The impulsion to create world court to settle the international disputes developed as a result of the atmosphere generated by the Hague conferences of 1897 and 1907.The First Hague Conference 1897 consisted of three conventions and one of the conventions was about pacific settlement of international disputes.This convention established Permanent Court of Arbitration which exists to this day and second Hague Conference of 1907 also led to signing of thirteen conventions and one of the Conventions was on pacific settlement of international disputes which expanded earlier convention of 1897 on pacific settlement of disputes .Both these conventions are founding documents of Permanent Court of Arbitration (PCA) and this was landmark step towards the consolidation of an international legal system though this PCA was neither permanent nor the court in the true sense of the term. Nothing substantial happened as regards setting up of World Court till the culmination of First World War. While the war was going on, President of United States Woodrow Wilsonappointed “The Inquiry” (Committee of experts which consisted of 150 political and social scientists) to prepare materials regarding economic ,social and political facts likely to come up in discussions during the Peace Conference following World War I.The Inquiry provided various recommendations to achieve lasting peace. Using these recommendations, Woodrow Wilson addressed joint session of Congress on January 08, 1918 and presented “The Fourteen Points” and Point 14th proposed, A general association of nations must be formed under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small States alike.This association of nations later came to be known as League of Nations. The Paris Peace Conference was held in January, 1919 at Versailles to establish the terms of peace and these Fourteen Points were used as basis for negotiating the Treaty of Peace with Germany also called Treaty of Versailleswhich terminated the war between Germany and most of the Allied Powers. This treaty was signed on June 28, 1919and articulated the compromises reached at the Paris Peace Conference.The Covenant of the League of Nations was integrated into this Peace Treatyand thePart I of the treaty dealt with Covenant of League of Nations. The Covenant consisted of a preamble and 26 articles and Article 14 talked about the establishment of a Permanent Court of International Justice (PCIJ), competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court was given the power to give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly. The Statute of PCIJ was accepted in 1920 which brought the Court into existence but PCIJ first sat on 30 January 1922. The PCIJ dealt with 29 contentious cases between States, and delivered 27 advisory opinions between 1922 and 1940.The Court could not function between 1941-44 as World War II had started and Netherland was invaded by the Germany. By 1943 it had become clear that new international organisation would be constituted for the maintenance of international peace and security. On October 30,1943 the governments of United States of America,United Kingdom,the Soviet Union ,and China came up with joint four-nation declaration also called Moscow Declaration .The point four of the seven point declaration stated that the governments of these four countriesrecognize the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving states, and open to membership by all such states, large and small, for the maintenance of international peace and security. Later in 1944, these four nations four nations submitted a proposal for the structure of the new organization to all the allied governments at Dumbarton Oaks. According to these proposals the United Nations would consist of four organs, viz. General Assembly, Security Council, Secretariat and International Court of Justice.On 25 June 1945, the delegates of 50 nations met in the San Francisco and signed UN charter which came into force on 24th October, 1945. By a resolution from the League of Nations in April, 1946, both the Permanent Court of International Justice and the League ceased to exist and were replaced by the International Court of Justice (ICJ) and the United Nations, respectively. The ICJ is the principle judicial organ of the United Nations and functions in accordance with the provisions of the Statute of International court of Justice which is an integral part of UN charter and is annexed with it. Article 93 of the Charter states that all members of the United Nations are ipso facto parties to the Statute of the ICJ and it also states that a state which is not a member of the UN may become a party to the Statute on the conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. It is pertinent to mention that Article 94 of the Charter lays down that each member of the UN undertakes to comply with the decision of the ICJ in any case to which it is a party and if any party fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations of decide upon measures to be taken to give effect to the judgment. In addition to this ,there is provision for advisory opinion by the World Court as well,i.e., Article 96 stipulates that General Assembly or