Rules of Court, the Court will decide whether vacancy shall be filled or not for the remainder term. In the case of vacancy in the presidency or of the inability of the President to exercise the functions of the presidency, the Vice-President will conduct the election. In case the Vice President‟s office also is vacant, election will be conduct by senior judge. After the election of President the new President will conduct the election of the Vice President. The term of office of the President and the Vice-President will commence from the sixth of February2 in the year in which the election occurred. The President will preside at all meetings of the Court; he/her shall direct the work and supervise the administration of the Court. The President takes necessary measures in order to ensure the continuous exercise of the functions of the presidency. The President directs its work and supervises its administration with assistance of several committees. These committees are composed of Members of the Court. Article 18 of the Rule of Court provides that if a Chamber includes the President or Vice-President of the Court, or both of them, the President or Vice-President, will preside over that Chamber. The Budgetary and Administrative Committee is one of important committees that takes decisions on the administrative matters. The President chairs this committee and it is composed of the Vice president and four to five other judges. The Members of this

2 This is the date on which the terms of office of the Members of the Court elected at the first election begun in 1946.

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committee are elected triennially. Apart from this, two committees, are on library and the other on rules- were set up in 1970 and in 1979 respectively. The Rules Committee advises the Court on procedural issues and working methods; presently the Committee is composed of six members of the Court. The Library Committee approves proposal for acquisition of books and other materials for the library of the Court and supervises the ongoing modernization of its services. At present this committee comprises three members of the Court. (F) The Registry The Registry is the permanent administrative organ of the Court, headed by a Registrar who is assisted by a Deputy-Registrar. The Registry is answerable only to the Court. Its activities are not limited to administration but its activities are judicial and diplomatic also. The Court appoints its Registrar from among candidates proposed by Members of the Court appoints him/her for a term of seven years and he/her can be reappointed. To assist the Registrar the Court appoints a Deputy-Registrar who is governed under the same conditions and in the same way as the Registrar. The President will fix a date for the closure of the nominations and information concerning the candidates. Nominations will comprise of the relevant information concerning the candidate, as to his age, nationality, and present occupation, university qualifications, knowledge of languages, and any previous experience in law, diplomacy or the work of international organizations Article 26 of the Rules of Court and Article I of the Instructions for the Registry define the general functions of the Registrar. The Registrar is the channel of all communications to and from the Court. The Registrar maintains a General List of all cases according to the order in which the cases are received in the Registry. He/she in person or through his deputy attends meetings of the Court, and of the Chambers. The Registrar is also responsible for the preparation of minutes of meetings. Interestingly the Registrar, not the judges of the Court, signs all judgments, advisory opinions and orders of the Court as

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well as the minutes. Apart from these duties the Registrar is also responsible for the administration of the Registry that include the accounts and financial administration. The diplomatic work is characterised by his/her role in overseeing the Court‟s external relations with international organizations and States. The Registrar has custody of the seals and stamps of the Court, the archives of the Court and other archives (such as the archives of the Nuremberg Tribunal). The Deputy-Registrar assists the Registrar and acts as Registrar in the absence of the Registrar. Since 1998, the Deputy-Registrar gets hold over wider administrative responsibilities, including direct supervision of the Archives, Information and Communications Technology and General Assistance Divisions.Article 27 of the Rule of Court provides that if both the Registrar and the Deputy-Registrar are unable to carry out the duties of Registrar, the President will appoint an official of the Registry to discharge those duties. If both offices are vacant at the same time, the President, after consulting the fellow members of the Court, will appoint an official of the Registry to discharge the duties of Registrar till pending of election. The importance of the Registrar and the Deputy-Registrar has already been shown but it is worth noting that in the sixty seven years history of the Court only once a developing country national (Colombia) occupied the position of the Registrar and as it was in the case of the Deputy Registrar‟s office too. All other Registrars and Deputy-Registrars belonged to developed world (Registrar from Norway, Spain, France, Australia, and Belgium; the Deputy-Registrar from France, Australia, United Kingdom and USA). These differences are not only on the basis of nationality but also on the basis of ethnicity or gender. No Black has ever been posted as Registrar or Deputy Registrar. The difference is also clear on the basis of gender and no female get a chance for these positions. Departments of Legal Matters, Linguistic Matters, and Information are the three primary part of the Registry. Apart from these departments the Registry consists of various technical Divisions such as- Personnel/Administration; Finance; Publications; Library; IT; Archives, Indexing and Distribution; Shorthand, Typewriting and Reproduction; General Assistance and the secretaries to Members of the Court. According to ICJ web 16

page it currently comprises some 100 officials, either permanent or holding fixed-term contracts, appointed by the Court or the Registrar. The officials of Registry enjoy the same privileges and immunities as members of diplomatic missions at The Hague of comparable rank. All staff of Registry comes under Staff Regulations and Instructions for the Registry. These regulations are identical with the United Nations Staff Regulations.

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Chapter II THE WORLD COURT IN ACTION, 1947-1989 This study is an attempt to assess the performance of the International Court of Justice (World Court) during cold-war period on the basis of some empirical methods. The performance can be determined of an organization only when one can measure its success according to the fulfillment of its objects and aims. The analysis would include not only the manner in which disputes and questions were handled in the framework of the Court‟s Statute but also how those perceived outside the Court‟s functioning. In general, the Court pursues two primary objectives or claim - firstly, settling legal disputes submitted by states in accordance with international law and secondly, rendering advisory opinion to United Nations bodies on legal questions (ICJ Statute Article 65 paragraph 1). Statute of ICJ is an integral part of United Nations Charter (UN Charter Article 92). The preamble and provisions of the Charter underlined the importance of the International Court of Justice, as part of the world body. A cursory look at the Charter shows two important parts: in the preamble „[T]o establish conditions for justice and maintain international peace and security‟ and again in Article 1 Para 1 indicates that peace and security should be in conformity with the principles of justice and international law. It is possible to identify a few variables here; settlement of disputes in legal way, advisory opinions and to help in peace and security matters in conformity with Justice and international law. It is not possible to prioritize „peace‟ over „justice‟ (or vise versa) as the overriding objective of the Court. The relationship between peace and justice is not defined in the Charter. On the one hand, Jessup (1971: 29) declined to equate justice and peace when he states that „there can be no peace without justice and justice need not always be embodied in a judicial decision‟. Higgins derived justice as more subjective than principle of international law (Higgins 1970: 9). On the other hand, Roling asserts that new world 18

appeals to justice (Roling 1960: 94), Friedmann describe justice as valid concept which possesses the Aristotelian notion of „equality for equals‟ (Friedmann 1967: 25). A thorough study of Charter indicates that the notion of justice is not included in it directly but it indicates the tools of justice: human rights, to practice tolerance and live together, peace and security, advancement of all people, independence of judges etc. An understanding of the performance of the World Court may need to take into accounts at least three aspects: access to the world court; competence of countries to use it; and willingness to utilize the Court (Romano 2002a: 539). These three have much to do with the questions how seriously outer world perceives the Court. So firstly one may scrutinize the case docket of the World Court in order to determine success level of ICJ. This method has an anomaly, a court can be highly successful without in fact hearing a large number of cases because „if the Court is efficient in the sense that its judgments enable state parties to minimize the need of the Court then the number of cases filed should indeed decrease‟ (Satzer 2007: 20). This study will examine this contention in some detail. Analysis of Case Docket The question of accessibility is a primary concern with regard to contentious cases. Accessibility depends upon the various internal and external factors. On the one hand internal factors include procedure and structure of the Court, procedure and process of appointment of judges, the laws applied by the Court, fairness of judges etc. and on other hand some possible external variables are policy and ideology of the concerned states, its financial condition, shape of international political structure, form of government, legal system of state etc. The case docket during the Cold-War period yields a picture on accessibility to the Court. The analysis would be based on the number of cases in a specific time-frame, the parties to the cases, the nature of the disputes, the time taken by the Court to reach its conclusion, the reaction of the state‟s parties etc.

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First question concerns with the number of cases and the pattern of docket year by year considering the year 1989 as for end of Cold-War.3 The Cold-War era could be subdivided into three parts: from 1947 to 1960, 1961 to 1980 and 1981 to 1989. Figure 2.1: Entries of Contentious Cases in the Court’s General List in Different Timeframe

40

35

35 30

Number Of Filed Cases in four different time period

25 20 13

15 9

10

Linear (Number Of Filed Cases in four different time period)

4

5 0 1947-60

1961-70

1971-80

1981-89

The number of contentious cases during the cold-war period was sixty-one. Counted here are different folio numbers in „General List‟ for same cases as different matters, for example, Asylum (Colombia/ Peru) case has three entries in ICJ‟s general list with three different folio numbers. The first case was brought before the court in 1947. During the time period of 43 years (1947 to 1989) the average filing rate is 1.42 cases per year. But the rate was hardly uniform. The World Court has made a good start but the trend shows (Figure 1) a huge decline in number of cases in 1960s. In first 14 years per year case

3 Both the USSR and USA declared an end to the Cold-war after the 1989 Malta Summit. The then Soviet leader, Mikail Gorbachev, later stated that: "The Malta Summit in 1989 was so important, that if it had not taken place, the world out there would be unrecognisable to the one we live in today. President Bush stated that: “We can realise a lasting peace and transform the East-West relationship to one of enduring cooperation. That is the future that Chairman Gorbachev and I began right here in Malta.” (http://www.historylearningsite.co.uk/malta_summit_1989.htm)

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filing ratio was about 2.5 but in 60s it decreased to 0.6. The situation improved marginally (0.9 case per year) in the 1970s. There was no case filed in year 1963-66, 1968-70, 1974, 1975, 1977-80. More than half time during time period of 20 years (1960 to 1980) the Court didn‟t have any new entry in its case folio. There were only three years (year 1967, 1972 and 1973, two, two and three cases respectively) when more than one case appeared in the new case entry. The Court seemed to reach a dead end but the last decade of the cold-war period showed a change in the case docket. Figure 2.2: Year Wise Contentious Cases Entry in General List of the Court, 1947-80 6

6

6

5 4 4 3 3

3 3

3

3 2 2

2

2

2

2 1

1 1

1

1 1

1 0

0

0

0

0 0 0 0

0 0 0 0

0 0

0

0

0

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Figure 2.3: Number of Applicants States from Different Regions, 1947-60

UK, 6, 17%

USA, 7, 20%

Western Europe, 10, 29%

Other, 12, 34%

The Court had 35 cases in its docket during the first phase of 14 years. The United States, United Kingdom and Western European countries4 brought nearly two thirds of cases (The count includes both the applicant countries and the countries who filed cases with special agreements). The major applicants were UK and USA. They filed more than one third of total cases (13 cases UK Six and USA seven). The US and its allies started case cannonade as like bombardment (or Caserdment) during 1953 to 1960. They filed nine cases against USSR and its allies and ICJ turned into a wrestling arena for one side of the cold-war divide. They tried to use the Court as a tool to score over the ideological rival. In this period USA filed four cases against USSR (three times in aerial incident cases) and three cases against the Soviet allies Hungary, Bulgaria and Czechoslovakia. Apart from this, two of the American allies- Israel and UK- had filed cases against Soviet ally

4 The count includes both the applicant countries and the countries who filed cases with special agreements.

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Bulgaria. The subject matter of all these cases was Aerial Incident. Interestingly all these cases did not ultimately lead to a decision. A possible explanation why no other aerial incident case brought in the years that followed. Presumably states have learned to understand the doctrinal limitation of the court and hence desisted from bringing frivolous cases (Satzer 2007: 20). Of the 35 cases, only nine were connected with states other than Western Europe and USA. The number will go down when we scrutinize these cases. Indeed, five cases, Asylum (Colombia v. Peru), Request for Interpretation of the Judgment of 20 November 1950 in the Asylum case (Colombia v. Peru),and Haya de la Torre (Colombia v. Peru) in one side and South West Africa(Liberia v. South Africa) and South West Africa(Ethiopia v. South Africa), were expansion of only two cases and one case was a part of USA‟s friendly state Israel which had been counted already. Thus, after avoiding double counting of Israel‟s case and consolidating three „Asylum‟ related cases and two West African cases into one case, the number goes down to five. Even if the number stands at nine cases, it is worth nothing that only 13 countries in these cases. Out of these thirteen countries three belonged to Africa, four from South America and five from Asia and one from Eastern Europe. Notably, developing countries were applicants in only five cases; all of these cases were brought against other developing countries. The twenty year period constituting the „second phase‟ (1961 to 1980) of the Court was completely a washed-out era in its whole history. In these twenty years only 13 new cases were filed in ICJ. Nearly three fourths of these cases comprised subject matters of continental shelf (4 cases), fisheries jurisdiction (2 cases) and nuclear test (2 cases). The USA and the UK have participated as an applicant only in two cases but the European countries were in the forefront. Two pacific countries (Australia and New Zealand) participated in ICJ for the first time against France to seek prohibition of nuclear test in Pacific Ocean. Interestingly Federal Republic of Germany (West Germany) participated in three cases: two cases of Continental Shelf and one concerning fisheries jurisdiction. The decline of interest in ICJ can be identified as one reason for ICJ‟s loss of popularity after the 1950s (Satzer 2007: 19).

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Figure 2.4: Number of Applicants States from Different Regions, 1960-80

Africa, 2, 15%

Asia, 2, 16% West Europe, Pacific countries and USA, 9, 69%

Cameroon was the first African country to file a case against a major power UK in 1961. It was the first case when an African country challenged directly a Western world. This case was entirely an exception; prior to this case, applicants were European countries and US, whereas, none of third world country filed any case against any European country. There were only four new entries in ICJ general folio list. Thus, throughout the 1960's there were various unofficial and scholarly expressions of concern about the all-toosparing use of the Court (Gross 1986: 574). In 1961 Rogers said that the basic problem is „the reluctance of states to refer international disputes to the court‟ (Quoted in Jessup 1971: 46). The interesting thing of this period (1960 to 1980) is reluctance of „Western World‟ to institute cases against a country of the Soviet bloc. There was no case in this period against Soviet bloc or by a Soviet bloc country. This was the period when the cold-war rivalry began to ease. After the Cuban Missile Crisis in October 1962, the brief spell of détente till the end of 1970s had a bearing on this development.

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On the other hand, one important case of South West Africa became one of the possible reasons for the decline in the prestige of the Court. For the first time in ICJ‟s history the President of the Court exercised his „casting vote‟ when there was a tie in Court (SevenSeven).5 This judgment has been strongly criticized by the scholars of international law for adopting a restrictive view of the dispute resulting in loss of trust and confidence of the Third World countries in the Court to legitimize the fight against colonialism. This kind of perception can be a reason that third world states have found ICJ as an instrument of major powers and the Court lost confidence of third world. On the other hand „détente‟ period made the conditions for no use of the Court because in this period there was no need of this instrument. Nevertheless, the situation has changed in the 1980s. From the 1980s an increasing number of developing countries brought case before the Court (Satzer 2007: 20). The profile of the Court in the third phase (1981 to 1989) was somewhat better with entry of 13 new cases. During this decade, nearly 80 percent of the cases before the Court were brought by developing countries (10 out of 13). Of these, over half were between developing countries and an additional 23 percent were brought by developing countries against developed countries. This period is significant in a sense, because third world states started to file case against developed world (three cases namely, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA)-1984, Aerial Incident of 3 July 1988(Islamic republic of Iran v. USA)-1989, and Certain Phosphate Lands in Nauru (Nauru v. Australia)-1989). Out of three such cases two were against the USA and one against Australia. In both cases USA was on back-foot with a big defeat in Nicaragua case while it had to return to negotiations with Iran in the „Aerial Incident

5

The South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), relates to the continued existence of the Mandate for South West Africa and the duties and performance of South Africa as Mandatory power, were instituted by Applications of the Governments of Ethiopia and Liberia in the Registry on 4 November 1960. By an Order of 20 May 1961 the Court put together the proceedings in the two cases. The Government of South Africa raised preliminary objections to the Court's proceeding to hear the merits of the case, but these were dismissed by the Court on 21 December 1962. The Court found that it had jurisdiction to adjudicate upon the merits of the dispute. However in its Judgment the second phase of the cases the Court, by the President's casting vote,, found that the Applicant States could not be considered to have established any legal right or interest in the subject matter of their claims and accordingly decided to reject them. (United Nations 1994: 69)

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case‟ (ICJ Reports 1996: 10). Australia also had to enter in negotiation with Nauru and Nauru agreed to discontinue the case (ICJ Reports 1993: 322). This was the precursor of a new era in the Court's evolution. One other remarkable point emerges from the trends in the 1980s, no case was filed by a developed country against another developing country (Romano 2000: 382). Disappearing reflections came out when the ICJ found jurisdiction in Nicaragua case and agreed to hear case on the merits. The Reagan Administration announced its intention to withdraw the U.S. acceptance of ICJ jurisdiction over all "political" disputes (New York Times 1985).

Figure 2.5: Applicants from Different Region, 1980-89

South America, 4, 33%

West Europe and USA, 3, 25% Asia , 1, 8%

Africa, 4, 34%

The Soviet stand was quite clear ever since the establishment of World Court. The Soviet bloc was not in favor of using it as they perceived it as an ideological and jurisprudential contrivance. Their distrust is reflected in the characterization, „The International Court in the Service of Anglo-American Imperialism‟ (By Soviet jurist K. A. Koronovin quoted in Rosenne 1995: 672). In sum, the Soviet bloc has not engaged with ICJ „willingly‟ (This 26

term denote they did not participate as Applicant in contentious cases) during entire period of cold-war. One entire ideological group had not believed in the Court. The Court could not gain trust of third world countries in its first 14 years. Either these counties were suspicious from the function of ICJ or there were very few conflicts among third world nations. Analysis of Advisory Functions An advisory opinion can be defined as 'an authoritative but non-binding explanation of a question or issue‟ (ICJ Reports 1950: 71). Even though an advisory opinion cannot create legal obligations, it can carry „legal value and moral authority‟ (ICJ Reports 1966: 930). Advisory opinions may be more significant than judgements in contentious cases because the opinion influence the broad interpretation of international law for all States rather than just for the parties to a particular dispute (Pasqualucci 2003: 30). In accordance with Articles 96 of the UN Charter and 65 of the Court‟s Statute, the Court may give an advisory opinion on the requests submitted to it by the General Assembly, Security Council and by other UN organs and specialised agencies authorised by the General Assembly. Rosenne asserted that Article 65 indicates just two essentials of the advisory jurisdiction, firstly that the request must be made by a duly authorised organ (ratione personae), and secondly that the question for an opinion ought to be a „legal question‟ but the Court Statute and the UN Charter are silent over the third element, namely the beneficiary of the opinion (Rosenne 1997: 988-989). Rosenne has pointed out that the Statute has used the term “jurisdiction” mainly in a contentious perspective but the term „competence‟ is frequently used in regard to advisory opinions with an occasional use of the term „jurisdiction‟ (Rosenne 1997: 536). On the one hand, „Jurisdiction‟ is related to the Court‟s capacity to decide cases before it with binding force. On the other hand „competence‟ includes both jurisdiction and elements of justification when the Court is exercising its function. It seems that the Court does not distinguish between the two terms „jurisdiction‟ and „competence‟. Differentiating between the Court‟s powers in advisory and contentious cases might lead to the proposition that the advisory job is less judicial 27

than contentious function (Paratap 1972: 114-115). Sir Gerald Fitzmaurice, has suggested that the term „jurisdiction‟ should rather be used for both, contentious and advisory functions, however „competence‟ should be used only when referring to the capacity of an organ to request an opinion (Fitzmaurice 1958: 8-9). The ICJ in the exercise of the principle of compétence de la competence may determine whether it has jurisdiction to give an advisory opinion or a judgement in a contentious case (Aljaghoub 2006: 37). This principle is embodied in Article 36(6) of the Court‟s Statute which provides that “in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.” The legal foundation of the ICJ‟s discretionary power in its advisory function can find in the terms of the liberal language of Article 65(1) of the Statute which provides that “the Court may give an advisory opinion.” The term “may give” which is contained in Article 65 of the present Statute is deeply rooted in Article 14 of the Covenant of the League of Nations. Article 14 of the League Covenant, in its French version used the word “donnera” which means shall or will give, while the English version reads may give. In the Peace Treaties Case the Court finds that „Article 65 of the Statute is permissive. It gives the Court the power to examine whether the circumstances of the case are of such a character as should lead it to decline to answer the request‟ (ICJ Reports 1950: 72). In the Western Sahara Case the Court stated (ICJ Reports 1975: 21): In exercising this discretion, the International Court of Justice, like the Permanent Court of International Justice, has always been guided by the principle that, as a judicial body, it is bound to remain faithful to the requirements of its judicial character even in giving advisory opinions. If the question is a legal one which the Court is undoubtedly competent to answer, it may none the less decline to do so.