the Security Council may request the ICJ to give an advisory opinion on any legal question.The other organs of the UN and specialised agencies have also been authorised to make a request for advisory opinion provided that there is General Assembly authorisation and request can be made for legal questions arising within the scope of their activities. The Chapter IV, Articles 65–68 of the Statute of the International Court of Justice covers advisory opinions. Strictly speaking, the Court’s opinion is not given to the States, but only to the organs entitled to do so under UN Charter. However, States are permitted, along with international organisations to participate in the proceedings before the Court. Individuals and other non-state entities have no locus standi to seek advisory opinion of the Court. The chapter II of the Statute of ICJ talks about the competence of the Court. When any legal dispute is submitted to the Court,it decides in accordance with international law such disputes and while deciding ,it shall apply ;a)International conventions ,whether general or particular ,establishing rules expressly recognised by the contesting states; b) international custom ,as evidence of general practice accepted as law; c) the general principles of law recognised by civilized nations; d) subject to the provisions of Article 59,Judicial decisions and teachings of the most highly qualified publicists of the various nations,as subsidiary means for the determination of rules of law.In order to avoid a situation of non-liquet, i.e., no law exists or law is silent on the issue, Article 38 para (2) gives power to the Court to decide the case ex aequo et bono if the parties agree thereto i.e.,the power to decide a dispute in accordance with Courts sense of fairness and good conscience, instead of rigorously applying terms of a specific body of law. In addition to this,as per Article 34 of the Statute,only states may be parties in cases before the Court. The international organisations, individuals and corporations cannot bring a claim through contentious litigation before the Court. A State may take up the case of one of its nationals and invoke against another State the wrongs which its national claims to have suffered at the hands of the latter; the dispute then becomes one between States.The Court has jurisdiction in two types of cases: contentious and advisory.In contentious cases. The Principle of consent of litigants (States) is significant in contentious cases.In contentious cases,the Court’s jurisdiction may be classified under three categories: conventional, i.e., by express agreement between the parties; forum prorogatum .i.e., by tacit agreement; and compulsory, i.e., by declaration, accepting the Court’s jurisdiction, vis-à-vis any other State accepting the same obligation. Furthermore, as per Article 59 of the Statute, the decision of the Court has no binding force except between the parties and in respect of that particular case i.e. the Court binds only the parties to the controversy .Thus, common law doctrine of Precedent or state decisis does not apply to the decisions of the ICJ but Article 38(d) authorises the Court to consider its previous decisions and of various nations. If the circumstances so require and it is urgent to preserve the respective rights of either party, the Court shall have the power to take provisional measures in pursuant to Article 41 of its Statute,i.e., there has to be existence of a risk of irreparable prejudice to the rights. Despite of all these provisions, the ICJ’s injunctive provisional measures or orders have not been able to stop open acts of warfare and bring the warring parties to armistice and put an end to genocidal acts. For example, Gambia filed in the Registry of the Court an application instituting proceedings and request for provisional measures against Myanmar government for violation of the Convention on the Prevention and Punishment of the Crime of Genocide.This Application was filed against the acts adopted, taken and condoned by the Government of Myanmar against members of the Rohingya group, a distinct ethnic, racial and religious group that resides primarily in Myanmar’s Rakhine State.On 23 January 2020, the Court made an Order indicating a number of provisional measuresrequiring among other things that Myanmar, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention; take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of such acts; and submit a report to the Court on all measures taken to give effect to the Order within four months, as from the date of the Order, and thereafter every six months, pending a final decision in the case by the Court.Despite of this order, the gross violation of human rights are incessant which necessitates stronger and stricter action by Security Council as that is the last resort now.
“The preliminary measures or final ruling can only become effective if the Security Council along with General Assembly give teeth to ICJ so that it can have its own mechanism to ensure compliance and enforcement of its decisions and for that UN charter needs reform and consensus among all members of United Nations that they have to make ICJ an effective institution.”
The Israel invaded the Gaza Strip on 7 October 2023, immediately after the Hamas-led attackson Israel and since then this conflict continues to escalate and has pushed Gazainto humanitarian crisis. The death toll in Gaza has crossed 39,000 since the inception of war in October, 2023 and over 92,000 people have been wounded, more than 80% population of Gaza strip got displaced, there is acute food insecurity and the prospects of immediate cessation of hostilities have not receded. On 29 December 2023. South Africa filed an application instituting proceedings against Israel before the International Court of Justice (ICJ), concerning alleged violations by the Israel of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) in relation to Palestinians in the Gaza Strip. South Africa invoked the jurisdiction of the Court under Article 36(1) of the Statute and Article IX of the Genocide Convention, to which both South Africa and Israel are parties. South Africa also sought provisional measures against Israel like suspension of military operations in and against Gaza, desist from the commission of any and all acts within the scope of Article II of the Genocide Convention. The Court passed the order on 26th January, 2024 that Israel must take all measures to prevent the commission of all acts within the scope of Article II of the Geneva Commission by military forces.Israel must submit a report to the Court on all measures taken to give effect to this Order within one month from the date of this Order.The Court order did not call for ceasefire but the closest the Court came was to observe that at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the (Genocide) Convention. In the light of the evidence presented by South Africa and various reports, theCourt foundthat there is plausibility that Israel’s actions fall within the scope of the Convention and on the basis of that Court ordered provisional measures .The provisional measures are legally bindingon Israel. In Para 109 of the Lagrand case (Germany v. United states of America) in 2001,the ICJ reached the conclusion that orders on provisional measures under Article 41 have binding effect .Even under UN Charter Israel is legally obligated to comply with the decisions of the ICJ. Failure to comply with order is violation of international law. As mentioned earlier, in case of non-compliance with Judgment (final ruling) of the ICJ, other party can approach the Security Council which is empowered to take measures to give effect to the judgment. But five permanent members of the Security Council have veto power and that obstructs immediate action in the face of catastrophic humanitarian crisis and currently this is what happened in case of Russia –Ukraine war, Myanmar humanitarian crisis and Israel-Gaza war as preliminary measures orders have not been implemented in letter and spirit even though they are binding as the Court lacks coercive capacity to ensure compliance and due to the use of veto power desired outcome could not be achieved immediately .There must not be any need to turn to Security Council for enforcement of decision of the Court as Security Council was not established for that purpose and in Security Council member states vote for resolution and then non-compliant party is impelled to abide by the emergency measures ordered by the ICJ.But these resolutions get vetoed by a few privileged nations to protect their self-interests and thus turn the Security away from action leading to impasse and deadlock. The Security Council should be resorted to when pacific means of settlement fail and situation aggravates to such an extent that there is immediate threat to the peace, breach of peace or act of aggression. Judicialsettlement is one of the pacific means of settlement of disputes between the countries and is a long road to justice that takesyears to complete which cannot suspend the hostilities in devastating situations like Israel-Gaza, Myanmar and Ukraine –Russia armed conflict which require immediate ceasefire. The preliminary measures or final ruling can only become effective if the Security Council along with General Assembly give teeth to ICJ so that it can have its own mechanism to ensure compliance and enforcement of its decisions and for that UN charter needs reform and consensus among all members of United Nations that they have to make ICJ an effective institution. The main purpose of Security Council is maintenance of international peace and security but this veto power has help-up the Council from performing its predominant and paramount responsibility. It’s high time that Permanent 5 countries of Security Council sit across the table to deliberate and finally decide as to how they could rein in the misuse of veto power and must commit to each other not to obstruct resolutions by use of veto power that enforce ICJ decisions whether preliminary measures or final ruling. The other alternative to this is that the enforcement of Court decision should not be subject to the veto power of the five permanent members of the council and Court must have its own enforcement mechanism. Otherwise, rule based international order which is the common objective of the international community for world peace will always remain a distant dream.
(The author is a freelancer .The views, opinions and conclusions expressed in this article are those of the author and aren’t necessarily in accord with the views of “Kashmir Horizon”)