The Court had taken similar view in the matter of in its advisory opinions on several other occasions. In the 1951 Reservations Case; the 1956 ILO Administrative Tribunal Case; the 1962 Expenses Case; the 1973 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal Case, and the 1989 Mazilu Case. The Court had 20 requests for advisory opinion during the cold-war period. Half of total requests (Ten requests) occurred in the first 14 years but the next twenty year period 28

demonstrated a huge decline, with only five advisory requests. Out of 20 advisory opinions 12 were from the United Nations General Assembly. The impact of cold-war politics was clear because advisory competence of the Court jurisdiction was involved to settle down political policy differences (Rosenne 1995: 671). In the early years of the Court, General Assembly made use of it directly or indirectly against Soviet bloc, twice on interpretation of Article 4 of UN Charter (Conditions of Admission of a State to Membership in the United Nations and Competence of General Assembly for the Admission of a State to the United Nations) and once for „Interpretation of Peace treaty with Bulgaria, Hungary and Romania’. The last one was directly against the Soviet bloc. Thus such use of the Court signifies „cold-war‟ impinging on the performance if not the prestige of the Court. The Soviet Union categorically opposed General Assembly‟s idea of requesting the Court‟s opinion (United Nations 1949). Also the USSR contested Peace Treaty matter and in fact Soviet judge Krylov delivered a dissenting judgment arguing that the Court should have declined to give an opinion in the case. The two advisory requests which concerned interpretation of Article 4 of the Charter were abstract in the nature and opinion rendered failed to resolve could have solved the question of admission (Rosenne 1995). The socialist judges insisted on national sovereignty as both a legal and a political principle (Grzybowski 1964: 537). Judge Zoricic stated that the Court lacked power to correct an error in the interpretation of an international obligation by a sovereign state. The break through to the question of admission in UN was brought through a state political compromise, loading the entry of 16 countries in 1955 (United Nations 1955). Thus our preliminary analysis demonstrates that the ICJ could not sustain the early good start because of some internal and external trends. The case docket of the ICJ during cold-war presented a portrait of underutilization (Gross 1986). In a report, „An Agenda for Peace Preventive diplomacy, peacemaking and peace-keeping‟ (1992), the UN Secretary-General Bouts-Ghali described the ICJ as „under-used resource for the peaceful adjudication of disputes‟. During the cold-war period entire Soviet bloc, unwilling to allow any interference with their sovereign rights, rejected the idea of „compulsory jurisdiction (optional clause)‟.

29

Declaration of compulsory jurisdiction clause can be an indicator of the law respecting nature of states. The situation concerning the optional clause is no brighter (Romano 2002a: 545). A court would be effective only when a state believes that the particular court served its interest or it would deliver judgment on the basis of law. Submission of declaration of optional clause shows belief and faith in the Court although, judge Oda doubts, whether a mere appeal for wider acceptance of compulsory jurisdiction of the Court can achieve anything concrete (Oda 2000: 264). Initially out of 55 UN members 23 made optional clause declaration. In the Figure 6, the trend decade wise is shown. This denies any positive link between increase in UN membership and optional clause declaratory states. In fact increase in UN membership did not lead to increase in the acceptance of optional clause. A study shows that in relative terms, developed countries seem to be more inclined to accept the Court‟s compulsory jurisdiction than developing countries and at present three fourths of the declarations have been made with reservations (Romano 2002a: 546,547). During the period of first 14 years, when the case filing rate was high, the optional clause accepting countries were increased rapidly. During „the second phase‟ (1960 to 1980) increase was negligible.

30

Figure 2.6: Comparative Trend Graph showing no corresponding link between UN member and Number of states declared Compulsory Jurisdiction 180 160 140 UN Members

120 100 80 60

Number of States Declared Compulsory Jurisdiction

40 20 0 1946

1955

1965

1975

1985

Source of data Romano (2002a: 546)

The less powerful states see some advantage in accepting compulsory jurisdiction, thereby gaining the modicum of equality with other nations of world (Scott and Carr 1987: 58). Its defenders justify in terms of the necessity to make conditions for the „rule of law‟ in international relations (Owada 1971). Also evident is the reluctance on the part of those countries who deposited declaration on optional clause but lost interest in renewing it on expiry. Thailand is an apt example, France actively terminated its declaration on 2 January 1974, USA withdrew its declaration on 8 October 1985.The first three examples are important to understand why countries withdrew their declaration in the face of an adverse development in a particular case. Non-renewal by Thailand of declaration was probably because the decision on Temple of Preah Vihear case was not in its favor. France and the USA followed a more impolite way and withdrew their declaration after the Nuclear Test case and Military and Para military Activities in and against Nicaragua cases respectively. In both cases France and the USA were on backfoot. In contrast, in earlier case Iran terminated its acceptance of the 'compulsory 31

jurisdiction' after the proceeding of 'Anglo-Iranian Oil' case although the Court endorsed Iran‟s objection in the preliminary stage. There is a basic difference between the acts of Iran and above indicated developed countries and Thailand, these developed countries and Thailand terminated their declarations because of the adverse judgments or conditions but Iran terminated its declaration in the fear of further cases although the Court accepted the Iranian view in the case. It indicates that the probable reasons for lack of confidence in the Court are quite different. It indicates that declaration of optional clause is not merely demonstrating of true willingness of a state to settle a dispute (Oda 2000: 49). Earlier it was said that the Third World had no confidence in the Court. But with the above examples, it is clear that the Western world no longer has confidence in the Court's, capability to protect their partisan interests (Abi-Saab 1996: 6). The trends in regard to declaring optional clause or accepting compulsory jurisdiction show that at the beginning about 40 per cent of member countries have accepted the compulsory jurisdiction of the Court. This ratio goes down to 30 per cent at the end of cold-war. By comparison, of the fifty-nine states which had accepted the jurisdiction of the Permanent Court of International Justice, forty (67 per cent) had accepted its compulsory jurisdiction. This is certainly an impressive contrast in attitudes (Gross 1986: 574). Another interesting aspect pertains to the prevalence of the different legal systems. As pointed out by experts, states with civil law systems are more likely to accept the compulsory jurisdiction of the ICJ than those with common law or Islamic law systems (Powell and Mitchell 2007: 404). Similarities with the Court‟s legal practices may contribute to positive perceptions in the state about the Court. Powell and Mitchell (2007) provide evidence that civil law system is more similar to ICJ procedures than common law or Islamic law system. Thus civil law states can correlate their bargaining strategies and generate clear focal points for coordination through the ICJ more easily than common law or Islamic law states(Powell and Mitchell 2007: 398). The ICJ does not follow the rule of precedent (stare decisis) of common law system. The other principles followed by ICJ such as pacta sunt survenda, bonafides contracting etc. 32

are more similar with civil law system than common law or Islamic law (Powell and Mitchell 2007). It results in helpful distinction among countries advancing to different legal systems explaining the failure of the Court to accommodate the traditions of common law system. Most of Islamic countries keep them away from the reach of the ICJ for this reason. This could be called a different type of „the clash of civilizations‟ that might have affected the Court‟s prestige and performance.6 In the first phase (1947-1960) the Court made an effort to be active in its proceedings. The Court delivered a total of 115 orders, 22 judgments and 11 advisory opinions during this phase. It looks like a very substantive feature of the Court. But out of 115 orders 97orders were for either fixing limits (62 times)

or extension of time limit (53 times).

Eleven other orders were connected to removal of a case from the list. Hence, out of 115 orders 108 orders were not very substantive. As noted already, the second phase is dark phase of the Court's case docket. In the third phase the Court gained its momentum again. Use of „comparative method' to analyse this data of case docket with that of the Permanent Court of Justice (PCIJ), may yield interesting aspects. The comparison of the two would be apt because ICJ is known as a continuation of PCIJ (Cassel 2004). The structure and functions of the both courts are largely similar and no other court is very much similar to compare. The problem of other international courts is the subject matter of jurisdiction which is more specific but both the PCIJ and ICJ have general kind of jurisdiction. Between 1922 and 1940 the PCIJ dealt with 36 contentious cases between States, and delivered 27 advisory opinions.7 Interestingly, its last seven years were not productive may be because of some external political tension among nations and financial crisis. Prima facie observations demonstrate in both cases (ICJ and PCIJ) robustness of external factors in their impact on the court. Whereas the average ratio was 2 cases filed per year in PCIJ, this ratio was 1.4 for ICJ during the cold-war period. Significantly, one should

6 Generally Samuel P. Huntington indicates differences among civilizations are differentiated from each other by history, language, culture, tradition, and, most important, religion. 7 On the basis of data available at http://www.worldcourts.com/pcij/eng/statistics.htm

33

take into account the low level of membership of PCIJ as compared to ICJ. The numbers of contentious cases referred to the Permanent Court dealt between the two World Wars were markedly less. In fact, in a world full of international legal disputes between States, the number of cases submitted to the Court was too low (Schwebel 1994: 6). The major failure appears to be on the plane of advisory opinions. The ratio stood at 1.5 and 0.46 respectively for PCIJ and ICJ. This whole picture creates a clear view of underutilization of ICJ. In one sense the capacity for advisory opinion was extremely underutilized. The Permanent Court issued 137 Orders during 1922-1940 whereas the International Court issued 235 Orders of which 180 are related solely to the fixing or extending of time limit. In this logic PCIJ issued more than seven orders per year and ICJ issued more than five orders per year. But the ratio of substantive order is relatively low in ICJ than PCIJ. Underutilization of the ICJ is attributable to both internal and external factors such as damaged internal organization, low pressure of time and cold-war climate (Elkind 1984; Eyffinger 1996; Goldsmith and Posner 2005; Jainis1987; McWhinney 1991; Oduntan 1999; Posner 2004; Scott and Carr 1987). These categories of factors are generally under control of internal structure and can be changed more easily than external factors for example – general procedure, case time consumption, independent behavior of judges, general rules and regulations, law applied by court etc. It is not necessary that all these factors can be changed by the court itself but somehow an organization can deal with these factors. On other hand external factors are generally beyond the control of any organized entity. These factors can be influenced only with the help of sovereign powers in international system for example membership of Statute, political tensions, area of domestic jurisdiction, polarization in international politics, hegemonic power system etc. The processes of international adjudication particularly are under-used. At the same time, one must bear in mind that there are not thousands or of potential litigants before the Court (Schewebel 1994). Only States can be parties to contentious cases, and number of countries is limited in the world.

34

As may be drawn from the above analysis the ideological divide and polarization of countries in two blocs during the cold-war has a significant impact on the Court performance. In this situation different ideologies formulate opposite actions without regard for categorical reasoning. This condition created often entrenchment for a proxy war and organizations became a tool in the hand of states. The size of docket and who will be the applicant or respondent decided on the situation of the international power politics. The international power balance certainly plays an important role by which we have seen that USA and its allies filed several cases against USSR and its allies that indicated nothing but the shift of battle field to the judicial arena. There was no specific battle ground in the cold-war period so these blocs used ICJ as one of battle grounds. The significant point is that decision to go on litigation is much political issue than technical. This emerges from the fact that throughout the Cold-war no dispute was ever litigated before the Court between socialist (Soviet bloc) countries, nor between socialist and developing countries. According to the Charter, ICJ is a principal organ of UN. It means a political organ is superior in hierarchy and the judicial organ is subordinate. Schwebel (1994) opines that the Court is either judicial or an organ of the United Nations; the two attributes cannot invariably be altogether consistent. On the other hand Rosenne asserts that in practice the Charter and the Statute are to be read as one instrument and it does not mean that there is any subordinate status in the Statute in relation to the Charter (Rosenne 1965: 68). He presents the example of Corfu Channel case where a joint separate opinion of seven out of the 15 judges of the Court declined to regard the Charter, particularly Article 36 (3), as affecting the jurisdiction of the Court, when viewed in the light of the Statute. In addition in the time of decline of case docket the Court tried to ease the procedural problems. This time period and condition of underperformance opened the way for relook at existing rules. The Court adopted the new rules in accordance with Article 30 of Statute „for carrying out its functions‟, on 14 April 1978 and it entered in the force on

35

1July 1978. These rules provided first time the constitution of ad hoc chambers. In international system “third phase” was a time of evolution of other adjudicatory bodies because the Court decline and ineffectiveness.

36

Chapter III

CONTENTIOUS CASES AT THE WORLD COURT, 1990-2011

The present chapter attempts to examine contentious cases and disputes brought by the states to the World Court since the end of the Cold-War. After attempting an overview of the number and matters of the cases in the period, the discussion identifies two time spars in the post-Cold War Years, for convenience sake. Whereas in the first phase (19902000), the cases were predominantly about territorial and maritime boundary brought by the both developing and developed countries, in the second phase (2001-2011) one could see new type of cases such as human rights violations, diplomatic immunities and exploitation of natural resources. An Overview of State Parties At the end of cold war, 159 Member States of the United Nations (UN) became the parties to the Statute the Court. Besides these, member countries of the UN, Liechtenstein, Nauru, San Marino and Switzerland also agreed to become parties. Out of these 163 countries, 51 States have made declarations of compulsory jurisdiction. As of 2012, 193 member states of United Nations are parties to the Statute of the Court, while 67 States have made a declaration recognizing compulsory jurisdiction of the Court under provision of Article 36, paragraphs 2 and 5 of the Statute. The ratio of the countries recognizing compulsory jurisdiction and rest of member states is not dissimilar, although in post-cold war years it has increased marginally (.45 in 1990, and .53 in 2012) (see Figure 1). Moreover, most of states made declaration with a wide variety of reservations. Out of 67 declarations only 11 states(Paraguay, Uruguay, Dominican Republic, Haiti, Costa

Rica,

Austria,

Guinea-Bissau,

Cameroon,

Georgia,

Luxembourg,

and

Commonwealth of Dominica), recognized court‟s compulsory jurisdiction, without any reservation (Map 1). 37

Figure 3.1: Number of Countries that have or have not accepted Compulsory Jurisdiction

100% 90%

51

80%

67

70% 60%

Countries Accepted Compulsory Jurisdiction

50% 40%

112

30%

126

Countries not accepted Compulsory Jurisdiction

20% 10% 0% As in 1990

As in 2012

A close scrutiny of the list of the contentious concerned shows that many parts of the world are outside the scope of the compulsory jurisdiction of the Court. The Arab countries, except Egypt, have not recognized the compulsory jurisdiction clause. Only 5 Asian states (India, Pakistan, Cambodia, Philippines and Japan) recognize compulsory jurisdiction of the Court with reservations (Map 1). Cyprus and Japan accepted the „optional clause‟ respectively in 2002 and 2007. As for other regions, 23 European, 21 African and 14 Latin-Central American and Caribbean states have accepted the compulsory jurisdiction of the Court. Eight African, 13 European, and 4 Latin-Central American and Caribbean states accepted compulsory clause in post-cold war years. At present, there are some 300 multilateral and bilateral conventions which have provisions to allow the World Court jurisdiction on matters of the interpretation of the provisions therein (ICJ Report 2011: 29). In the post-Cold War period more than thirty

38

new treaties allowed the Court‟s jurisdiction. Less than ten percent (three treaties) 8 of these new treaties are bilateral and the rest are multilateral. Case Docket The docket of contentious cases has been comparatively large in post-cold war years than in the Cold-War period. Case docket of nearly 44 years of the Cold-War consisted of 61 contentious cases, as against 64 during 23 years since the end of the Cold-War in 1989 (Figure 2). It indicates that the rate of cases filed in the Court more than doubled during post-cold war period. It may be pointed out that this ratio is not as high as it appears in term of the increase of the States in post-cold war period. Presently, all 193 member states of the United Nations are entitled to appear before the Court; besides these nonmember states can also accept Court‟s statute. At the time of establishment of the Court UN membership was as low as 51. All the members of the United Nation are signatory to the statute of the International Court of Justice which is 'integral part‟ of United Nations Charter therefore they are entitled to appear before the Court. This analysis points out that the eligible parties before the Court increased by four times whereas the number of case filed increased only two-fold. The increase in membership indicates the capability to „access‟ the Court but it does not necessarily mean active and „willing‟ cooperation of states. For only submitting a case before the Court as applicant under the statute or under special agreement shows the willingness of the state to participate in the judicial process of the Court.

8

Treaty of mutual assistance in criminal matters (Art.21, para.3) Australia/Switzerland (1991); Agreement of Management and Co-operation (Art.9) Senegal/Guinea-Bissau (1993); Interim Accord (Art. 21, para. 2) 1995 Greece/ The former Yugoslav Republic of Macedonia.

39

Figure 3.2: Variance in the Number of States that Accepted the Statute and the Number of Contentious Cases 250

193

200 163 150

Number of Contentious Cases

100 61

64

50

States Entitled to Appear before Court

0 At the end of Cold War (194689)

At the end of 2011 (1989-11)

The case docket during the post-Cold War years can be divided into two parts. The first part refers to the full 11 years up to 2000 where the Court‟s case docket contains 36 new entries, and in the next 11 years (2001-11) 28 new cases. Year by year distribution of the new case entry in „General List‟ is widely scattered from no case in 1997 and 2007 to 17 new entries in 1999 but trend line during 2001-11 shows a static situation in new case entry (see Figure 3b). The first phase shows a scattered outlook because of 17 new entries in year 1999. These 17 entries include 10 cases of single issue of „legality of use of force‟ and all these cases were filed by Yugoslavia (name changed as Serbia and Montenegro). When all these 10 cases are put together as one case a picture similar to the second phase emerges (Figure 3c).

40

Figure 3.3a: New Case Entries in the General List, 1990-2000 18

17

16 14 12

New Case Entries in General List (1990-2000)

10 8

Linear (New Case Entries in General List (1990-2000))

6 4 2 0

4

4

3

2

1

2

1

1

1 0 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000

Figure 3.3b: New Case Entries (year wise), 2001-11 7 6

6

5 New Case Entries in General List (2001-11)

4 3

3

3

3

3

3

3

2 1 0

Linear (New Case Entries in General List (2001-11))

2 1

1

0 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Figure- 3.3c: New Case Entries, 1990-2000, Revised 9 8

8

7 New Case Entries in General List (Considering Legality of Use of Force 10 cases as one)

6 5 4

4

3

0

Linear (New Case Entries in General List (Considering Legality of Use of Force 10 cases as one))

3

2 1

4 2

1

2 1

1

1

0 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000

41

Figure 3.3d: New Case Entries, 1990-2011

8 6 4

New Case Entries in General List (1990-2011)

4 3

3 3 3 2

1

3

3 3

2 1

2 1

1 0

Linear (New Case Entries in General List (1990-2011))

1 1 0

1990 91 92 93 94 95 96 97 98 99 2000 1 2 3 4 5 6 7 8 9 10 11

9 8 7 6 5 4 3 2 1 0

Linear trend line of new case entries in post-cold war era shows a continual status quo as a pattern (when ten „legality of use of force‟ cases are considered as one). In broadspectrum, there is no big fluctuation in the number of new entries in the Court‟s „General List‟ (see Figure 4d). Per year new case entry average is approximately three (2.5 when all 10 „legality of use of force‟ cases as collapsed into one) in the post-Cold War period compared to 1.4 during the Cold War years. It demonstrates a clear indication in increase of new cases before the Court. Active Participants in the Court In the 22 years of post-cold war period 44 states participated as applicant in a total of 64 cases. In these cases more than one third has been filed by only five countries. Serbia and Montenegro and Democratic Republic of Congo filed respectively eight and six, Libyan Arab Jamahiriya, Yugoslavia and Nicaragua filed three cases each before the Court. All eight cases filed by Serbia and Montenegro deal with the single subject matter of Legality of Use of Force and the arguments in the all cases were more or less same.

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Table 3.1: Five Leading Case Initiators Name of State Serbia and Montenegro / Yugoslavia Democratic Republic of Congo

Number of cases filed before the World Court 10 6

Libyan Arab Jamahiriya

3

Yugoslavia

3

Nicaragua

3

Subject Matter of the Cases Legality of use of force(10) Armed Activity in Territory (4) Arrest Warrant case (1) Criminal Proceedings (1) Territorial Dispute (1) Aerial Incident (2) Legality of use of force (2) Revision of a previous judgment (1) Territorial and Maritime Dispute (2) Environment (1)

The cases filed by Democratic Republic of Congo and the Libyan Arab Jamahiriya make Africa a hot spot in the case docket. The other African countries that appeared before the Court as applicant are Guinea-Bissau, Benin, Niger, Djibouti, Cameroon, Burkina Faso, Chad, Botswana, Namibia, and Nigeria. A total of 16 cases were filed by the African states either as applicant under the compulsory jurisdiction or under special agreements in the 22 years of the post-Cold War period. On the other hand, 6 cases were filed by Asian States, and 26 cases by European countries and 13 cases by Latin-Central American and Caribbean states during the post-Cold War years (see Figure 4). In 12 out of 16 cases filed/initiated by African states both applicant and respondent belonged to Africa whereas remaining four cases were directed against developed countries (USA, UK, France and Belgium). Among the six cases initiated by Asian countries, 5 were against other developing Asian countries; only in one case the respondent was a developed country, the USA. Similarly, 19 cases, initiated by European countries, were directed against sister European states. In nine out of 13 cases initiated by South American and Caribbean states were respondents. In other words, in the bulk of cases, the applicants and respondents are countries of the same region.

43

Figure 3.4: Cases Initiated by Countries of different Regions

Latin-Central America and Caribbean Countries , 14

others, 2 Africa Africa, 17 Europe

Asia, 6

Asia Europe, 25

Latin-Central America and Caribbean Countries others

A region-wise analysis of state parties that accepted compulsory jurisdiction provides some useful pointers regarding importance of acceptance of compulsory jurisdiction to increase in case docket. The Asia seems to be most reluctant region to accept compulsory jurisdiction (only five countries accepted it). Impact of this reluctance of Asia can be seen in smallest case docket after cold-war period (six cases).This co-relationship applies to other regions as well. Europe, 25 cases were filed as against 24 states that accepted compulsory jurisdiction. Seventeen cases were filed from Africa with 21 states accepting compulsory jurisdiction, and Latin-Central America and Caribbean region has 14 cases with 14 states having accepted compulsory jurisdiction. It indicates a positive relation between above mentioned two variables. Therefore, increase in countries which accept compulsory jurisdiction possibly leads to the growth of the case docket of the Court. Figure 5 graphically makes the point.

44

Figure 3.5: Co-relating between the Case Docket and the Acceptance of Court’s Compulsory Jurisdiction. 30

25

25 23 21

20 17 15

14

14

Number of States accepted Compulsory Jurisdiction

10

5

Case Docket

6

5

0 Asia

Europe

Africa

Latin-Central America and Caribbean states

Interestingly, although Europe initiated a large number of cases before the Court but developing countries emerged prominently as applicants in the post-Cold War years. Very few developed countries (two by Germany, one each by Finland, Spain, New Zealand and Australia) have appeared in ten cases before the Court as applicants or under special agreements. About 15 percent cases (Ten cases out of Sixty Four) are filed by the developed countries either against a developing (one case) or developed country in the post-Cold War years.

45

Figure 3.6: Cases brought by the Developing and the Developed Countries, 1990-2011

Cases Initiated by Developed world, 10

Cases Initiated by Developing World, 54

As aptly noted by a leading jurist, „with the end of the cold-war, it became clearer than ever that the Court does not represent and is not at the service of any one segment of the international community, but rather of that community in its entirety‟ (Abi-Saab 1996: 6). While it is true that the participation of the Third World has increased, the participation by developed countries is on decline. Developed world initiated only one case against a developing country (see Figure 7a). The solitary case (in 2009, „Questions relating to the Obligation to Prosecute or Extradite’ (Belgium v. Senegal)) against developing by any developed state was filed by Belgium. This case related to the interpretation of „the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984‟. The applicant Belgium instituted proceedings against Senegal in 2009, seeking extradition of former President of the Republic of Chad Mr. Habré, who had been living in exile since 1990, on the charges of crime against humanity. The Court decided

46

that 'Senegal must take without further delay the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it does not extradite'.9 Figure 3.7a: Case brought against Developing Countries

35 30 25 20 15

31

4

10 13

5

Cases against Developing World by Developed World

During the Cold-War

1 In post Cold-War

0

Cases against Developing World by Developing World

In the post-Cold War period the developing countries have initiated proceedings mostly against other developing country. This scenario shows the increase of confidence of developing countries in the Court. Unlike the developed world, which becomes less visible as applicants before the Court, the developing countries showed demonstrable faith in the Court, as evident from the statistics for the 22 years after the Cold-War. They filed cases against sister Third World countries as also developed countries. Out of total 64 cases one third (23 cases) cases

9 Judgment on merits 20th July 2012, page 39. Available cij.org/docket/index.php?p1=3&p2=3&k=5e&case=144&code=bs&p3=4

at

http://www.icj-

47

were filed by third world were against developed world (see Figure 7b). Figure 3.7b: Cases brought against Developed Countries 35 30 25 20

4 23

Cases against Developed World by Developing World

15 22

10 5

Cases against Developed World by Developed World

9

0 In post-Cold War

During ColdWar

Raising objections regarding the Court‟s jurisdiction has been a noticeable tactical and procedural tool. In the post-Cold War years preliminary objections against the Court‟s jurisdiction were raised in at least in 18 cases. Apart from this, the question of jurisdiction or admissibility has also been raised in 8 cases excluding proceedings for the indication of provisional measures, in the post-Cold War years. (a) Territorial and Maritime Boundary Disputes during the first phase (1990-2000) Boundary or territory disputes between the newly decolonized states were growing with more frequency and intensity and which remains the classic area of adjudication for the Court in post-cold war years (Patel 2007: 99). About one fourth contentious cases of case docket in post-cold war years are the disputes over territorial or maritime boundaries. The docket of first 11 years contains 9 cases concerning issue of territorial boundary or

48

maritime delimitation. Out of those nine cases four (two from Africa10, one from Europe and one from Asia11) were brought before the court through a special agreement. Both applicant and respondent states have taken support of compulsory jurisdiction clause in four other cases (two from Africa, and 2 Europe). Another dispute of Asia region12 was relatively complex because both applicant and respondent neither accepted the compulsory jurisdiction nor did they sign any special agreement. The Court found jurisdiction in this case on the basis of some letters and documents exchanged between the disputant countries. (i) Libyan/Chad Dispute The very first case after end of cold war (in 1990) dealt with territorial dispute. This was filed with the two successive notifications of the Special Agreement by the Libyan Arab Jamahiriya and the Republic of Chad. Interestingly, the said agreement declared that on the basis of the resolutions of the Organization of African Unity (OAU), urging both countries to settle the dispute through resort to the Court. In essence, Chad claimed that existence of boundary with Libya and requested the Court to validate the exiting boundary. On the contrary, Libya questioned the claim about existing boundary and urged the Court to securitize the validity of such a claim by Chad. Considering many historical facts and treaties regarding this territory, the Court determined the course of that boundary between Libya and Chad in accordance with the „Treaty of Friendship and Good Neighbourliness‟ of 10 August 1955 between France and Libya. This case took about three and a half year to reach a conclusion (Since 31st August 1990 to 3rd February 1994). The Court issued three orders regarding fixing of time-limit to submit memorials, counter-memorials and replies and delivered one final judgment. Within the time period of one month (14th June-14th July 1993), the Court held 19 public sittings for oral proceedings under the presidency of Sir Robert Jennings. Judge Guillaume twice asked questions for written replies from Libya. 10

Territorial Dispute (Libyan Arab Jamahiriya/Chad) (1990) and Kasikili/Sedudu Island Botswana/ Namibia) (1996). 11 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (1998) 12 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)

49

(ii) Guinea-Bissau v. Senegal Another case of African continent (Maritime Delimitation between Guinea-Bissau and Senegal) did not reach the final stage because both applicant and respondents agreed to discontinue proceedings and the Court ordered removal of the case from the list. Even though, the Court gave only one final order for the removal of the case from the list but it had taken more than four and a half years to come up with this conclusion. It was so because at a meeting held by the President with the representatives of the Parties, they requested that no time-limit be fixed for the initial pleadings for six months‟ time in the case as both parties were trying to negotiate. At their request, parties were granted further extensions of time many times to facilitate negotiations. Finally, at a meeting held by the President with the representatives of the Parties on November 1995 confirmed that „his Government, by virtue of the agreement reached by the two Parties on the disputed zone, had decided to discontinue the proceedings‟ (ICJ Report 1995: 425). (iii) Qatar v. Bahrain The third territorial and maritime boundary delimitation case turned out to be the second longest running territorial dispute in the Court‟s history. It was initiated by Qatar against Bahrain in July 1991, claiming „sovereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the delimitation of the maritime areas of the two States‟. Neither Qatar nor Bahrain had declared the acceptance of compulsory jurisdiction therefore Bahrain raised preliminary objections claiming lack of jurisdiction of the Court. But the Court found that „the exchanges of letters between the King of Saudi Arabia and the Amir of Qatar dated 19 and 21 December 1987, and between the King of Saudi Arabia and the Amir of Bahrain dated 19 and 26 December 1987, and the document headed „Minutes‟ and signed at Doha on 25 December 1990 by the Ministers for Foreign Affairs of Bahrain, Qatar and Saudi Arabia, are international agreements creating rights and obligations for the Parties‟. Further, the Court clarified that „the terms of those agreements the Parties have undertaken to submit to the Court the whole of the

50

dispute between them, as circumscribed by the text proposed by Bahrain to Qatar in October 1988, and accepted by Qatar in December 1990, referred to in the 1990 Doha Minutes as the „Bahraini formula‟‟. Finally, in March 2001, the Court ruled that, „the Hawar Islands were determined to Bahrain, while Qatar retained sovereignty over Zubarah.‟ The court also ruled on ownership of the minor islands and shoals and set out the maritime boundary between the two states. The Court cited the PCIJ decision to suggest that Bahrain‟s limited activities on a disputed island were adequate to permit it to assert its sovereignty. J. E. Peterson (2011: 21-49) indicates the positive impact of this denouement that „provided a dramatic and encouraging solution to a seemingly permanent and intractable problem, the solution of their common border issues transformed the relationship between Bahrain and Qatar very positively.‟ Further it provided impetus for plans to construct a thirty-kilometer causeway between the two countries that would create the longest bridge in the world. This second longest pending case of took nearly a decade for a final outcome (19912001). On the questions of jurisdiction and/or admissibility, the Court had taken about three years. After the completion of written proceedings in December 1992, the Court concluded its oral proceedings in 8 public sittings in 1994. The Court delivered 2 judgments on the question of the admissibility and jurisdiction, in 1994 and 1995. Written Proceedings of the merit phase were completed took nearly two and a half years and were completed in 1999. One year after completion of written proceedings the Court held 21 public sitting for oral proceedings. Within nine months after the end of oral proceedings the Court delivered final judgment. In two orders the Court extended previously fixed time limit twice (both in merit phase, once for applicant and once for respondent). Another five orders were concerned with the fixing of time limit for different written proceedings. In the first two judgments on the questions of jurisdiction and admissibility, the five judges expressed their dissenting opinion. Judge Oda delivered dissenting opinion in both stages but in final judgment he delivered separate judgment agreeing with majority opinion. Judge Torres Bernárdez, Bedjaoui, Ranjeva and Koroma dissented with majority judgment in the merit phase. 51

(iv) Hungary / Slovakia The first case of European region in this category was instituted through the means of special agreement by Hungary and Slovakia in 1993. This case concerning GabcíkovoNagymaros Dam is interesting in the sense that the Agents of the Parties jointly requested the Court for a visit to the disputed region. The Court decided „to accept the invitation to exercise its functions with regard to the obtaining of evidence at a place to which the case relates and, to that end, to adopt the arrangements proposed by the Parties‟ (ICJ Report 1997: 14). In a judgment the Court declared that „Hungary‟s suspension of work on the project was illegal‟. The Court further noted that both parties should consider this project as means of energy production, flood control, and environment protection. Slovakia deeply interested in the completion of the project laid the responsibility to complete the project on Hungary. When Hungarian government announced its desire to build the dam, there were widespread protests were staged in front of parliament in March 1998(Heiko 2004: 8). As a result, the Hungarian government put off its decision pending elections. The newly elected government was equally reluctant on the issue. Finally in 1998 Slovakia filed a request for an additional judgment in the case concerning GabcíkovoNagymaros project because of unwillingness of Hungary to implement the earlier Judgment. Since then, this case is pending in the Courts general list. (v) Cameroon v. Nigeria On 29 March 1994, the Government of the Republic of Cameroon filed an application instituting proceedings against the Government of the Federal Republic of Nigeria in respect of a dispute on „the question of sovereignty over the Bakassi Peninsula.‟ Although both states accepted compulsory jurisdiction without any reservation; although Nigeria made it clear in its declaration that it was accepting on the condition of reciprocity (ICJ Report 1996: 20). This case was different, from above mentioned cases, in the sense that a third country (Equatorial Guinea) intervened in the case pursuant to Article 62 of the Statute of the 52

Court and Article 81 of the Rules of the Court. Equatorial Guinea made clear that it has no intention of intervening in the proceedings. Equatorial Guinea was concerned only with the maritime boundary aspects of the case before the Court (ICJ Report 1999: 1031). Further, Equatorial Guinea also clarified that it did not wish to become a party to the case. Neither of the Parties objected to the Application by Equatorial Guinea for permission to intervene (ICJ Report 1999: 1034). The Court unanimously permitted Equatorial Guinea to intervene in the case. The process of the case can be divided in four parts: provisional measures, preliminary objections, application for permission to intervene, and merits and counter-claims. In one important request for provisional measure, the Cameroon asked the Court to direct withdrawal of armed forces of the Parties to the position they were occupying before the Nigerian armed attack of 3 February 1996‟ (ICJ Report 1996: 18). This issue became important when the Security Council called upon the parties to respect the ceasefire they agreed to and to refrain from further violence and the Secretary-General of the United Nations had proposed to dispatch a fact-finding mission into the Bakassi Peninsula (ICJ Reports 1996: 23). The Court took more than one year to dispose off the request with the help of three public sittings of oral proceedings and allowed the request of Cameroon. There was no dissenting opinion in the stage of provisional measure. The Court has taken more than two and a half years with 6 public sitting for oral proceedings to decide preliminary objections of Nigeria. But the decision for the permission to Equatorial Guinea intervene was decided in less than four months. Final decision on the merits was delivered after a long oral proceeding of 26 public sittings. The Court, citing the Anglo-German Agreement of 11 March 1913, held that sovereignty over Bakassi lies with Cameroon. Accordingly, the Court advised Nigeria to „expeditiously and without condition withdraw its administration and military or police forces from the area of Lake Chad falling within Cameroonian sovereignty and from the Bakassi peninsula. The Court ruling on the Bakassi dispute was dubbed by Nigerians as politically biased, suspecting the role of Britain and France in this case (Akinterinwa 2002). Again, the Court‟s ruling on the Bakassi failed to resolve the contradiction it created between sovereignty over territory and people. According to the Court‟s ruling, 53

Cameroon had sovereignty over the territory but not over the people who were Nigerians by descendance. Thirdly, the Court based its finding on the treaties signed but not ratified by both parties(The Declaration of Yaounde I of 14 August 1970; Yaounde II of 4th April, 1971; Declaration of Lagos of 21 June 1971; Declaration of Kano of 1 September, 1974 and Declaration of Maroua of 1June, 1975). (vi) Spain v. Canada In its first case, Spain instituted proceedings against Canada in March 1995 in respect of a dispute relating to the amendment in the Canadian Coastal Fisheries Protection Act that claimed jurisdiction over ships flying a foreign flag on the high seas, outside Canada's 200-mile Exclusive Economic Zone. Both the applicant and the respondent had accepted compulsory jurisdiction of the Court under Article 36 Para 2 of the Statute. But Canada challenged the Court's jurisdiction, on the basis of a reservation made by its declaration of compulsory jurisdiction that „disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO (The Northwest Atlantic Fisheries Organization) Regulatory Area, as defined in the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures.‟ Spain argued on the other hand, that „Canada's reservation is invalid or inoperative by reason of incompatibility with the Court's Statute, the Charter of the United Nations and with international law‟ (ICJ Report 1998: 451). Spain further contended that „the contra proferentem rule, under which, when a text is ambiguous, it must be construed against the party who drafted it, applied in particular to unilateral instruments such as declarations of acceptance of the compulsory jurisdiction of the Court and the reservations which they contained. Finally, Spain emphasized that a reservation to the acceptance of the Court's jurisdiction must be interpreted so as to be in conformity with, rather than contrary to, the Statute of the Court, the Charter of the United Nations and general international law‟ (ICJ Report 1998: 452). Both parties accepted that there is a dispute between them but each party described the dispute in different way. On the one hand Spain has regarded the dispute relating „to 54

Canada's lack of right to practice jurisdiction on the high seas, and the non-opposability of its amended Coastal Fisheries Protection legislation and regulations to third States, including Spain.‟ On the other hand Canada stated that „the dispute concerns the adoption of measures for the conservation and management of fisheries stocks with respect to vessels fishing in the NAFO Regulatory Area and their enforcement‟(ICJ Report 1998: 446). On the question of jurisdiction the Court stated that every declaration „must be interpreted as it stands, having regard to the words actually used‟ (ICJ Report 1998: 454; ICJ Report 1952: 105) and „the Court cannot base itself on a purely grammatical interpretation of the text and it must seek the interpretation which is in harmony with a natural and reasonable way of reading the text‟ (ICJ Report 1998: 454; ICJ Report 1952: 104). The Court rejected argument of the contra proferentem rule and stated that „this rule has no role to play in this case in interpreting the reservation contained in the unilateral declaration made by Canada under Article 36, paragraph 2, of the Statute‟ (ICJ Report 1998: 455). Finally, the Court noted that, „in its Counter-Memorial of February 1996, Canada maintained that any dispute with Spain had been settled, since the filing of the Application, by the agreement concluded on 20 April 1995 between the European Community and Canada, and that the Spanish submissions were now without object.‟(ICJ Report 1998: 467- 68). This issue had taken more than three years and 8 months and six public sitting of oral proceedings to reach the conclusion that the Court has no jurisdiction on the dispute. The Court had issued two orders and delivered single judgment to finalize the issue. (vii) Two other cases In 1996 through the means of special agreement Botswana and Namibia filed a case regarding the boundary around KasikililSedudu Island. According to the agreement, the court was asked „to determine, the boundary between Namibia and Botswana around KasikiliI Sedudu Island and the legal status of the island, on the basis of the AngloGerman Treaty (regarding the spheres of influence of the two countries in Africa) of 1

55

July 1890 and the rules and principles of international law‟. The Court finalized the boundaries in three and a half years‟ time. The Court held 13 public sittings of oral proceedings. Several written questions were also asked by the judges of the Court. Even though this case had not involved any provisional measure, preliminary objections or any question of jurisdiction but the time taken by the Court was not short. The Case „Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)‟ is not directly related with the delimitation of the boundary but it decided the question of authority on specific area. This case also brought before the Court in 1998 through the means of special agreement between Indonesia and Malaysia (Besides this Malaysia brought another cases through special agreement with Singapore in 2003). In an incidental move the Philippines filed an application for permission to intervene in the case under Article 62 of the Statute of the Court, in 2001. The Court, in pursuance of written proceedings and four public sittings of oral proceedings within the time frame of seven months, did not grant permission to Philippines intervene in the case. The Court took more than 4 years (nine public sittings of oral proceedings) to finally delivers finding on the sovereignty over Pulau Ligitan and Pulau Sipadan in favor of Malaysia. The Latin American countries were new applicants to the Court. The first case, in postcold war period, was initiated by any Latin American country in 1998. In 1999 Nicaragua initiated second case of this region, regarding dispute of territory and maritime, against Honduras. Even though the final written proceedings were completed in 2003, the Court took more four years to pronounce its decision. This case was concluded in about 8 years and the Court held 14 public sittings for the oral proceedings. Table 3.2: Disputes over Boundary and Fisheries in the post-Cold War Years S.N. 1

Name of Case

2

Maritime Delimitation between Guinea-Bissau and Senegal (GuineaBissau v. Senegal) Maritime Delimitation and Territorial Questions between Qatar

3

Territorial Dispute (Libyan Arab Jamahiriya/Chad)

Number of Orders 3

Judgments

Time

1

1

0

7

3

31 August 1990 to 3 February 1994 (3 year 6 Month 3 days) 12 March 1991 to 8 November 1995 (4 years 7 Months 27 days) 8 July 1991 to 16 March 2001 (9 Years 8 Months 8

56

and Bahrain (Qatar v. Bahrain) Gabčíkovo-Nagymaros Project (Hungary/Slovakia)

3

1

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) Fisheries Jurisdiction (Spain v. Canada)

8

2

2

1

7

Kasikili/Sedudu (Botswana/Namibia)

Island

2

1

8

Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)

4

2

9

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) Territorial and Maritime Dispute (Nicaragua v. Colombia)

2

1

4

4

11

Frontier Dispute (Benin/Niger)

4

1

12

Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) Maritime Delimitation in the Black Sea (Romania v. Ukraine)

2

1

3

1

14

Pulp Mills on the River Uruguay (Argentina v. Uruguay)

4

1

15* 16*

Maritime Dispute (Peru v. Chile)* Frontier Dispute (Burkina Faso/Niger)* Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)

2 1

4* 5

6

10

13

17*

days) 2 July 1993 to 25 September 1997 (4 years 2 months 23 days) 29 March 1994 to 10 October 2002 (8 years 6 months 11 days) 28 March 1995 to 4 December 1998 (3 years 8 months 6 days ) 29 May 1996 to 13 December 1999 (3 years 6 months 14 days) 2 November 1998 to 17 December 2002 (3 years 1 month 15 days) 8 December 1999 to 8 October 2007 (7 years 10 months) 6 December 2001 to 19 November 2012 (11 years 11 months 13 days ) 3 May 2002 to 12 July 2005 (3 years 2 months 9 days) 24 July 2003 to 23 May 2008 (4 years 9 months 29 days) 16 September 2004 to 3 February 2009 (4 years 4 months 18 days) 4 May 2006 to 20 April 2010 (3 years 11 months 16 days) 16 January 2008 21 July 2010 21 December 2011

*Pending Case

(b) Boundary and other Disputes in the Second Phase, 2001-11 Eight cases were initiated by the states regarding territorial, boundary, fisheries and maritime disputes in the second phase, (2001-11) of post-cold war period. Three cases were initiated through the means of special agreements. 57

(i) Nicaragua v. Colombia The first case of second phase filed by Nicaragua against Colombia, in December 2001, was in respect of a dispute between the two States „over title to territory and maritime delimitation‟ in the western Caribbean (ICJ Report 2007: 835). It is the latest case which was finally decided by the Court in November 2012. It is the longest running case (took about 11 years) of this category in the history of the Court. A request for intervention was filed by Costa Rica but the Court did not find substance in the request. Decision on the request of Costa Rica divided the Court, out of 16 judges, 7 were in favor of Costa Rica‟s request, and the remaining 9 were against. Finally, Colombia was distressed as the Court upheld Nicaragua sovereignty. (ii) Benin / Niger The case regarding frontier dispute between Benin and Niger, fifth case of African region in post-cold war, was brought before the Court through special agreement in 2002. The significant matter of fact of this case was agreement of the parties seeking the formation of a chamber, under Article 26 of the Statute, for the deliberation of this case. This case, similar to other cases that instituted through the mean of special agreements, has taken comparatively less time to be disposed of finally. Presently institution of a „chamber‟ helped quick disposed of the dispute. The Court concluded the case, in 7 public sittings, in 3 years. (iii) Malaysia / Singapore In their second case, regarding sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge disputes by Malaysia and Singapore. The dispute was brought to the Court in 2003 by a special agreement. The Court decided that sovereignty over Pedra Branca/Pulau Batu Puteh belonged to the Republic of Singapore while sovereignty over Middle Rocks belonged to Malaysia (ICJ Report 2008: 101-02). The issue of South Ledge was not clearly specified and the Court observed that sovereignty belonged to the State in which the territorial waters are located (ICJ Report 2008: 102). In response to the decision foreign minister of Malaysia Datuk Seri Dr Rais Yatim said „although the ruling 58

by the ICJ at The Hague on May 23 was final and not subject to appeal, there was a specific provision in the court‟s rules that allowed for a judicial review of a case within 10 years if new evidence was adduced. As such, he said he had directed Wisma Putra (Ministry of Foreign Affairs, Malaysia) to trace the ancient letter written by British Governor William T. Butterworth to the Temenggong and Sultan of Johor seeking permission to build the Horsburgh Lighthouse on Batu Puteh.‟13 (iv) Romania v. Ukraine In third case came from the European region (concerning delimitation issue), in 2004 Romania filed an Application instituting proceedings against Ukraine concerning the delimitation of the continental shelf and the exclusive economic zones of Romania and Ukraine in the Black Sea (ICJ Report 2009: 64). Both applicant and respondent were not recognizing declaration accepting compulsory jurisdiction of the Court therefore Romania established jurisdiction of the Court on the provisions of paragraph 4 (h) 14 of the Additional Agreement constituted by an exchange of letters of 2 June 1997 between the Ministers for Foreign Affairs of Romania and Ukraine, and Article 2 of the Treaty on the Relations of Good Neighbourliness and Co-operation between Romania and Ukraine. The court found jurisdiction and concluded this case, unanimously, after 12 public sittings. Ukrainian President Viktor Yuschenko remarked that the ruling was „just and final‟ and hoped „the ruling would open new opportunities for further fruitful cooperation in all sectors of the bilateral cooperation between Ukraine and Romania.‟

14

Paragraph 4(h) „If these negotiations shall not determine the conclusion of the above-mentioned agreement in a reasonable period of time, but not later than 2 years since their initiation, the Government of Romania and the Government of Ukraine have agreed that the problem of delimitation of the continental shelf and the exclusive economic zones shall be solved by the UN International Court of Justice, at the request of any of the parties, provided that the Treaty on the regime of the State border between Romania and Ukraine has entered into force. However, should the International Court of Justice consider that the delay of the entering into force of the Treaty on the regime of the State border is the result of the other Party‟s fault, it may examine the request concerning the delimitation of the continental shelf and the exclusive economic zones before the entry into force of this Treaty‟ (ICJ Report 2009: 70-71).

59

(v) Argentina v. Uruguay The Pulp mill case is also concerned with the environment issues and filed by Argentine against Uruguay in 2006. In their application Argentina also raised the issues of the prevention of pollution and the protection of biodiversity and of fisheries (ICJ Report 2010: 28). Argentina also produced the video recording of the River Uruguay that was showing the environment loss because of the pulp mills. Uruguay, for its part, requested the Court to confirm its right „to continue operating the Botnia plant in conformity with the provisions of the Statute of the River Uruguay,1975‟ (ICJ Report 2010: 105). Argentina challenged the Uruguayan assertion under Article 80 of the Rules of Court. The Court found Uruguay‟s claim was without any practical significance, since Argentina‟s claims in relation to breaches by Uruguay of its substantive obligations and to the dismantling of the Orion (Botnia) mill have been rejected‟ (ICJ Report 2010: 105).

Table 3.2: Subject Matter of Other Cases

Judgments

Time Duration Public Sittings

Name of Case

Orders

S.N.

1

East Timor (Portugal v. Australia)

3

14

1

2

Passage through the Great Belt (Finland v. Denmark) Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) Oil Platforms (Islamic Republic of Iran v. United States of America) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia

3

6

0

8

10

1

8

10

9 11

3

4

5 6

Subject Matter

(Application to Final Judgment )

22 February 1991 to 30 June 1995 17 May 1991 to 29 July 1991 3 March 1992 to 27 February 1998

Human Rights (Selfdetermination)

1

3 March 1992 to27 February 1998

Aerial Incident

21

2

56

2

2 November 1992 to 6 November 2003 20 March 1993 to 26 February 2007

Aerial Incident

Human Rights

60

and Montenegro)

7 8

9 10

11 12 13 14* 15 16*

17 18 19

20 21 22

Gabčíkovo-Nagymaros Project (Hungary/Slovakia) Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case Vienna Convention on Consular Relations (Paraguay v. United States of America)

3

14

1

2 July 1993 to 25 September 1997 21 August 1995 to 22 September 1995

Environment, Territory Environment, Human Rights

1

3

0

4

3

0

3 April 1998 to 10 November 1998 (7 moths 7 days) 28 October 1998 to 25 March 1999

Consular Rights

Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon) Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) LaGrand (Germany v. United States of America)

0

1

1

6

10

3

28 December 1998 to 19 June 2012 2 March 1999 to 27 June 2001 (2 years 3 months 25 days) 23 June 1999 to 30 January 2001

Human Rights, Diplomatic rights Consular Obligations

2

6

1

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi) Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)*

3

0

0

5

19

1

23 June 1999 to 19 December 2005

Human Rights, Humanitarian Law

3

0

0

23 June 1999 to 30 January 2001

Human Rights, Humanitarian Law

7

6

1

2 July 1999 to 18 November 2008

Human Rights

Aerial Incident of 10 August 1999 (Pakistan v. India) Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina) Certain Property (Liechtenstein v. Germany)

1

4

1

Aerial Incident

5

10

1

0

4

1

21 September 1999 to 21 June 2000 17 October 2000 to 14 February 2002 24 April 2001 to 3 February 2003

2

4

1

Armed Activities on the Territory of the Congo (New Application : 2002) (Democratic Republic of the Congo v. Rwanda) Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute

2

8

1

1

5

1

1 June 2001 to 10 February 2005 28 May 2002 to 3 February 2006 10 September 2002 to 18 December 2003

Territory, Maritime

Human Rights, Humanitarian Law

Human Rights, Individual Rights Human Rights

Human Rights, Humanitarian Law Territorial

61

23 24 25 26 27 28* 29

30

31 32 33 34* 35 36* 37* 38*

(El Salvador/Honduras: Nicaragua intervening)(El Salvador v. Honduras) Avena and Other Mexican Nationals (Mexico v. United States of America)

3

10

1

Certain Criminal Proceedings in France (Republic of the Congo v. France) Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations (Commonwealth of Dominica v. Switzerland) Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) Aerial Herbicide Spraying (Ecuador v. Colombia)

9

4

0

2

7

1

1

0

0

1

7

Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America) Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece) Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)

1

Certain questions concerning diplomatic relations (Honduras v. Brazil) Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland) Whaling in the Antarctic (Australia v. Japan) Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand)

9 January 2003 to 31 March 2004 (1 year 2 months 22 days) 11 April 2003 to 16 November 2010 29 September 2005 to 13 July 2009 26 April 2006 to 9 June 2006

Consular Obligations

1

9 August 2006 to 4 June 2008 31 March 2008

Criminal Proceedings Environment, Human Right, Boundary

4

1

5 June 2008 19 January 2009

3

8

1

12 August 2008 to 1 April 2011

2

8

1

17 November 2008 to 5 December 2011

3

5

1

3

10

1

23 December 2008 to 3 February 2012 19 February 2009 to 20 July 2012

3

0

0

Diplomatic Rights

to

28 October 2009 to 3

Criminal Proceedings

Human Rights

Criminal Proceedings, Human Rights Diplomatic Relations

21 December 2009 to 5 April 2011 31 May 2010 18 November 2010

Environment,

28 April 2011

*Pending Case

62

Human Rights Related Cases (i) Legality of Use of Force The Post-Cold War years have been witness of diverse kinds disputes in the World Court. In 1999 the Federal Republic of Yugoslavia (name changed Serbia and Montenegro with effect from 4 February 2003) instituted 10 case of single issue of „Legality of Use of Force‟ claiming jurisdiction of the Court on the basis of Article IX of the „Convention on the Prevention and Punishment of the Crime of Genocide‟. Yugoslavia detailed the fact in application that (ICJ Report 1999: 917): The Government of…. Member States of NATO, took part in the acts of use of force against the Federal Republic of Yugoslavia by taking part in bombing targets in the Federal Republic of Yugoslavia. In bombing the Federal Republic of Yugoslavia military and civilian targets were attacked. Great number of people was killed, including a great many civilians. Residential houses came under attack. Numerous dwellings were destroyed. Enormous damage was caused to schools, hospitals, radio and television stations, cultural and health institutions and to places of worship. A large number of bridges, roads and railway lines were destroyed. Attacks on oil refineries and chemical plants have had serious environmental effects on cities, towns and villages in the Federal Republic of Yugoslavia. The use of weapons containing depleted uranium is having far-reaching consequences for human life. The above-mentioned acts are deliberately creating conditions calculated at the physical destruction of an ethnic group, in whole or in part.

Yugoslavia could not complain against NATO, because of proscription of cases against international organizations, hence, the result to separate cases against specific countries. Yugoslavia also requested for the provisional measures against the 10 respondents namely Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and the United States. In these cases the Court also considered the possibility to join the proceedings of General List Nos. 105, 106, 107, 108, 109, 110, 111 and 113 (these all cases are related with Legality of Use of Force). The Agent of Serbia and Montenegro indicated that his Government was in favor of a joining together all the proceedings in accordance with Article 47 of the Rules of Court but respondents opposed it. Yugoslavia called for provisional measures and need of provisional measures was vested in the Yugoslavia‟s assertion that (ICJ Report 1999: 920): since the onset of the bombing of its territory, and as a result thereof, about 1,000 civilians, including 19 children, have been killed and more than 4,500 have sustained serious injuries; that the lives of three million children are endangered; that hundreds of thousands of citizens have

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been exposed to poisonous gases; that about one million citizens are short of water supply; that about 500,000 workers have become jobless; that two million citizens have no means of livelihood and are unable to ensure minimum means of sustenance; and that the road and railway network has suffered extensive destruction: whereas, in its request for the indication of provisional measures. Yugoslavia also lists the targets alleged to have come under attack in the air strikes and describes in detail the damage alleged to have been inflicted upon them (bridges, railway lines and stations, roads and means of transport, airports, industry and trade, refineries and warehouses storing liquid raw materials and chemicals, agriculture, hospitals and health Care centers, schools, public buildings and housing facilities, infrastructure, telecommunications, cultural-historical monuments and religious shrines)‟

Yugoslavia further stated that: „If the proposed measure were not to be adopted, there will be new losses of human life, further physical and mental harm inflicted on the population of the FR of Yugoslavia, further destruction of civilian targets, heavy environmental pollution and further physical destruction of the people of Yugoslavia‟

Demand for provisional measures was rejected in all 10 cases after hearing the Parties. The Court stated that (ICJ Reports 1999: 774): request for provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such measures unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established.‟ the Court lacks prima facie jurisdiction to entertain Yugoslavia's Application; and whereas it cannot therefore indicate any provisional measure whatsoever in order to protect the rights invoked therein.

It is important to note that the requirement for satisfaction of the prima facie as does not appear either in the Statute of the Court or its Rules. The Article 41 of the Court Statute clearly states that 'The Court shall have the power to indicate, if it considers the circumstances so require, any provisional measures which ought to be taken to preserve rights of either party'. But the traditional separation between fact and value and between form and content reflects here in a strong measure. This „binary thinking‟ such as fact/value, form/content, inside/outside, idealism/realism, political/legal, and political/humanitarian is a pre human rights positivistic thinking which is devoid of social dimension of human rights and human dignity (Warner 2001: 201). In this circumstance, the Court missed a big opportunity to create a new dimension of 64

human rights and humanitarian laws. Finality of the jurisdiction on a case cannot be an excuse to preclude action on the question of the provisional measure when the condition on ground was unbearable for human beings. This was ironic, as the Court was fully aware of the current situation. In the Court‟s own words (ICJ Report 1999: 922-23): the Court is deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background of the present dispute, and with the continuing loss of life and human suffering in al1 parts of Yugoslavia.‟ the Court is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter and the Statute of the Court. the Court deems it necessary to emphasize that al1 parties appearing before it must act in conformity with their obligations under the United Nations Charter and other rules of international law, including humanitarian law.

The Court has found that Serbia and Montenegro was not a party to the Statute on the date of the filing of its Application instituting proceedings in this case, and consequently the Court was not open to it at that time under Article 35, paragraph 1, of the Statute. So the Court, unanimously, found that it had no jurisdiction to entertain the claims made in the application filed by Serbia and Montenegro on 29 April 1999. The Court acknowledges the condition of human tragedy, loss of life and other suffering of the people of the region but could not take any substantial action on the basis of lack of jurisdiction. The Court thus ignored the customary humanitarian law and principal of jus cogens. In the orders of 2 June 1999 the Court decided to remove the cases against Spain and the United States from the List because „one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction‟ (ICJ Report 1995: 101; ICJ Report 1999:) and the Court under its Statute, does not automatically have jurisdiction over legal disputes between States parties to that Statute. On the jurisdictional issue the Court decided that the US has made reservation in the Genocide Convention and jurisdiction on Spain was not in pursuance with Article 38 paragraph 5 of the Rules of the Court.

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In short the Court followed very conservative and rigid ideology of strict judicial restraint. These cases presented Yugoslavia/ Serbia and Montenegro as the first country in the post-cold war period to be the victim of „might is right‟ (Bedi 2007). This case is an example of alleged unauthorized and indiscriminate bombing on people of Yugoslavia and premises by the NATO countries. Common to many arguments on jurisdiction in all the cases was Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Besides the International Covenant on Civil and Political Rights (1966) and of the International Covenant on Economic, Social and Cultural Rights (1966) were also cited. The Court in these cases declined to take any provisional measures. The two major reasons were, firstly that in the two cases (against Spain and USA) it did not find jurisdiction of the Court and secondly, that in the other eight cases it had no prima facie jurisdiction as per the procedure of the Court which was a precondition for indication of provisional measures. In brief human rights in Yugoslavia were violated by ten NATO States and the Yugoslavian government likewise violated the human rights. At the provisional measures stage the Court had the authority to take action regarding the required measures to stop the violation of human rights by any or all the parties involved. As judge Koroma of the Court considered the Serb complaint belonged to the category of „the most serious cases to come before the Court for injunctive relief‟ (ICJ Report 1999: 142). (ii) Armed Activities In 1999 the Democratic Republic of the Congo filed three application instituting proceedings against Uganda, Rwanda and Burundi in respect of a dispute concerning „acts of armed aggression perpetrated by Uganda on the territory of the Democratic Republic of the Congo, in flagrant violation of the United Nations Charter and of the Charter of the Organization of African Unity.‟ But in a dramatic move the Congo discontinued the proceedings against Rwanda and Burundi citing Article 89, paragraph 2, of the Rules of Court, „reserve[d] the right to invoke subsequently new grounds of jurisdiction of the Court‟. The Congo did not refer any reason of withdrawing the cases. Further in 2002 Congo initiated a new case against Rwanda. This time Congo filed the 66

case in respect of a dispute concerning „massive, serious and flagrant violations of human rights and of international humanitarian law‟ alleged to have been committed “in breach of the „International Bill of Human Rights‟, other relevant international instruments and mandatory resolutions of the United Nations Security Council‟ (ICJ Report 2006: 12). Congo blamed that Rwanda is (ICJ Report 2006: 14-15): guilty of genocide against more than 3,500,000 Congolese, including the victims of the recent massacres in the city of Kisangani, and by shooting down a Boeing 727 owned by Congo Airlines on [10] October 1998 in Kindu, thereby causing the death of 40 civilians.

Congo invoked the Court‟s jurisdiction on the basis on number of compromissory clauses in international conventions (Article 22 of the Convention on Racial Discrimination; Article 29, paragraph 1, of the Convention on Discrimination against Women; Article IX of the Genocide Convention; Article 75 of the WHO Constitution; Article XIV, paragraph 2, of the Unesco Constitution and Article 9 of the Convention on Privileges and Immunities; Article 30, paragraph 1, of the Convention against Torture ; and Article 14, paragraph 1, of the Montreal Convention) and the principle of jus cogens. But after final deliberation the Court did not find jurisdiction in respect of Rawanda. In the Case against Uganda the Court accepted that (ICJ Report 2005: 223): the prohibition against the use of force is a corner stone of the United Nations Charter. Article 2, paragraph 4, of the Charter requires that: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

The Court found that Uganda engaged in the use of force in the region of Congo. On the argument of self-defence, the Court described that „the events attested to by Uganda did not justify recourse to the use of force in self-defence‟. Considering UN General Assembly resolution 2625 of 24 October 1970 the court applied the jurisdiction in the matter thus(ICJ Report 2005: 224): the Republic of Uganda, by engaging in military activities against the Democratic Republic of the Congo on the latter‟s territory, by occupying Ituri and by actively extending military, logistic, economic and financial support to irregular forces having operated on the territory of the Congo, violated the principle of non-use of force in international relations and the principle of non-intervention;

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Regarding the admissibility the Court asserted (ICJ Reports 2005: 280): the claim submitted by the Democratic Republic of the Congo relating to alleged violations by the Republic of Uganda of its obligations under international human rights law and international humanitarian law in the course of hostilities between Ugandan and Rwandan military forces in Kisangani; further find that the Republic of Uganda, by the conduct of its armed forces, which committed acts of killing, torture and other forms of inhumane treatment of the Congolese civilian population, destroyed villages and civilian buildings, failed to distinguish between civilian and military targets and to protect the civilian population in fighting with other combatants, trained child soldiers, incited ethnic conflict and failed to take measures to put an end to such conflict; as well as by its failure, as an occupying Power, to take measures to respect and ensure respect for human rights and international humanitarian law in Ituri district, violated its obligations under international human rights law and international humanitarian law.

Nevertheless, the ad hoc judge Kateka delivered his dissenting opinion. He asserted that the wide range of the documents presented by the parties gave big space for exercise of choice, and that a judge needed to be guided by an „inner conviction‟ (inevitably influenced by one‟s background and experience). He stated that the Court had not been even handed in its treatment of the materials submitted by the two Parties which unfortunately the Court termed as „a bundle of news reports of variable reliability.‟ Similarly, he observed, the Court did not consider the materials presented by Office for the Coordination of Humanitarian Affairs (OCHA). Primarily reasoning all his reasoning was associated with the manner by which the Court examined the evidence. (iii) Self-determination East Timor (Portugal v Australia) was the first case, concerning human rights, in the postCold War period. The noncompliance of the Australia with the right of 'selfdetermination' of the people of East Timor is challenged by Portugal. The East Timor was a non-self-governing territory under Portugal as their administrative power. East Timor was colonized by Portugal and the West Timor by the Netherlands. In 1970s struggle for independence started in East Timor with the result military government had to leave. Soon the Indonesian government sent in its army on 7 December 1975, invaded the island, and occupied it. This invasion and occupation, and human rights violations in the

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territory, were criticized by the international community. It was estimated that within 20 years of this occupant, 200000 (nearly one-third of pre-invasion population of East Timor) had been killed (Bedi 2007: 175). In this case, the issue of self-determination was the real concern with the principle of international human rights law. Although, Indonesia invasion of East Timor was one of the primary reasons of the issue but the applicant had filed the case only against Australia and not against Indonesia because Indonesia had not accepted the Court‟s jurisdiction.15 The right of self-determination is widely recognized as an essential principle of contemporary international human rights law. Although Australia had recognized the right of self-determination for the people of East Timor, under the sovereignty of Indonesia but not under the administering power of Portugal. This was contrary to the UN resolutions. The Court stated in its decision that „the very subject-matter of the Court‟s decision would necessarily be a determination whether, having regard to the circumstances in which Indonesia entered and remained in East Timor, it could or could not have acquired the power to enter into treaties on behalf of East Timor relating to the resources of its continental self. The Court could not make such a determination in the absence of Indonesia‟(The Court considers the support for this decision from Monetary Gold case of 1943). The Court recalled in this respect that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction. But this rule of consent applies only to the parties to litigation and not necessarily to any supposedly third party, in this case Indonesia. Rosenne critically argued that „It is a matter of common sense that too rigid an attraction to that principle will paralyse any international tribunal‟ (Rosenne 1997: 439). The legal

15 Australia and Indonesia signed a Treaty in 1989, called Timor Gap Treaty, providing for joint Australian and Indonesian exploitation of the offshore oil and mineral resources of the maritime area called Timor Gap. This action was the instantaneous reason behind this case.

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basis in this case comes from Monetary Gold case but it had nothing to do with human rights. Judge Weeramantry in his Dissent stated that (ICJ Report: 142): [t]he Court‟s Judgment stops, so to speak, „at the threshold of the case‟. It therefore does not examine such seminal issues as the duties flowing to Australia from the right to selfdetermination of the people of East Timor or from their right to permanent sovereignty over their natural resources. It does not examine the jus standi of Portugal to institute this action on behalf of the people of East Timor.

Judge Weeramantry‟s clearly disagreed the majority view that „the Court cannot adjudicate on Portugal‟s claim in the absence of Indonesia.‟ Judge ad hoc Skubiszewski in his Dissenting Opinion found that „the judgment does not give sufficient expression to the present phase of international law where one of the finalities is to restore human dignity‟ (ICJ Report 2005: 238). According to critiques this case gave birth to a new anti-human rights principle which may be called „a triple breach principle‟ (Bedi 2007), first Indonesia breaching international

law by forcible taking possession of East Timor; secondly Australia

breaching international law by recognising Indonesian sovereignty over the territory and contributing and promoting the decline of the right to self-determination; thirdly, both entering, in violation of the UN Charter and several UN resolutions, into an international treaty, aiming at violent exploitation of the territory and resources of East Timor. The Judgment of this case echoes salutation to state sovereignty and not to human rights or human dignity. (iv) Other In another, somewhat similar case, the Court responded no differerently. The case of Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) is the first human rights related case in ICJ in 21st century. In this case Belgium, issued an arrest warrant against the Congo‟s Foreign Minister, accusing him of war crimes and crimes against humanity. The Congo brought a case against Belgium before the International Court of Justice accusing the latter of violating the immunity from prosecution granted by 70

international law to the Congo‟s minister. Belgium argued that immunity existed for official acts and not for private acts. The Court decided that „in issuing the arrest warrant, Belgium failed to respect the immunity enjoyed by the minister, hence to remedy the situation the warrant must be cancelled‟. The Court was criticized because the Court decided the case in the perspective of the doctrine of immunity and not on the basis of human rights and humanitarian law issues which were associated with this case. Furthermore it decided the question of immunity without considering the doctrine within the framework of the principle of universal jurisdiction. For the Court even in the 21st century the state sovereignty was in presiding concern and human rights and dignity was the secondary matter. This judgment could not establish a good relation between international relation and human rights. (v) Consular Disputes Three cases against the United States have immense importance with regard to domestic criminal law system and international obligations of states. These cases were brought before the Court by Paraguay (Vienna Convention on Consular Relations (Paraguay v. United States of America) in 1998), Germany (The LaGrand (Germany v. United States of America) 1999) and Mexico (Avena and Other Mexican Nationals (Mexico v. United States of America) 2003). All three cases are based on the interpretation of the „Vienna Convention on Consular Relations of 24 April 1963‟. The facts of first two cases are more or less similar. Paraguay filed an application in the Court to stop the execution of its national Angel Francisco Breard, while Germany pleaded for its national Karl and Walter LaGrand sentenced to death in the US. Paraguay mentioned that Breard was charged, tried, convicted of culpable homicide and sentenced to death (by a Virginia court (the Circuit Court of Arlington County) in 1993), and he was not informed his rights under Article 36

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subparagraph 1(b)16 of Vienna Convention (ICJ Report 1998: 249). On the same ground Germany brought up the case of Karl and Walter LaGrand (ICJ Report 2001: 471). Paraguay also submitted an urgent request for indication of provisional measures in order to protect the rights of its national. The Court averred that the United States should take „al1 measures at its disposa1 to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of al1 the measures which it has taken in implementation of this Order‟ (ICJ Report 1998: 258). This was the order of 9 April 1998 but US did not comply with this order and after five days of this decision executed the convict with a lethal injection. This was the clearly violation of the order of the Court but also shows how major powers treat international law and institutions. In the LaGrand case on 15 January 1999, the Supreme Court of Arizona decided that Karl LaGrand was to be executed on 24 February 1999, and that Walter LaGrand was to be executed on 3 March 1999 (ICJ Report 2001: 478). On the 2 March 1999 (At 7.30 p.m. The Hague time) Germany instituted proceeding and request for the provisional measure to stop the execution of Walter LaGrand. Keeping in view the urgency of the situation, the Court unanimously directed the United States „to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of al1 the measures which it has taken in implementation of this Order‟(ICJ Report 1999: 16). On the same day of the order, the Governor of Arizona decided „in the interest of justice‟ to allow the execution of Walter LaGrand to go forward as scheduled (ICJ Report 2001: 479). Same day US Supreme Court also rejected application of Germany for stay of execution. In these circumstances Walter LaGarnd was executed through use of lethal gas. The Solicitor General United States took the position that „an order of the International Court of Justice indicating provisional measures is not binding and does not furnish a basis for judicial relief‟ (ICJ Report 2001: 479, 499, 507). The reasoning

16

Title of the Article 36 „Communication and contact with nationals of the sending State‟ Paragraph I (b) of that Article provides that if a national of that Stale "is arrested or committed to prison or to custody pending trial or is detained in any other manner", and he so requests, the local consular post of the sending State is to be notified. The Article goes on to provide that the "competent authorities of the receiving State" shall "inform the person concerned without delay of his rights" in this respect.

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behind this argument was based on the difference of language in Article 41, in French and English versions of the Statute. The English text uses the word „indicate‟ and „ought‟ but not „order‟, or „must‟ or „shall‟, and of „suggested‟ instead of „ordered‟ that makes Article 41 lack mandatory effect. On the other hand the words used in French version, doivent être prises, sound more forceful. In its final judgment, however, the Court made clear that „orders under provisional measures under Article 41 have binding effect‟ and the order of 3 March was binding and created a legal obligation for the US (ICJ Report 2001: 506). Besides, US stated two more excuse firstly that „the extraordinarily short time gap between issuance of the Court's Order and the time set for the execution of Walter LaGrand and secondly its federal character of divide powers. The Court did not consider all these arguments also. Another case was, somewhat on the similar grounds, filed by Mexico to prevent the execution of its 52 nationals.17 The United States as in the above cases, challenged the jurisdiction and admissibility of the case. Besides, the US argued that „Mexico should not be allowed to invoke against the United States standards that Mexico does not follow in its own practice.‟ In their final conclusion the Court stated that „United States breached the Article 36, paragraph 1 (h), of the Vienna Convention on Consular Relations of 24 April 1463‟ and found that „the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals‟ (ICJ Report 2004: 70, 71). These all cases indicate the reluctance of US to carry out its international obligations to respect consular rights of foreign nationals. The Court acted very speedily (average one year per case) in this matter and accepted requests for provisional measures in all three cases.

17

The original claim related to 54 such persons, but as a result of subsequent adjustments to its claim made by, only 52 individual cases are involved, These criminal proceedings have been taking place in nine different States of the United States, namely California (28 cases), Texas (1 5 cases), Illinois (three cases), Arizona (one case), Arkansas (one case), Nevada (one case), Ohio (one case), Oklahoma (one case) and Oregon (one case), between 1979 and the present (ICJ Report 2004: 24).

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(vi) Two Non- Traditional Cases Pending before the Court In May 2010 Australia instituted an application for proceedings against Japan‟s continued pursuit of a large-scale program of whaling. The reference was to the Second Phase of Japanese Whale Research Programme under Special Permit in the Antarctic (“JARPA II”). According to Australia this programme was a breach of obligations by Japan under the International Convention for the Regulation of Whaling (“ICRW”) and its other international obligations for the preservation of marine mammals and the marine environment. This is very different matter from the traditional issues. It not only concerned the environment but also protection of biodiversity. Australia claimed that under JARPA I Japan has killed approximately 6,800 Antarctic minke whales (Balaenoptera bonaerensis) against the total of 840 whales killed globally. Australia further stated that the focus of JARPA II was on the killing and taking not only of Antarctic minke whales but also of fin whales (Balaenoptera physalus), humpback whales (Megaptera novaeangliae) and possibly other species within the Southern Ocean Sanctuary. During (2005-2007), 1364 Antarctic minke whales and 13 fin whales were killed; 551 Antarctic minke whales were killed during the 2007-2008 season; and 680 Antarctic minke whales and one fin whale were killed during the 2008-2009 season. In November 2012, New Zealand filed a declaration of intervention in the proceedings under Article 63 of the Statute. New Zealand asserted that „[a]s a party to the Convention (the International Convention for the Regulation of Whaling), [it] has a direct interest in the construction that might be placed upon the Convention by the Court in its decision in these proceedings.‟ The Case is still pending but it has immense importance in international environment and biodiversity issues. Another case is concerns with Colombia‟s aerial spraying of toxic herbicides at locations near and across its border with Ecuador. Ecuador contended that „since 2000 Colombia has used airplanes and helicopters to spray powerful, broad-spectrum herbicides (the chemical composition of which it refuses to disclose) over wide swaths of territory in the two States‟ border region.‟ Ecuador claimed that „immediately after the sprayings,

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residents in and around San Francisco Dos developed serious adverse health reactions including fevers, diarrhea, intestinal bleeding, nausea and a variety of skin and eye problems. Children were affected particularly badly. At least two deaths occurred in the days immediately following these initial sprayings, in a community where no similar deaths had been reported in the two preceding years.‟ Besides, „area vegetation, including local agricultural crops, was devastated. Yucca, corn, rice, plantains, cocoa, coffee and fruit turned brown, became desiccated and died. Animals were similarly hard hit: reported deaths of poultry and fish were particularly wide-spread, and dogs, horses, cows and other animals also became ill.‟ As it very well known, that Ecuador covers only 0.17 per cent of the Earth‟s area but it possesses an extremely large share of the world‟s biodiversity. Ecuador has the world‟s highest biological diversity per area unit; i.e., on average, there are more species per square kilometer in Ecuador than anywhere else in the world. Ecuador claimed that Colombia should indemnify Ecuador for any loss or damage caused by its internationally unlawful acts, namely the use of herbicides, including by aerial dispersion. The demand for the protection of environment, natural resources, risk of health, destruction of biodiversity etc. are some fetching issues before the Court. This case is also pending before the Court. Compliance with Court’s Orders Some experts accept that the Court has an impressive record of compliance with its judgments by the parties (Patel 2007: 112). Former President of the Court Rosalyn Higgins admits that noncompliance of the Court‟s orders are a rare phenomenon. She stated during her speech to the Security Council Thematic Debate, “no more than a handful (of cases) have presented problems of compliance. And of this handful, the problems of compliance have mostly turned out to be temporary”. In the first case of after the Cold War (Territorial Dispute (Libyan/Chad) after deliberation of the case the Court awarded the entire Aouzou Strip to Chad. Libya initially rejected the verdict, and reportedly began reinforcing troops in the area (Paulson

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2004: 441). Nevertheless, after a negotiations with Chad, Libya‟s leaders Col. Qaddafi had „accepted the ruling of the ICJ without any attempt to reverse it‟. The Libya had withdrawn the troops from the Aouzou under supervision of Security Council, at the request of both parties (Paulson 2004: 441). In the case of Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v . Nigeria: Equatorial Guinea Intervening), Nigeria agreed to accept parts of the decision it perceived as fair or favorable to itself but rejected parts it found „unacceptable‟. President Olusegun Obasanjo explained Nigeria's position: „We want peace, but the interest of Nigeria will not be sacrificed.... [W]hat may be legally right may not be politically expedient‟ (Quoted in Paulson 2004: 450). Another case of African region „Kasikili/Sedudu Island (Botswana/Namibia) where the Court awarded Kasikili/Sedudu to Botswana, and took the initiative to say that nationals and vessels from the two states were entitled to equal treatment in both channels around the island. President Sam Nujoma of Namibia expressed his disappointment with the judgment and added that „[a]s a law-abiding nation and consistent with our undertaking, I wish to assure the international community that Namibia will abide by the verdict of the ICJ and respect it fully.‟(Quoted in, Paulson 2004: 455). As discussed in „The LaGrand‟ (Germany v. United States) and Vienna Convention on Consular Relations (Paraguay v. United States of America) US visibly violated the Court‟s order on the basis of doubtful legal grounds. In Gabcfkovo-Nagymaros Project (Hungary/Slovakia) case is still pending because Slovakia filed a request with the ICJ for an additional judgment due to noncompliance by Hungary with the first part of the decision. In sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) Indonesia indicated that although it was dissatisfied with the decision it would respect the outcome. In the case of Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Bahrain objected to the jurisdiction of the Court but after rejection of its contention in the Court, it switched its position with some hesitation and publicly supported the ICJ as the

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forum to resolve the dispute. It is difficult to evaluate compliance but it is comparatively easy to describe cases where compliance is not necessary as no judgment was pronounced. In following cases the question of compliance does not arise for different reasons. Table 3.3: Cases: No Need for Compliance SN Year

Name of the Case

Reason for no need for Compliance

Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear Cambodia v. Thailand) (Cambodia v.Thailand) Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) Frontier Dispute( Burkina Faso/Niger) Whaling in the Antarctic (Australia v. Japan) Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland) Certain questions concerning diplomatic relations (Honduras v. Brazil)

Pending Case

Initiated 1

2011

2

2011

3 4 5

2010 2010 2009

6

2009

7

2008

8

2008

9

2008

10 11 12

2008 2008 2006

13

2006

14

2005

15

2003

16

2002

17

2002

Jurisdictional Immunities of the State (Germany v. Italy) Application of the Interim Accord of 13 September 1995 (Former Yugoslav Republic of Macedonia v. Greece) Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) Aerial Herbicide Spraying (Ecuador v. Colombia) Maritime Dispute (Peru v. Chile ) Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations (Commonwealth of Dominica v. Switzerland ) Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France ) Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua ) Certain Criminal Proceedings in France (Republic of the Congo v. France) Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier (El Salvador/Honduras: Nicaragua intervening (El Salvador v. Honduras))

Pending Case Pending Case Pending Case Discontinue (Removed from the List) Discontinue of the Request of Applicant (Removed from the List) Latest Judgment (will take time for compliance) Latest Judgment (will take time for compliance) Find no Jurisdiction

Pending Case Pending Case Case removed from the Court's List at the request of Dominica Judgment is not one Discontinuance (Removed from the List) Case was discontinued without any prior judgment on the merits Lack of jurisdiction or admissibility

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18

2001

19

2001

20

2001

21

1999

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)

22

1999

23

1999

Legality of Use of Force (Yugoslavia v. United States of America) Legality of Use of Force (Yugoslavia v. Spain)

24

1999

25

1999

26

1999

27

1999

28

1999 1999

Territorial and Maritime Dispute (Nicaragua v. Colombia) Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) Certain Property (Liechtenstein v. Germany)

Legality of Use of United Kingdom) Legality of Use of Portugal) Legality of Use of Netherlands) Legality of Use of Italy) Legality of Use of Germany) Legality of Use of France)

Force (Serbia and Montenegro v. Force (Serbia and Montenegro v. Force (Serbia and Montenegro v. Force (Serbia and Montenegro v. Force (Serbia and Monténégro v. Force (Serbia and Montenegro v.

29 30

1999

31

1999

32

1999

33

1999

34

1998

35

1998

36

1995

Armed Activities on the Territory of the Congo(Democratic Republic of the Congo v. Uganda) Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) Fisheries Jurisdiction (Spain v. Canada)

37

1993

Gabčíkovo-Nagymaros Project (Hungary/Slovakia)

38

1992

Oil Platforms (Islamic Republic of Iran v. United States of America)

Legality of Use of Force (Serbia and Montenegro v. Canada) Legality of Use of Force (Serbia and Montenegro v. Belgium ) Aerial Incident of 10 August 1999 (Pakistan v. India)

Judgment is not one Lack of jurisdiction admissibility

or

Lack of jurisdiction or admissibility Judgment has been made regarding jurisdiction, but no Judgment has been made on the merits (Pending Case) lack of jurisdiction or admissibility lack of jurisdiction or admissibility lack of jurisdiction or admissibility lack of jurisdiction or admissibility lack of jurisdiction or admissibility lack of jurisdiction or admissibility lack of jurisdiction or admissibility lack of jurisdiction or admissibility lack of jurisdiction admissibility lack of jurisdiction admissibility

or or

lack of jurisdiction or admissibility Case was discontinued without any judgment on the merits (Pending Case) lack of jurisdiction admissibility

or

lack of jurisdiction admissibility Pending Case

or

Claim was rejected

78

39

1992

40

1992

41

1991

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) East Timor (Portugal v. Australia)

Discontinue (removed from the list at the joint request of the parties ) Discontinue ( removed from the list at the joint request of the parties ) Lack of jurisdiction admissibility

or

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Chapter IV THE COURTS ADVISORY OPINIONS, 1993-2010 While the preceding chapter has addressed the variety of issues raised in the contentious cases raised at the World Court during the post-Cold War years, the present chapter takes up yet another dimension of the Court‟s role, viz. the advisory opinions sought from the Court on tricky issues of international law by the General Assembly or other and specialized agencies of the United Nations, as the case may be. As explained in chapter II of this study, the Court, as an authoritative and expert body, is endowed with the power under the provisions of the Charter (Article 96) and the Statute (Article 65-68) to deliver advisory opinions on legal issues when sought by the United Nations. The Advisory opinions, generally speaking, have over the years not only contributed to the development of international law but also clarified on the rectitude of the public policies of the United Nations and by implication the actions of member states concerned. One may refer to the advisory opinions of the Court in yesteryears on the legal personality of the United Nations, the admission of states into the UN membership, the financial responsibility of member states, to underline the importance of the Court and in this regard and their impact. Statistically the number of advisory opinions sought from the World Court after the Cold War is quite modest, in comparison to both those delivered in the Cold War times and also in to the number of contentious cases handled since the end of the Cold War. But that does not take away the significance of the issues raised in respect of not just international law but world policies at large. The opinions addressed such vital issues as nuclear weapons use, to privileges and immunities of UN personnel and, the admissibility of the unilateral declaration of independence. Of the six opinions, one question has come up twice, while on one occasion the Court refused to recognize the competence of the opinion seeking body. Notably again, the General Assembly appears as the most active in turning to the Court three times, and the Economic and Social Council (ECOSOC) sought the opinion once. The World Health Organization tried unsuccessfully once, whereas the 80

Security Council never used the tool during the period under study. From the Court‟s point of view it is worth noting that in each these opinions there were notable dissenting opinions by the one or more members of the Court. The discussion that follows in the chapter details the developments in respect of five occasions on which the Court exercised its advisory jurisdiction. (1) Legality of the Use by a State of Nuclear Weapons in War and other Armed Conflict (i) Background The issue of use, possession, distribution and production of the nuclear weapons has its legal significance as well as political. Earlier in 1973 through two separate contentious cases New Zealand and Australia, first time on the issue of nuclear tests in the Court‟s judicial proceedings, sought decision against France for prohibition of atmospheric nuclear weapon tests in the South Pacific Ocean. Unfortunately, the Court could not find „any object‟ to decide the dispute when the France, through an act (the General Act for the Pacific Settlement of International Disputes 1974), prohibited its further nuclear tests in said regions. Request for advisory opinion on the issue were reportedly at the behalf of a determined group of antinuclear nongovernmental organizations that created the „World Court Project‟ (WCP). In May 1993 the WCP, a coalition of the International Peace Bureau (IPB), the International Physicians for the Prevention of Nuclear War (IPPNW), and the International Lawyers Against Nuclear Arms (IALANA), came into action with determination to backing „the UN, use its own judicial organ to stimulate nuclear disarmament.‟ A former Indian ambassador to the UN also raised his voice „to get an advisory opinion and then build it into a legally binding treaty‟ in 1980s. Apart from this several other inspired ideas came into light, one of these, „Declaration of Public Conscience (DPC)‟ transformed into a movement and more than 170000 DPC with 100

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million signatures18 were presented to the Court (Dewes and Green 1995). The request from the WHO, indeed, was the outcome of „international public opinion‟. Pursuant to resolution of the World Health Assembly19 and under the provision Article 96, paragraph 2, of the Charter of the United Nations governing the access of the UN the specialized agencies, World Health Organization (WHO), submitted the following question, to the Court for an advisory opinion, on 3 September 1993: In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?

(ii) Conditions for Admissibility and Views of States Before commencing its deliberations the Court called for written statements from the World Health Organization and its member States who are entitled to appear before the Court in accordance with Article 66, paragraph 2. A total of 43 written statements, including from the nuclear weapon states except China, were submitted before the Court. The Court established that three conditions must be satisfied to establish jurisdiction in advisory proceedings initiated by any agency. Firstly, the agency requesting the opinion must be duly authorized, under the Charter; secondly, the opinion requested must be on a legal question; and finally, this question must be one arising within the scope of the activities of the requesting agency (ICJ Report 1996: 71, 72). The Court took, as a reference point an earlier advisory opinion (1982) on „Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal‟, (ICJ Report 1982: 333, 334).

18

The sponsors of a Declaration of Public Conscience from Japan have stated, in a communication to the Registrar, that they have stored in a warehouse in The Hague, 1,757,757 signatures, which the Court had no space to accommodate, in addition to the 1,564,954 actually deposited with the Court. Another source, based in Europe, has reckoned the declarations it has received, in connection with the current applications to the Court, at 3,691,899, of which 3,338,408 have been received from Japan. (Judge Weeramantry quoted in his dissenting opinion, ICJ Reports 1996: 438) 19 Principal decision making body of World Health Organization, resolution -WHA46.40 14 May 1993

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As for the first condition, it may be noted, paragraph 2 of Article X of the Agreement 20 of 10 July 1948 between the United Nations and the WHO authorizes WHO to seek advisory opinion in these words (quoted in ICJ Reports 1996: 72): The General Assembly authorizes the World Health Organization to request advisory opinions of the International Court of Justice on legal questions arising within the scope of its competence other than questions concerning the mutual relationships of the Organization and the United Nations or other specialized agencies.

This postulate assuredly shows that WHO is an authorized body under UN Charter in accordance with Article 96, paragraph 2, of the Charter, to request advisory opinions of the Court. Indeed this point was not much disputed in this proceeding as the Court earlier gave an accepting WHO an authorized body to seek advisory opinion (vide the opinion on „the Agreement of 25 March 1951 between the WHO and Egypt‟). On the second condition, notably, many countries argued in their submissions that question submitted to the Court were fundamentally political in nature therefore the Court should use its discretionary power under Article 65 paragraph 1 of the Statute. The fact that this question also has some political aspects cannot prompt the Court to „refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by international law‟ (ICJ Reports 1947-1948: 6162; ICJ Reports 1950: 6-7; ICJ Reports 1962: 155; ICJ Report 1996: 73, 74). The Court stated earlier in „the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt‟ that (ICJ Reports 1980: 87): Indeed, in situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable with respect to the matter under debate, especially when these may include the interpretation of its constitution.

Therefore the Court found that indeed the matter was a legal question even though it embodied some political aspects. The third condition was the most debatable in the statements of the states. Netherland, Australia, Russia, Italy, the United Kingdom, and the 20

This agreement was approved by the United Nations General Assembly on 15 November 1947 (resolution 124 (II)) and by the World Health Assembly on 10 July 1948 (resolution [WHAl. 1021).

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United States stated that the question was beyond the scope of activities of WHO therefore it was not necessary to seek any advisory opinion under Article 96 paragraph 2 of the UN Charter. The Netherlands argued in its statement that, „WHO is not competent to make the request on this matter because this question is beyond the scope of its competence and it has no legitimate legal interest in this request.‟ In the view of the Netherlands only the Security Council and, under certain conditions, the General Assembly were competent in this issue. Russia also argued in the same manner- „ In the framework of WHO‟s competence there is none that would give the WHO grounds to tackle the question of legitimacy or non-legitimacy of the use of nuclear weapons or to submit this question to the International Court of Justice.‟ Italy stated that „the question does not fall within the "scope of activities" of WHO and therefore it did not meet the requirements needed for the application seeking an Advisory Opinion as provided for by Article 96, para. 2 of the Charter, according to which the U.N. General Assembly, the only organ which, together with the Security Council, has the right to directly request an Advisory Opinion to the Court‟. United States contended that „the Court lacks jurisdiction to provide the requested opinion because the WHO has not been authorized to request an opinion on the legal question presented by the request. The legal question presented by the request does not address the functions and responsibilities of the WHO rather the question presented is vague and abstract addressing complex issues which are the subject of consideration among interested States and within other bodies of the United Nations which have an express mandate to address these matters.‟ Adopting similar like the UK stated that „an advisory opinion in this case is not one arising within the competence of the Organization the request is motivated by political factors.‟ The Federal Republic of Germany asserted that „WHO request for an advisory opinion on the use of nuclear weapons is bound to fail because such a request is not admissible.‟ Finland stated that: It would thus be improper for the Court to give the opinion requested by the World Health Assembly in the precise sense that the Court's long-standing practice in the matter of advisory

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opinions indicates. Such impropriety would seem to be constituted of three different but related factors: 1. The request falls outside the competence of the requesting organ (World Health Assembly); 2. Considering the request the Court could not remain faithful to the requirements of its judicial character; 3. No reply to the substance of the request would constitute a useful service to the United Nations of which the Court is the principal judicial organ.

Contrary to these views of developed states, the developing and least developed states welcomed the initiative of the WHO and gave their views on illegality of the use of nuclear weapons. Korea, Ukraine, Lithuania, Philippines, Kazakstan, Papua New Guinea, Republic of Moldova, Mexico, Solomon Islands, Costa Rica, Sri Lanka, Malaysia, Iran, India and other countries offered the view that use of nuclear weapons in war or in other conflicts is a breach of international law. Unlike the long, comprehensive and detailed legal argumentative statements of developed states, the developing countries, with a few exceptions, confined themselves to generalities. Among exceptions, Solomon Islands had given detailed statement likewise the US (34 pages) and UK (97 pages). India submitted its statement twice, and the second one was well drafted. India argued that the WHO has previously exercised the right to seek advisory opinion in 1980 and the present matter similarly lay within the scope of its activities. India stated that: A number of specified functions are set out in Article 2 of its Constitution It is in the application of these functions that the WHO has undertaken its activities for many years on the health and environmental consequences of the use of nuclear energy and materials, including weapons…..Any argument that the subject of the human health and environmental effects of the use of nuclear weapons fell outside the scope of WHO‟s activities would be contrary to the evolution of its practice.

India argued that since 1981 the World Health Assembly (WHA) adopted a number of important resolutions addressing the effect of nuclear weapons on human health and environment. Hence opinion of the Court would assist the WHO in future to conduct activities by adopting a preventive approach. Apart from this, India cited a number of resolution and conventions with detailed survey of principles of international law to assert that use of nuclear weapons in war or other conflicts would be a breach of international law. In its concluding wordings India stated that „production of weapons

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which have the capacity to destroy al1 mankind cannot in any manner be considered to be justified or permitted under international law.‟Solomon Island and Mexico are among the countries that emphasized on the environment issue in this regard. Mexico stated that: [I]n view of its effects on health and the environment, the use of nuclear weapons by a State in war or other armed conflict constitutes a breach of the obligations imposed by international law, including the Constitution of the World Health Organization (WHO), in that it represents a breach of generally-accepted, conventional and customary principles. of international law mainly those that guarantee peace and international security, the right to life and health; the protection to the environment; and the protection to mankind, since the effects of nuclear weapons are genetically passed on to future generations and alter the lives of human beings not yet conceived.

Other developing countries also stated similar views. Interestingly, Japan, a developed and only victim of nuclear weapons, stated its view in a roundabout manner: While the Government of Japan is of the view that the matter of the Court's jurisdiction with regard to the question upon which an advisory opinion is requested by WHO should be considered most carefully by the Court, the Government submits its view on the subject in question, "The Government believes that, because of their immense power to cause destruction, the death and injury to human beings, the - use of nuclear weapons is 'clearly contrary to the spirit of humanity that gives international law its philosophical foundation.

(iii) Majority Opinion of the Court In order to describe the field of activity or the area of competence of an international organization, the constitution of the organization is the most significant tool. The Court considered Article 2 of the WHO founding agreement to examine the scope of activities of the organization. The Court afterwards stated that (ICJ Reports 1996: 76, 77): the provisions of WHO‟s Article 2 may be read as authorizing the Organization to deal with the effects on health of the use of nuclear weapons, or of any other hazardous activity, and to take preventive measures aimed at protecting the health of populations in the event of such weapons being used or such activities engaged in. The question put to the Court in the present case relates, however, not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects.‟ …. In particular, the legality or illegality of the use of nuclear weapons in no way determines the specific measures, regarding health or otherwise (studies, plans, procedures, etc.), which

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could be necessary in order to seek to prevent or cure some of their effects. Whether nuclear weapons are used legally or illegally, their effects on health would be the same.

Regarding the nature of the international organizations and The Court pointed out that (ICJ Reports 1996: 78, 79): [I]nternational organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the "principle of speciality", that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.

Describing the powers and functions of the international organizations the Court asserted that: The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments. Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as "implied" powers. As far as the United Nations is concerned, the Court has expressed itself in the following terms in this respect: "Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.

Finally describing the issues of use of force and disarmament extraneous from the specialized agencies, the Court rejected the request of WHO and stated (ICJ Reports 1996: 79): by virtue of Article 57 of the Charter, "wide international responsibilities", those responsibilities are necessarily restricted to the sphere of public "health" and cannot encroach on the responsibilities of other parts of the United Nations system. And there is no doubt that questions concerning the use of force, the regulation of armaments and disarmament are within the competence of the United Nations and lie outside that of the specialized agencies.‟

(iv) Dissenting Opinions Judge

Shahabuddeen,

Weeramantry,

and

Koroma

delivered

their

dissenting

interpretation. Judge Weeramantry explained the question linking it with the states‟ obligation regarding health, environment and under WHO constitution that show a fundamental issue of global health, the integrity of the human environment that relates to 87

the fundamental constitutional objective of WHO. In very plain and simple manner he stated (ICJ Reports: 170): The family of United Nations agencies, in working harmoniously for the common welfare of the global community, will need to work as a team, each helping the other with the special expertise that lies within its province. The Court's advisory jurisdiction is a means par excellence by which the Court can discharge its responsibilities in this regard. It is my opinion that the Court should answer the question WHO has addressed to it and that it should answer WHO's question in the affirmative. If this dissent sets out my views in some depth and detail, it is because no less is necessary on an issue of this magnitude. An important feature of the tradition of judicial responsibility is that the judges "will not hesitate to speak frankly and plainly on the great issues coming before them".

In his concluding remark he quoted an extract from John Hersey's classic book „Hiroshima‟ and explained how a well-organized country lacked the total inadequacy of medical facilities after a single nuclear attack with a comparatively small weapon. Judge Koroma described that WHO is responsible for protecting and safeguarding the health of al1 peoples at the international level and its responsibilities include the taking of measures to prevent health problems on a catastrophic scale, such as those which may result from the use of nuclear weapons. He declared that „health is the pillar of peace‟ and the Court has always responded positively to requests for advisory opinions therefore the Court should deliver its decision positively. He stated (ICJ Reports 1996: 223, 224): As already mentioned, international organizations have regarded the instrument of an advisory opinion as a means of securing an authoritative legal opinion on thorny or difficult issues facing them. The Court has always responded positively to requests for advisory opinions, regarding its role as participation in the activities of the Organization while at the same time protecting its judicial character. That trust would now appear to have been broken. It is regrettable that the Court has chosen to vacate its positive record in this sphere on an issue of such vital importance, an issue that embraces not only a legal but a moral and humanitarian dimension as well. The Court considered these aspects in the case concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (I.C.J. Reports 1951, p. 23). It has been said that "medicine is one of the pillars of peace"; it can equally be said that "health is a pillar of peace" or as is stated in the Constitution of the WHO "the health of al1 peoples is fundamental to the attainment of peace and security". On the basis of the aforesaid, find that the Court's Opinion is inadequately reasoned, has failed to address the crucial issues raised and is inconsistent with its jurisprudence. 1, therefore, find myself unable to concur with it. On the other hand, and on the basis of the material before the Court, applying the law to that material, 1 am of the firm conviction that a State would be in breach of its obligations under international law, including the WHO

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Constitution, were it to use nuclear weapons in war or other armed conflict in view of the health and environmental consequences. To put a question of this kind to the Court is indeed within the competence and scope of the activities of the WHO.

It is interesting to know that each of both dissenting opinions is more detailed than the majority opinion and is more than trice and twice in size respectively. Compared to these two dissenting opinions judge Shahabuddeen gave a short and concise opinion. He asserted that the Court too lightly dismissed the references in the question to „the health and environmental effects‟ and to „the WHO Constitution‟. Opining that the Court imperfectly interpreted the question pointed out that (ICJ Reports 1996: 97): the WHO is not asking whether the use by a State of nuclear weapons in war or other armed conflict would be a breach of its obligations under some branch of international law unrelated to the scope of the Organization's activities, but only whether such use would be a breach of the obligations of the State under international law in so far as it would also be a breach of its obligations under the Constitution of the Organization.

He indicated that indeed the Court‟s majority opinion in a sense sent a message that using nuclear weapon was not in breach of any obligation under the Constitution of WHO (ICJ Reports 1996: 100): The implication of the Court's decision is that member States do not have ail obligation under the Constitution of the WHO not to use nuclear weapons. It follows that the use of such weapons by a member State would not "be a breach of its obligations under international law including the WHO Constitution", to use the terms of the question as construed above. This means that the Court is giving an answer to the question asked by the WHO; it is not really declining to answer the question. The reader of the Court's decision would not think that the Court needs to do anything more in order to provide an answer. Whether the Court answers in the negative or in the affirmative, expressly or impliedly, correctly or incorrectly, it can only answer by presupposing that the WHO has the competence to ask the question. This is what the Court denies. I am respectfully of another view.

(2) Legality of the Threat or Use of Nuclear Weapons During the proceedings of the Court on the request made by the WHO, on 6 January 1995 UN General Assembly filed another request for advisory opinion on the question: 'Is the threat or use of nuclear weapons in any circumstance permitted under international law?‟

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The draft resolution authorizing request was prepared and introduced by Indonesia in the Assembly, originally in English, on behalf of the Movement of Non-Aligned Countries (ICJ Reports 1996: 332). (i) Claims and Counter-Claims of the States, Court’s Stand Thirty five states21 submitted written statements and written comments on those written statements were submitted by Egypt, Nauru and Solomon Islands. Later Republic of Nauru requested the Court's permission to withdraw the written comments submitted on its behalf. Twenty four states made oral submissions. Richard Falk (1997) divided the position of states in term of contextualists (who affirmed that nuclear weapons threat or use is illegal only under certain circumstances) and prohibitionist (who asserted illegality of nuclear weapons threat or use under any circumstances). The P-5 states (except China which did not participated in the proceedings), with their allies, expressed contextualists affirmation and did not accept the illegality of threat or use of nuclear weapons. In contrary, with other developing countries, as a prohibitionist India made clear that „even in response by way of retaliation states do not have the right to use nuclear weapons because of their special quality as weapons of mass destruction‟ and supported the complete illegality of „nuclear weapons threat or use‟. Prohibitionists, notably quoted, the Article 2 (4) of the UN Charter that declares „All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations‟, and argued in the favor of „absolute nature of obligation‟ on international community under this article. Contextulists, in their arguments, believed in political solution of the question through the negotiations for non-proliferation and disarmament. They also made point, on the basis of nonproliferation and disarmament treaties, that acceptance of these treaties authenticate

21

Bosnia and Herzegovina, Burundi, Democratic People's Republic of Korea, Ecuador, Egypt, Finland, France, Germany, India, Ireland, Islamic Republic of Iran, Italy, Japan, Lesotho, Malaysia, Marshall Islands, Mexico, Nauru, Netherlands, New Zealand, Qatar, Russian Federation, Samoa, San Marino, Solomon Islands, Sweden, United Kingdom of Great Britain and Northern Ireland, and United States of America

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the possession of nuclear weapons hence the use would not be illegal under any circumstances. According to contextualists role of deterrence, that is apolitical process, is more significant than the judicial deliberation and the issue is come under sovereign authority of the states. Some of the submissions may be summarized here: Ultra vires Scope of GA: In their statements contextualists states opposed giving of an opinion by the Court and argued that requesting an opinion on this matter is totally unrelated to the work of the General Assembly (GA) and Security Council. Political Nature: The nature of the question as political one and not legal was argued influentially to refuting the admissibility and jurisdiction of the Court and provided that Article 96(1), according to which „The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question‟, recognizes jurisdiction of the Court only to the legal questions. It was contended that this was a „matter of strategy and defence policy‟ therefore laid in „within the purview of each state‟. Ambiguitas and abstracto vagum: The United Kingdom, France, Finland, Netherlands, and Germany made similar arguments in their statements. Reinforcing the point on the vague and abstract nature of the question, these contextualists claimed that there existed no specific dispute on the subject-matter of the question therefore the no need for the Court to render an opinion. Many States have expressed the fear that „the abstract nature of the question might lead the Court to make hypothetical or speculative declarations outside the scope of its judicial function.‟ The United States, argued in their written statements that: The question presented is vague and abstract, addressing complex issues which are the subject of consideration among interested States and within other bodies of the United Nations which have an express mandate to address these matters. An opinion by the Court in regard to the question presented would provide no practical assistance to the General Assembly in carrying out its functions under the Charter. Such an opinion has the potential of undermining progress already made or being made on this sensitive subject and, therefore, is contrary to the interests of the United Nations Organization.

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Discrepancy with International Law: It was argued that the use of nuclear weapons would violate the right to life as guaranteed in Article 6 of the International Covenant on Civil and Political Rights (ICCPR). The contenders of this argument suggested that the Covenant was directed to the protection of human rights in peacetime, but that question related to unlawful loss of life in hostilities, a subject governed by the law applicable in armed conflict. Apart from this, several treaties, such as the Antarctic Treaty of 1959 which prohibits the deployment of nuclear weapons in the Antarctic or the Treaty of Tlatelolco of 1967 which creates a nuclear-weapon-free zone in Latin America, was dealing with the prohibition of the use of the nuclear weapons therefore the use of nuclear weapons would violate the international law. (ii) Deliberation of the Court The Court did not give any importance on the objection of „legal nature of the question‟ and took account of Article 10, 11 and 13 of the UN Charter and described that the Assembly is competent to „discuss any questions or any matters within the scope of the Charter.‟ The Court further positively explained the legal nature of the question and stated (ICJ Reports 1996: 234): The question put to the Court by the General Assembly is indeed a legal one, since the Court is asked to rule on the compatibility of the threat or use of nuclear weapons with the relevant principles and rules of international law. To do this, the Court must identify the existing principles and rules, interpret them and apply them to the threat or use of nuclear weapons, thus offering a reply to the question posed based on law.

In the respond of the argument that there was no specific dispute of the subject matter and nature of question was abstract. The Court explained the difference between requirements governing contentious procedure and to advisory opinions and asserted that „the purpose of the advisory function is not to settle directly disputes between States, but to offer legal advice to the organs and institutions requesting the opinion.‟ The Court referred several

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earlier cases22 and rendered „the Court may give an advisory opinion on any legal question, abstract or otherwise‟ (ICJ Reports 1996: 236). As several states argued, that „a reply from the Court in this case would be adversely affect disarmament negotiations‟ and, therefore, contrary to the interest of the United Nations.‟ Some others feared that „in answering the question posed, the Court would be going beyond its judicial role and would be taking upon itself a law-making capacity.‟ The Court clarified that it was not competent to make legislation and rendering advisory opinion did not mean to make legislation but it is a normal judicial function. Finally the Court decided in favor of its competence to render advisory opinion on the question raised by the General Assembly. Some legal scholars argued that the use of nuclear weapons would violate the right to life as guaranteed in Article 6 of the International Covenant on Civil and Political Rights (ICCPR). The contenders of this argument suggested that the Covenant was directed to the protection of human rights in peacetime, but that question related to unlawful loss of life in hostilities a subject governed by the law applicable in armed conflict. The Court responded by rulings (ICJ Reports 1996: 240) that: whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

(iii) Majority Opinion The Court in its opinion held that the existing international law to does not unambiguously forbid the use of nuclear weapons. Referring to Article 42 and 51 relating respectively to „the Security Council‟s

enforcement measures the inherent right of

22

Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p. 61; see also Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I. C. J. Reports 1954,p. 51; and Legal Consequences for States of the Continued Presence of South Africa in Narnibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I. C. J. Reports 1971, p. 27, para. 40

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individual or collective self-defence if an armed attack occurs‟ the Court stated (ICJ Reports 1996: 244): These provisions do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons.

The Court accepted right of self-defence on the condition of necessity and proportionality a canon rule of customary international law and pointed out (ICJ Reports 1996: 244): international customary and treaty law does not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those of the exercise of legitimate self defence. Nor, however, is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is formulated in terms of prohibition.

Explaining the treaties dealing with the prohibition of the use of the nuclear weapons (such as the Antarctic Treaty of 1959 which prohibits the deployment of nuclear weapons in the Antarctic, or the Treaty of Tlatelolco of 1967 which creates a nuclear-weapon-free zone in Latin America) and some other treaties that seem to make nuclear weapons illegal in certain circumstances and some regions, the Court asserted (ICJ Reports 1996: 252): the treaties dealing exclusively with acquisition, manufacture, possession, deployment and testing of nuclear weapons, without specifically addressing their threat or use, certainly point to an increasing concern in the international community with these weapons; the Court concludes from this that these treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition by themselves.

In sum, the Court did not find any conventional rule of general scope, or a customary rule that prohibit the threat or use of nuclear weapons. Finally the Court averred (ICJ Reports 1996: 266): (1) By thirteen votes to one, Decides to comply with the request for an advisory opinion; Against : Judge Oda ; (2) Replies in the following manner to the question put by the General Assembly :

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A. Unanimously, There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons; B. By eleven votes to three, There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such; Against: Judges Shahabuddeen, Weeramantry, Koroma;

C. Unanimously, A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet al1 the requirements of Article 51, is unlawful ; D. Unanimously, A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons; E. By seven votes to seven, by the President's casting vote, It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake; In Favor: President Bedjaoui ; Judges Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo; Against: Vice-President Schwebel ; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma, Higgins; F. Unanimously, There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in al1 its aspects under strict and effective international control.

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Above part was the most controversial and debated. On the second reply part E the Court‟s vote was divided equally (seven each). Finally, the casting vote was given by the president Bedjaoui in favor of the above conclusion. (iv) Views of Dissenting Judges Vice-President Schwebel, judge Oda, Shahabuddeen, Weeramantry, Koroma, and Higgins rendered their dissenting opinion. Judge Weeramantry was one of the leading lights of the contextualists understanding and opposed the use of nuclear weapons in any circumstances and stated (ICJ Reports 1996: 433): use or threat of use of nuclear weapons is illegal in any circumstances whatsoever It violates the fundamental principles of international law, and represents the very negation of the humanitarian concerns which underlie the structure of humanitarian law. It offends conventional law and, in particular, the Geneva Gas Protocol of 1925, and Article 23 (a) of the Hague Regulations of 1907. It contradicts the fundamental principle of the dignity and worth of the human person on which al1 law depends. It endangers the human environment in a manner which threatens the entirety of life on the planet.

He strongly opposed the term „generally‟, in paragraph 2E, on the basis of ambiguity and uncertainty of the world that creates an internal contradiction with paragraphs 2C and 2D. On the one hand the word "generally" introduce uncertainty as it contains several meaning from "as a general rule; commonly", to "universally with respect to al1 or nearly all". On the other hand it gave rise to inconsistency, when with paragraph 2C and 2D, and described that „nuclear weapons must be consistent with the United Nations Charter, the principles of international law, and the principles of humanitarian law, and, such consistency being impossible, the weapon becomes illegal‟ (ICJ Reports 1996: 435). He suggested the word „always‟ instead of „generally‟. He noted that conception of humanitarian law is not new and „deep-rooted in many cultures - Hindu, Buddhist, Chinese, Christian, Islamic and traditional African‟ and „a variety of limitations on the extent to which any means can be used for the purposes of fighting one's enemy‟. He made reference to some scholars to emphasize on multicultural approach and stated (ICJ Reports 1996: 478): [T]his Court is a universal Court, whose composition is required by its Statute to reflect the world's principal cultural tradition. The multicultural traditions that exist on this important matter cannot be ignored in the Court's consideration of this question, for to do so would be to

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deprive its conclusions of that plenitude of universal authority which is available to give it added strength.

He addressed the question claim, what is not expressly prohibited to a State is permitted and exposed the fallacy using two examples. Referring Martens Clause, that asserts, „beyond the domain of express prohibitions there lies the domain of the general principles of humanitarian law‟, he quoted D. Fleck‟s argument „If an act of war is not expressly prohibited by international agreements or customary law, this does not necessarily mean that it is actually permissible‟ (ICJ Reports 1996: 493). Moreover, he clarified it broadly and analyzed (ICJ Reports 1996: 493): More to the point than the question whether any treaty speaks of the illegality of nuclear weapons is whether any single provision of any treaty or declaration speaks of the legality of nuclear weapons. The fact is that, though there is a profusion of international documents dealing with many aspects of nuclear weapons, not one of these contains the shred of a suggestion that the use or threat of use of nuclear weapons is legal. By way of contrast, the number of international declarations which expressly pronounce against the legality or the use of nuclear weapons is legion.

Discussing human rights aspects, in reference to ICCPR, The European Convention for the Protection of Human Rights and Fundamental Freedoms-1950 (ECPHRFF), the American Convention of Human Rights -1969 (ACHR), and Universal Declaration of Human Rights-1948 (UDHR), he emphasized on right to life and argued even if it is not an absolute right, however, „when a weapon has the potential to kill between one million and one billion people such a deliberate action by an state is, in any circumstances whatsoever, incompatible with a recognition by it of that respect for basic human dignity‟ (ICJ Reports 1996: 507). Asserting second sentence of paragraph 2E of the opinion that not concluded definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, he reminded again the view that „the threat or use of nuclear weapons would not be lawful in any circumstances whatsoever, as it offends the fundamental principles of the jus in bello’ (ICJ Reports 1996: 513). On the argument which claiming that „the Non-Proliferation Treaty, by implication, recognizes the legality of nuclear weapons, for al1 participating states accept without objection the possession of nuclear weapons by the nuclear powers‟, he took reference of 97

preamble of said treaty that derived objects as „"the cessation of the manufacture of nuclear weapons, the liquidation of al1 existing . . . stockpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery" and argued elimination of the nuclear weapons and not legalized the use of nuclear weapons but is indeed indication of prohibition (ICJ Reports 1996: 536-37). In his dissenting opinion Vice-President Schwebel evaluated paragraph 2E of majority opinion and argued (ICJ Reports 1996: 322): This is (paragraph 2 E second part) an astounding conclusion to be reached by the International Court of Justice. Despite the fact that its Statute "forms an integral part" of the United Nations Charter, and despite the comprehensive and categorical terms of Article 2, paragraph 4, and Article 51 of that Charter, the Court concludes on the supreme issue of the threat or use of force of Our age that it has no opinion.

Judge Higgins also considered the matter of fact on clarity with regard to paragraph 2E and questioned judicial process by which the Court made its conclusion (ICJ Reports 1996: 584, 589): It is an essential requirement of the judicial process that a court should show the steps by which it reaches its conclusions. I believe the Court has not done so in respect of the first part of paragraph 2E. The findings in a judicial dispositif should be clear. I believe paragraph 2 E is unclear in its meaning (and one may suspect that this lack of clarity is perhaps regarded as a virtue). I greatly regret the non liquet offered in the second part of paragraph 2E. And I believe that in that second sentence the Court is declining to answer a question that was in fact never put to it.

What does the term "generally" mean? 1s it a numerical allusion, or is it a reference to different types of nuclear weapons, or is it a suggestion that the rules of humanitarian law cannot be met Save for exceptions? If so, where is the Court's analysis of these rules, properly understood, and their application to nuclear weapons? And what are any exceptions to be read into the term "generally"? Are they to be linked to an exceptional ability to comply with humanitarian law? Or does the term "generally", especially in the light of paragraph 96, suggest that if a use of nuclear weapons in extreme circumstances of self-defence were lawful, that might of itself exceptionally make such a use compatible with the humanitarian law?

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Considering the principle of non-acceptance of „unnecessary suffering‟23, through use of any type of weapons, she argued expand this principle to the nuclear weapons. She suspected that answer formulated in paragraph 2 E would not serve mankind to shelter from the suffering of fear of nuclear weapons (ICJ Reports 1996: 593). Judge Oda, only judge who voted against paragraph 1 gave justification, claimed GA anticipated affirmative answer to the question and asserted that the question did not fall in the meaning of Article 96(1) of the UN Charter. Apart from this, the words „the threat of nuclear weapons‟ are not clearly defined in the request and it made a possibility that nuclear weapons may be considered to constitute a „threat‟ purely by being in a State‟s possession or being under production by a State, considering that the phrase „threat or use of nuclear weapons‟, he raised possibility that some UN members considered the actual „possession‟ or „production‟ of nuclear weapons constituted a „threat‟. In other words, he forcefully claimed, „the request might have been prepared by some States who strongly upheld the straightforward notion of the illegality of nuclear weapons as whole‟ and accepted political nature of request (ICJ Reports 1996: 333). He finally enriched his argument and stated (ICJ Reports 1996: 341): the „question‟, which itself appears to me to be inadequate as a request for an advisory opinion of the Court under Article 96 (1) of the Charter of the United Nations, was drafted without any adequate statement of reasoning in support of any real need to ask the Court to rule on the "legality or illegality" of the "threat or use" (if not the "use or threat of use") of nuclear weapons or, in more general terms, of nuclear weapons themselves. It is certain that the request did not reflect a meaningful consensus of the Member States of the United Nations or even of its NonAligned Members.

He acknowledged the NPT regime as a necessary evil in the context of international security, where the doctrine of nuclear deterrence continues to be meaningful and valid. While he took the position on declination to render an advisory opinion, but he voted in all operative parts of in the ruling and rejected the majority view on paragraph 2E. Judge Koroma and Shahabuddeen both likewise other dissenting opinions made their

23

This involved some sort of equation between, on the one hand, the degree of injury or suffering inflicted (the humanitarian aspect) and, on the other, the degree of necessity underlying the choice of a particular weapon (the military aspect)." (International Committee of the Red Cross, 1975, para. 23.)

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reservation on the word „generally‟ of paragraph 2E and accepted all other subparagraphs with majority. (v) Comments on the Opinion Stephenst (2001) made a positive observation on the judgment and described by announcing, the protections of „right to life‟ under the International Covenant on Civil and Political Rights (ICCPR), is equally accessible in armed conflict, the Court effectively settled a 50 year-old theoretical deliberation regarding the application of the law of armed conflict and international human rights law to the battlefield and underscored the common humanitarian principles. Falk (1997) opined that a historic opportunity was presented for development of international law. He also urged it brought to four basic differences in normative appreciation between the contextualists and the prohibitionist over the legal future of nuclear weapons (Falk 1997: 70). He points out that the absence of a clear majority reflects the Court's failure fully to resolve the legal status of nuclear weapons. David (1997) supports that „never before had the Court been asked to address a legal problem that had lain so close to the heart of international relations over the preceding 50 years.‟ Matheson (1997: 417) does not believe that the Court's opinions suggest a need for any change in the nuclear posture and policy of the United States or the North Atlantic Treaty Organization (NATO) alliance and suggested that may also have significant and helpful effects on the application of the law concerning the use of force in more conventional circumstances. Mallavarapu (2007) positively asserted that even the Court did not make a clear and categorical statement prohibiting the use of these weapons of mass destruction the Court did indeed affirm that principles and rules of armed conflict apply under all circumstances. (3) Privileges and Immunities of the UN Officials (i) Background In1998 the United Nations Economic and Social Council (ECOSOC) submitted a question on the applicability of Article VI, Section 22 of the 1946 Convention on the Privileges and Immunities of the United Nations (General Convention)' to the Court for 100

advisory opinion. In November 1995, in an interview, in the magazine International Commercial Litigation, Dato' Param Cumaraswamy a Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers commented on investigation into complaints that a number of corporations had influenced the courts in Malaysia to order decisions in their favor. Some plaintiffs who received such favorable rulings filed defamation suits against Cumaraswanmy for defamation. Four Companies asked him for damages amounting to M$30 million (approximately US12 million each), 'including exemplary damages for slander' (ICJ Reports 1999: 67). The UN Secretary-General proclaimed immunity and certified that the alleged defamatory words were spoken in the course of the performance of Cumaraswamy's mission for the United Nations. The Malaysian courts rejected the claim on the legal immunity. Therefore ECOSOC request for an advisory opinion from the International Court of Justice on „the legal question of the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations in the case of Dato' Param Cumaraswamy, taking into account the circumstances set out in paragraphs 1 to 15 of the note by the Secretary-General', and on the legal obligations of Malaysia in this case‟ (ICJ Reports 1999: 64). The Court received statements from the UN SecretaryGeneral and by Costa Rica, Germany, Italy, Malaysia, Sweden, the United Kingdom and the United States, Luxembourg and Greece. In the proceedings, except Malaysia, all other sates strongly supported the Special Rapporteur's immunity. After two round of oral hearing the Court rendered the opinion. The Court noted that Malaysia became a party to the General Convention on October 28, 1957, without attaching any reservation to Section 22 or any other provision. The Court then considered whether the immunity provided for in Section 22(b) of the General Convention applied to Cumaraswamy in the specific circumstances of the case. This called for an examination whether the words used by him in the interview were spoken in the course of the performance of his mission, and whether he was therefore immune from legal process with respect to those words.

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(ii) The Court Majority and Dissenting Views The Court recognized the authority of Secretary-General, as the chief administrative officer of the Organization, had authority and responsibility to exercise the necessary protection where required (ICJ Reports 1999: 84) and it was clear that the SecretaryGeneral informed the Government of Malaysia of his finding that Cumaraswamy had spoken the words quoted in the article in International Commercial Litigation in his capacity as Special Rapporteur of the Commission and that he consequently was entitled to immunity from "every kind" of legal process. The Court explained that the difference between the United Nations and Malaysia arose because of the failure of the Government of Malaysia to notify the competent Malaysian judicial authorities of the SecretaryGeneral's assessment that Cumaraswamy had spoken the words at issue in the course about the performance of his mission therefore he was entitled to immunity from legal process. With one dissenting (judge Koroma) the Court found that (ICJ Reports 1999: 90): Cumaraswamy was entitled to immunity from legal process…and shall be held financially harmless for any costs imposed upon him by the Malaysian courts, the Government of Malaysia has the obligation to communicate this Advisory Opinion to the Malaysian courts, in order that Malaysia's international obligations be given effect and Dato' Param Cumaraswamy's immunity be respected .

Only one member of the Court judge Koroma rendered dissenting opinion. He pointed out three primary reasons for his dissenting opinion, firstly did not find justification for advisory opinion based on the General Convention on the Privileges and Immunities of the United Nations. Secondly, he found peculiarity in general principles of justice and finally the circumstances of this case were very unusual that made the whole picture very unclear. Koroma argued against the key base of the Court‟s majority decision that section 30 of the Convention on the Privileges and Immunities of the United Nations did not authorized determining power to, the Secretary- General of the United Nations, decide whether words were spoken in the course of the performance of a mission for the United Nations within the meaning of Section 22 (6) of the Convention. He also questioned the 102

consideration of the note, by the Secretary-General, by which ECOSOC changed the question and requested the Court to render an advisory opinion (ICJ Reports 1999: 113). He concluded (ICJ Reports 1999: 116): The question whether the Convention is applicable to Mr. Cumaraswamy is one of mixed law and fact, and would have required the Court not only to undertake an interpretation of the Convention but an enquiry into the facts before arriving at its conclusion. It therefore does not seem sufficient for this case for the Court to conclude that the Convention is applicable to Mr. Cumaraswamy based on the formality of his appointment as Special Rapporteur of the Human Rights Commission, or on the fact that he may have been entrusted not only to do research but also with the task of monitoring human rights violations and reporting on them. With respect, notwithstanding his appointment or the fact that he has been entrusted with a mission by the United Nations, this does not of itself allow a special rapporteur to operate outside his mandate, and whether or not the Special Rapporteur was acting within the scope of his mandate, given the facts and circumstances of this case, ought to have been enquired into for the Court to be in a position to conclude that the Convention is applicable to him. It is also my considered view that this requirement is not vitiated or become superfluous by the fact that it has become standard practice for special rapporteurs of the Human Rights Commission to have contact with the media. Having contact with the media cannot be regarded as a licence for a special rapporteur to operate outside his mandate; whether or not the Special Rapporteur did so or not in this particular case and for the purposes of the Convention is a matter to be determined by the Court before it can conclude that the Convention is applicable.

(4) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (i) Background The Israel-Palestine conflict is a well-known and long standing one in international politics. Palestine was part of the Ottoman Empire. At the end of the First World War, as a case a mandate, Palestine was given to Great Britain by the League of Nations as a mandate. The territorial boundaries of Palestine were laid down by various instruments, in particular on the eastern border by a British memorandum of 16 September 1922 and an Anglo-Transjordanian Treaty of 20 February 1928. Following the unilateral formation of the state of Israel in the Palestine territory in 1948, a war broke out between Israel and its Arab neighbours. Mediation by the United Nations helped bring between Israeli and Arab forces (also drawn that line was the Green Line) in 1949. In the next armed conflict of 1967, Israeli forces occupied al1 the territories including the West Bank and the city of Jeruslam, lying to the east of the Green Line. In the same year Security Council through a 103

famous and unanimous resolution (Resolution 242 (1967)) called for the „withdrawal of Israel armed forces from territories occupied in the recent conflict‟, and „Termination of al1 claims or states of belligerency‟. Israel not only failed to comply with the resolution but also carried out further attacks in these occupied territories and changed the status of the City of Jerusalem into Israel new capital. The present dispute is concerned with the construction works that Israel describes as a "security fence" launched to obstruct the movement of Palestinians. The construction of the wall by Israel aimed to separate the people of Palestine from the Israeli territory. On completing of the construction of the wall in, 2003 the Israeli Defence Forces issued orders establishing the part of the West Bank lying between the Green Line and the wall as a "Closed Area". Thousands of Palestine residents of this area could no longer remain in it, nor could non-residents enters it, unless they held a permit or identity card issued by the Israeli authorities (ICJ Reports 2004: 175). United Nations bodies clearly disapproved these measures according to the report of the Secretary- General, most Palestine residents received permits for a limited period whereas Israeli citizens, Israeli permanent residents and those eligible to immigrate to Israel moved freely within the Closed Area without a permit. Ninety percent area of this barrier was fenced and the remainder 10 percent was covered by concrete wall. The UN General Assembly found commencement and continuation of construction by Israel in the Occupied Palestinian Territory, including in and around East Jerusalem, was in clear departure from the Armistice Line of 1949 (Green Line). This act also concerned the confiscation and destruction of Palestinian land and resources, the disruption of the lives of thousands of protected civilians. Israel rejected the General Assembly‟s stand. The General Assembly denounced the Israeli refusal to stop its plans. In the Tenth Emergency Special Session, the Assembly referred the question to the Court for advisory opinion in December 2003 (ICJ Reports 2004: 141): What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?

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(ii) Statements and Objections by Countries Forty nine written statements were submitted before the Court in the fixed time limit. The Secretary-General submitted a sizeable dossier to the Court, containing detailed information on the route of the wall and its humanitarian and socio-economic impact on the Palestinian population. The United States and Israel had opposed the request for an advisory opinion from the beginning and refused to participate in the proceedings at the Court except to voice objections to the jurisdiction of the Court and its discretionary ruling to respond to the General Assembly. On the objection of the admissibility of the question on the basis of uncertainty of the question, the Court asserted that lack of clarity in the drafting of a question does not deprive the Court of jurisdiction and rationally, such uncertainty needed explanation and interpretation. Objection on the political nature of question was also rejected by the Court on the above discussed reasons and noted that a legal question also could have political aspects. The Court addressed the question whether it possesses jurisdiction to give the advisory opinion requested. Israel argued that, in the active engagement of the Security Council with the situation in the Middle East, including the Palestinian question, the General Assembly acted ultra vires under the Charter when it requested an advisory opinion on the legal consequences of the construction of the wall in the Occupied Palestinian Territory (ICJ Reports 2004: 148). The Court observed that Article 10 of the Charter provides the General Assembly a competence relating to "any questions or any matters" within the scope of the Charter. However, the Court took the reference of Article 12 paragraph 1, of the Charter provides that: „While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests‟ (emphasis added). The Court justified the Assembly aspect and decided that „a request for an advisory opinion is not in itself a "recommendation" by the General Assembly "with regard to [a] dispute or situation" (ICJ Reports 2004: 145-48).

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The Court also made reference to resolution (377 A (V) that provides, in the case of failure of the Security Council to exercise its primary responsibility for the maintenance of international peace and security (because of unanimity of permanent members), the General Assembly would be consider matter and make appropriate recommendations. The Court observed that during the convened of the Tenth Emergency Special Session the Council had been unable to take a decision on „the case of certain Israeli settlements in the Occupied Palestinian Territory‟ due to negative votes of a permanent member and there existed a threat to international peace and security. The Court did not find any significance in the allegation of procedural irregularities that alleged the Tenth Emergency Special Session had been convened in April 1997 and reconvened 11 times since then. The Court observed that earlier the Seventh Emergency Special Session of the General Assembly had been convened on 22 July 1980 and was subsequently reconvened four times. Notably, validity of the resolutions was not disputed nor had the resolutions adopted during the Tenth Emergency Special Session challenged (ICJ Reports 2004: 152). The Court reaffirmed its dismissal of a „political questions doctrine‟, repeated the arguments of

its various earlier judgments, and rejected the view that it had no

jurisdiction because of the political character of a question put before it (ICJ Reports 2004: 154): [T]he Court cannot accept the view, which has also been advanced in the present proceedings, that it has no jurisdiction because of the „political‟ character of the question posed. As is clear from its long standing jurisprudence on this point, the Court considers that the fact that a legal question also has political aspects, “as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a “legal question” and to deprive the Court of a competence expressly conferred on it by its Statute‟ (Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J, Reports 1973, p. 172,para. 14). Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by international law.

It was argued that the Court should not exercise its jurisdiction in the present case because the request concerns a contentious matter between Israel and Palestine therefore it was the matter of contentious case whereas Israel had not agreed to the exercise of that 106

jurisdiction. The Court observed that the „lack of consent‟ to the Court's contentious jurisdiction by no manner obligated to the Court's jurisdiction to give an advisory opinion. The Court took the reference of „Interpretation of' Peace Treaties with Bulgaria, Hungary and Romania’ case that explained that (ICJ Reports 1950: 71): The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court's reply is only of an advisory character: as such, it has no binding force.

The requested opinion, according to Israel, needed a lot of facts and enquiry that would construct possibility to speculate about essential facts and make assumptions about arguments of law. Israel had chooses not to address the merits and had clarified challenged with factual issues impossible to clarify in the present proceedings. The Court observed that the question whether the evidence available to it is sufficient to give an advisory opinion. The Court found that the dossier includes several reports based on onsite visits by special rapporteurs and competent organs of the United Nations including the Secretary-General written statement and plentiful written statements contain sufficient information relevant to a response to the question put by the General Assembly. Some participants challenged the case on the basis of „lack of useful purpose‟. It was argued that this request did not possess any useful purpose therefore using its discretionary power the Court should reject the opinion. The Court's clarified that advisory opinions has the purpose of furnishing to the requesting organs the elements of law necessary for them in their action. The Court repeated that it cannot decline to answer the question on the ground of „lack of useful purpose‟. (iii) Opinion of the Court The court found that the term used in the question by GA, „wall‟ as complex construction. Instead of term „wall‟, the other terms was used in the statements, by Israel (fence) and by the Secretary-General (barrier). The Court preferred the terminology used by the General Assembly. The question essentially concerned with „the legal consequences of the construction of the wall in the Occupied Palestinian Territory‟ and to

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determine such consequences it was necessary to determine that whether or not the construction of that wall breach international law. The Court decided to examine this matter under customary international law as reflected in Article 42 of the Regulations Respecting the Laws and Customs of War on Land. The court observed that territory is considered occupied when it is actually located under the authority of the hostile army, and the occupation spreads only to the territory where such authority had been established (ICJ Reports 2004: 167). As discussed above the Green Line and the former eastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan therefore these were occupied territories and Israel had the status of occupying Power (ICJ Reports 2004: 167). The Written Statement of the Secretary-General claimed during first part (Phase A) of work Israel had constructed 150 kilometers wall as on 31 July 2003, 190 kilometers in the second Phase B and Phase C was in progress. The Court noted, with regard to humanitarian law, that even though Israel is not a party to the Fourth Hague Convention of 1907 but took reference of the judgment of International Military Tribunal of Nuremberg that had found that the rules laid down in the Convention were recognized by al1 civilized nations, and were regarded as being declaratory of the laws and customs of war‟, which clearly declared the Hague Regulations as a part of customary law. The Court also found Article 154 of the Fourth Geneva Convention which concerns „Military authority over the territory of the hostile State‟, was particularly relevant in the case (ICJ Reports 2004: 172). Considering Article 2 of the Fourth Geneva Convention the Court noted that, „the first paragraph of that Convention is applicable when two conditions are fulfilled: that there exists an armed conflict (whether or not a state of war has been recognized); and that the conflict has risen between two contracting parties‟ the Court found both conditions present in the Palestine- Israel problem. Further, the Court has considered the judgment,

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dated 30 May 2004, of the Supreme Court of Israel that also found that (ICJ Reports 2004: 176-77): The military operations of the [Israeli Defence Forces] in Rafah, to the extent they affect civilians, are governed by the Hague Convention IV Respecting the Laws and Customs of War on Land 1907 . . . and the Geneva Convention relative to the Protection of Civilian Persons in Time of War 1949.

On the basis of these observations the World Court found that the Fourth Geneva Convention was applicable in any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties. Further the Court noted that the Geneva Convention is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories (ICJ Reports 2004: 177). The Court found that „the protection offered by human rights conventions does not cease in case of armed conflict save through the effect of provisions for derogation of the kind to be found in Article 4 of the ICCPR. Court also noted that the ICCPR was applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory although the same could not be said about the applicability of the International Covenant on Economic, Social and Cultural Rights (ICESCR) (ICJ Reports 2004: 178). Israel explained that the sole purpose in building the wall and the barrier was a temporary measure and asserted that the President of the Palestine Liberation Organization (PLO), Yasser Arafat, in a letter recognized „the right of the State of Israel to exist in peace and security‟(exchange of letters of 9 September 1993). But the Court concluded on the basis of several resolutions and reports that – „the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law‟ (ICJ Reports 2004: 184). Further the Court stated that (ICJ Reports 2004: 193-94,201): the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order. The construction

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of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments. [Therefore]The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law.

The Court also asserted that „Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem and directed all States not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction. Finally the Court found jurisdiction on the request and concluded following opinions (ICJ Reports 2004: 201-02): The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law ; Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith al1 legislative and regulatory acts relating thereto; Israel is under an obligation to make reparation for al1 damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem; Al1 States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; al1 States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention; The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due account of the present Advisory Opinion.

Interestingly, no member of the Court delivered dissenting opinion while seven judges rendered separate opinion. Judge Koroma did not accept the legality of occupying power and added that (ICJ Reports 2004: 204): the construction of the wall has involved the annexation of parts of the occupied territory by Israel, the occupying Power, contrary to the fundamental international law principle of the nonacquisition of territory by force. The Court has confirmed the Palestinian territories as occupied territory and Israel is therefore not entitled to embark there on activities of a sovereign nature which will change their status as occupied territory. The essence of occupation is that it is only of

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a temporary nature and should serve the interests of the population and the military needs of the

occupying Power. Accordingly, anything which changes its character, such as the construction of the wall, will be illegal.

Disagreeing with some part of opinion Judge Buergenthal stated (ICJ Reports 2004: 240): Since I believe that the Court should have exercised its discretion and declined to render the requested advisory opinion, 1 dissent from its decision to hear the case. My negative votes with regard to the remaining items of the dispositif should not be seen as reflecting my view that the construction of the wall by Israel on the Occupied Palestinian Territory does not raise serious questions as a matter of international law. I believe it does, and there is much in the Opinion with which I agree. However, I am compelled to vote against the Court's findings on the merits because the Court did not have before it the requisite factual bases for its sweeping findings; it should therefore have declined to hear the case. In reaching this conclusion, I am guided by what the Court said in Western Sahara, where it emphasized that the critical question in determining whether or not to exercise its discretion in acting on an advisory opinion request is

(iv) Two Contrarian Comments Ruth Wedgwood (2005: 57) found that the Court asserting that „Israel does not claim that the attacks against it are imputable to a foreign State‟ unsustainable. In this view, the Court could not deliver finding, since Israel did not make any submission on the merits, and thus did not "waive" any claims. Wedgwood hardly visualized why the Court felt pressed in its advisory opinion summarily to reject the relevance of Article 51 in this difficult situation when the protection of civilians against deliberate attack is a fundamental rule of international humanitarian law (Wedgwood 2005: 61). In contrarian view, Ardi Imseis (2005: 118) declined, the advisory opinion as „highly important in setting forth and affirming general legal principles and duties regarding not only Israel's construction of the wall in the OPT, but also its prolonged occupation of that territory and continued frustration of the right of the Palestinian people to self-determination.‟ (5) Legality of Unilateral Declaration of Independence in respect of Kosovo In 2008 the Provisional Institutions of Self Government of Kosovo declared independence from Serbia. This act of declaring unilateral independence received mixed reactions from the Members of the United Nations. The General Assembly unable to decide whether the declaration consistent with the existing international legal order, and requested the World Court to render an advisory opinion on the following question:

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„Is the unilateral declaration of independence by the Provisional Institutions of SelfGovernment of Kosovo in accordance with international law?‟

Compared to other questions discussed in the present chapter, this question apparently is clearly formulated since the nature of the question is narrow and specific seeking for the Court‟s opinion on whether or not the declaration of independence is in accordance with international law. The Assembly did not ask about legal consequences nor did it ask whether or not Kosovo has achieved statehood or not. Thirty six states submitted their statements to the Court. The court took account of advisory opinion of „Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory‟ as well as other precedents and fond jurisdiction on the issue to render advisory opinion. To be sure, the Court acknowledged that the circumstances of the wall question and the Kosovo independence question were not similar. On the one hand the former matter had been under active consideration by the General Assembly for several decades, the situation in Kosovo had been the subject matter of both the Security Council and the Assembly. The Assembly adopted at least 6 resolutions on the human rights situation in Kosovo. In 1999, the Security Council adopted resolution no. 1244 (1999) that authorized the creation of an international military presence (known as KFOR) and an international civil presence (the United Nations Interim Administration Mission in Kosovo, UNMIK) and laid down a framework for the administration of Kosovo (ICJ Reports 2010: 419). The declaration of independence was adopted by Kosovo at a meeting held on 17 February 2008 by 109 out of the 120 members of the Assembly of Kosovo, including the Prime Minister of Kosovo and by the President of Kosovo (who was not a member of the Assembly). (i) Court’s Opinion The Court asserted that that one of the major developments of international law during the second half of the twentieth century has been the evolution of the right of selfdetermination‟ and considered that general international law contained no applicable prohibition of declaration of independence‟ thus „the declaration of independence of 17 112

February 2008 did not violate general international law‟ (ICJ Report 2010: 438). The Court also found that Security Council resolution 1244 (1999) did not bar the authors of the declaration of 17 February 2008 from issuing a declaration of independence from the Republic of Serbia therefore, the declaration of independence did not violate Security Council resolution 1244 (1999). However, In his dissenting opinion judge Koroma asserted that „international law does not confer a right on ethnic, linguistic or religious groups to break away from the territory of a State of which they form part, without that State‟s consent, merely by expressing their wish to do so.‟ Judge Bennouna ín his dissenting argued that „in law, it is not merely because an institution has adopted an act exceeding its powers (ultra vires) that the legal bond between the institution and the act is broken. In such a case, the institution must be considered to be in breach of the legal framework that justifies and legitimizes it.‟ The further strongly rejected the majority view and stated- „Such declarations are no more than foam on the tide of time; they cannot allow the past to be forgotten nor a future to be built on fragments of the present‟ (ICJ Reports 2010: 514). Judge Skotnikov argued that „the Court should have used its discretion to refrain from exercising its advisory jurisdiction in the rather peculiar circumstances of the present case. Never before has the Court been confronted with a question posed by one organ of the United Nations, to which an answer is entirely dependent on the interpretation of a decision taken by another United Nations organ‟ (ICJ Reports 2010: 515). (ii) Short Comments Falk (2011) describes this advisory opinion as surprising. He criticized the view that the Court behaved in a political manner, submitting to geopolitical wishes by rather surprisingly validating the Kosovo declaration, however seeking to prevent wider policy effects (Falk 2011: 50). A professor from Kosovo Muharremi (2010) complained that the opinion was silent on many issues as remains silent on the validity or legal effects of the recognition of Kosovo as an independent state by other states. It did not deal with the question whether international law creates a positive entitlement for unilateral declaration

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of independence, and the Court‟s opinion does not address the extent of the right of selfdetermination and the existence of a right of „remedial secession‟.

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Chapter V OVERALL ASSESMENT

I The discussion in the preceding chapters dwelling on the organizational, procedural, functional, and historical aspects of the functioning of the World Court yields a set of concluding observations by way of overall assessment of the particularities and peculiarities in the way the Court undertook its job in the past nearly two decades- also called the Post-Cold War era. The Court is conceived as the judicial organ of the United Nations helping the State Parties resolve their disputes of legal nature peacefully and advise the World Body on legal questions. Since legal cannot be clearly differentiated from political, it goes without saying that the World Court‟s evolution is inseparably linked to currents and cross currents in world politics, which work both as impediments and opportunities. The Cold War period had been associated with frictions and divisions in the international system, with consequences for the Court. The study discusses three phases in the Cold War era that contrast the case load as well as the response of the Court with reference to new case entries and procedural changes in the structure of the Court. The Court had 35 cases in its docket during the first phase of 14 years. The United States, United Kingdom and Western European countries brought nearly two thirds of those cases. The major applicants were UK and USA. They filed more than one third of total cases. More than half the cases (nine) were against the then Soviet Union and its allies. As a result the ICJ was turned into an extension of the cold-war politics. The subject matter of a large number of cases against them was Aerial Incident. In none of those cases, a resolution became possible. A possible explanation why no other aerial incident case was brought in the years that followed lies in the surmise that states have learned to understand the doctrinal limitation of the Court and hence desisted from bringing frivolous cases. 115

One can easily notice the impact of international system, the Soviet and its allies did not participate in the Court „willingly‟. They were the primary target of the Western countries and mostly cases were instituted against them. Ideologically, socialist states did not recognize the authority of the Court‟s and never filed any case in the first phase of the Cold War period. All these countries kept themselves far away from the binding judicial system right from the start. Therefore, it was not surprising that all the cases against socialist states finished unresolved when the Court did not find any jurisdiction and dismissed all the cases. During the cold war period entire Soviet bloc, East-European socialist states, shrinking from any acceptance of interference with their sovereign rights and rejected the idea of „compulsory jurisdiction (optional clause)‟ in principle and practice. On the other hand, other major powers such as USA and France, for different reasons withdrew or did not renew their previous acceptance of this clause. Even though some developing and least developed countries instituted cases in the Court but none of them was against any developed states. The first phase kept the Court by with the busiest time of cold war in reference to new case entries in the Court‟s General List. In contrary to the first part of the Cold War phase where the Court was the busiest, the twenty year period constituting the „second phase‟ (1961 to 1980) of the Court was a wash-out for the Court. In this period, only 13 new cases were filed. Nearly three fourths of these cases comprised subject matters of continental shelf (4 cases), fisheries jurisdiction (2 cases) and nuclear test (2 cases). The USA and the UK have participated as an applicant only in two cases but the European countries came to the fore. This was also the period when the Court‟s reputation was dented after controversial judgment of two cases of South West Africa. The court's treatment of these contentious Cases specifically provoked much dissatisfaction in many spheres and caused serious prejudice to the court's standing. A notable aspect here is the reluctance of „Western World‟ to institute cases against a country of the Soviet bloc. There was no case in this period against Soviet bloc or by a Soviet bloc country. This was the period when the cold-war rivalry began to ease. After the Cuban Missile Crisis in October 1962, the brief spell of détente till the end of 1970s clearly had a bearing. 116

The problems of no law or uncertain law came up in Nuclear Test cases when, two Pacific region countries (Australia and New Zealand) participated in ICJ for the first time against France to seek prohibition of nuclear tests in the Pacific Ocean. The case prompted voluntary declaration by France that there will be no further nuclear tests in the Pacific Ocean. The Court did not declare any substantial judgment because the Court did not find „any object‟ to do so after France‟s voluntary declaration. The second phase period witnessed debate on structural changes in the Court. After a long debate in 1978 the Court adopted revised rules to make proceedings easy and simple (such as provisions to establish chamber). Together with the changing international situation the changes in the procedures made in the Courts case law robust. In a remarkable twist, the historic judgment on Military Activities in and against Nicaragua changed the perceptions of developing states, in contrast to the falling trust among developed states in the efficiency of the Court. The third phase, in a way, foretold the trends to come in the Post-Cold War period. In another domain of the Court‟s performance during the Cold War era, the UN submitted comparatively large (20) requests for advisory opinions of the Court. The subject matters of most of requests organizational issues such as interpretation of peace treaty, admission of states to UN, expenses of the organization etc. Although some requests bare importance, it should be noted that the Court‟s opinions could not make any significant impact to the policies and preferences of various organizations and their member countries. In 1990, 51 out of 163 member states accepted the compulsory jurisdiction clause this number increased by 67 out of 193 member states. II In the post-Cold War period only six requests were initiated by different organs of the UN but they generated widespread interest across the World. The request to identify the legality of the use of nuclear weapons has started a new discussion although the Court‟s opinion was not welcomed by a large part of world. The global civil society and antinuclear non–government organizations did extensive advocacy work in the World Health

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Organization and outside in favor of seeking the advisory opinions on legality of use of nuclear weapons avoided conclusive statements on the issue raised. It stated nuclear weapons are allowed in self defence and at the same time it expressed “moral” position against nuclear war. By taking such ambiguous position, the Court lost an opportunity to open a new chapter in its history. Similarly in the matter of “Kosovo‟s” unilateral declaration of independence the Court chose to play safe. On the other hand, the Court did not hesitate to opine categorically an equally sensitive issue, the Israeli construction of a wall in the Occupied Territory of Palestine. In a notable dimension, a few members delivered dissenting opinions (such as those delivered by Judge Weeramantry, Koroma and others) thereby yielding insightful and quite persuasive arguments on different issues. In contrast of small docket of advisory requests, regarding contentious cases, the caseload of the ICJ seems to have been transformed in the post-Cold War period. The World Court is now busier than ever. It has more cases, increasingly involving questions of human rights, maritime boundary, military and paramilitary activities, compensation for the environmental effects of colonial era mining operations, dispute about dam and bridge projects across straits, question of land and insular sovereignty, diplomatic and consular immunities, international criminal law, whaling and so on. The diversity of the questions enlarged and at the same time the number of cases also increased. The important fall out of this phenomenon is the consistency in the case docket. There is no big fluctuation (except year 1999 when on single issue 10 cases were brought before the Court) in the new case entries. The change of the initiator of cases can also be seen in increasing number of non-western countries as applicants. This is entirely a different situation, in comparison to the Cold War period. Only one case was filed by the any developed world against any developing world. Besides, the total number of cases initiated by developed world also decreased. During the cold war the involvement of states that were as a party in cases before the ICJ (either as a plaintiff or defendant), mostly related from Europe and North and Central American region. In the post-Cold War the member of African countries filing cases (as plaintiff) before the court tripled from 7 to 21. On the other hand developed countries 118

(Western Europe, USA, Canada, Australia) participation as plaintiff reduced in post-cold war from 37 to 10. Litigants from Asia and North/Central America reflected a marginal increase whereas number of cases involving countries from South America declined marginally. European countries interest in the court remained largely intact. The most populous and underprivileged part, Asia is still less interested. The Court has seen various new kinds of cases during last one decade. New nontraditional matters are making the Court broadened its expertise beyond the traditional subjects like border disputes. The Court is taking comparatively more time to solve the traditional territorial and maritime boundaries disputes in compare with other issues. In terms of the total number of member states that accepted compulsory jurisdiction of ICJ from 1990 to 2011, there is 25 percent increase and 19 percent increase in total number of membership of statute. On the other hand during the year 1970-1990, this stood at 15 and 26 percent respectively. It may be added that acceptance of compulsory jurisdiction has come with a range of qualifications and reservations. The two most important reservations are relating to other methods of pacific settlement and exclusion of domestic jurisdiction. III Assessment of challenges of the Court is possible using two approaches. On the one hand the analysis is possible on the substance of the Court‟s practices and procedures; this may be addressed by the Court itself. On the other hand inadequacies of the ICJ Statute are equally important, which is to some extent political task in nature as the amendments to the statue are possible only with the initiative of the political bodies of the United Nations. Article 34 (1) provide jurisdiction of the Court in contentious cases only on states, limited the accessibility of the Court in the international system in gross dissonance with the rise of non-state actors. Although the Court recognizes to the legal personality of international organizations, the need for the amendment in Article 34 to allows direct jurisdiction of the Court to the international organization is timely. This is a matter of increasing 119

significance as organizations of economic integration such as the European Community are becoming parties to major international treaties and conventions. In very few conditions the Court has the compulsory jurisdiction on the disputes and the respondent can take help the claiming lack of jurisdiction, for even in post-cold war time about half of cases did not progress to final conclusion on this ground. In the case of the World Trade Organization (WTO), participation in the dispute settlement process is compulsory. Once the procedure has been initiated by the applicant, it cannot be stopped by the respondent. The statue of the Court lacks this kind of compulsory jurisdiction. To some extent, the possible participation of NGOs in advisory proceedings is a matter within the control of the Court. It is nonetheless necessary that the court protects itself from all unnecessary increase in paperwork. But the approach of the Court towards communication made by the Non-Governmental Organizations is not praiseworthy. In an effort to change the attitude the Court introduced Practice Direction XII in 2004. This allows NGOs to submit a written statement in an advisory case. These statements are not considered part of the case file but they are treated as publications voluntarily available and can for that reason be referred to by States in their statements to the Court. Some scholars perceive it has a half-way response avoiding bold changes in procedures. Another criticism of the court relates to the magnitude of its procedure. As the study established, the Court allows, for the written pleadings, long time lines to the parties. The reason for these long periods of time is the Court's sensitivity to the sovereign rights of the parties. Through changes in the ICJ Rules and of the Practice Directions, the court has tried to accelerate the written proceedings and to shorten the oral pleadings, but it has not had much success. There is no attempt to control how a country lays down its written case and what documents and annexes are appended to its pleadings. For the court to make any attempt to introduce any change in this order of things would mean a fundamental reformation of the whole current concept of international litigation. The geographical location of the Court has its own importance but the Court on June 20, 1969 took the initiative in proposing to the General Assembly an amendment to article 22

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which would make it possible for the General Assembly to establish the seat of the Court in a place than The Hague on the recommendation of the Court. Two reasons may have influenced the initiative one was purely physical: the inadequacy of the Peace Palace in which the Court had its working offices. The other was of psychological character. Referring to changes in world conditions since 1922, the Court argued: "The special qualities attached to The Hague in 1922 are less distinctive now and the importance of other places as legal centers has been enhanced." It is moot whether the Court had Geneva or New York City in mind (Gross 1986). The proposal failed to progress any further. Human and financial resources play a role. Some UN reports and documents proclaimed the adverse impact on commencement of case proceedings because of the lack of legal expertise or funds. Human resource of any country is another important factor which impacts not only desire of any country to file cases but it shows the capacity of the state. Developing countries tend to have a much greater proportion of non-nationals in their legal teams pleading the case than developed countries. Retaining lawyers on the international forums is not only expensive but may also be politically difficult. Division of the World in different legal systems is another essential reason of underperformance of ICJ. States with civil law systems are more likely to accept the compulsory jurisdiction of the International Court of Justice than states with common law or Islamic law systems. As studies provide evidence civil law system is more similar to ICJ procedures than common law or Islamic law system. That perhaps a reason why the Arab world (except Libya) is enthusiastic less ICJ In conclusion, it may be observed, although competence of the court is limited but it serves as the world‟s highest judicial organ and the role and importance of the Court remain relevance in view of the fact that it is the only judicial organ that possess „general‟ jurisdiction in nature contrary to specific jurisdiction of other international Courts.

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