International Court of Justice and state consent
Updated: Jun 16, 2020
Written By: Priyanka Walter, Manav Rachna University, Faridabad
The International Court of Justice (ICJ) was established in 1949 and is considered to be the successor of the Permanent Court of International Justice (PCIJ) which was established in 1922 and was associated with the League of nations. As per the Statue of the International Court of Justice Article 1, ICJ established by the UN Charter is the prime judicial organ of the United States. The International Court of Justice has the capacity to deal with a wide range of disputes ranging from state disputes to land and maritime boundaries, genocide, crimes against humanity, use of nuclear weapons, protection of the environment, etc.
The world court has fifteen judges in total excluding the ad hoc judges from all over the world. Out of the fifteen judges, three of them are currently women. The judges serve the court in their individual capacities and not as the representatives of their states and nationalities. The bench must consist of judges from different geographical regions and legal systems but the permanent five members of the UN Security Council are always represented: China, Russia, France, UK and the US. The election of the judges in the ICJ has a political element to it, the two political bodies of the UN namely, UN General Assembly and the UN Security Council are responsible for their election. The detailed procedure of their election is written in the Statue of the International Court of Justice Article 4 to 12. They once elected to serve for a period of nine years and can be re-elected more than once to serve the world court.
The International Court of Justice mainly serves two purposes. Its primary function is to in accordance with international law settle legal disputes arising between two states and such cases are referred to as contentious cases. The secondary function of the world court is to give advisory opinions related to legal matters to the UN Security council, UN General Assembly and UN specialized agencies but these matters must fulfill the mandate of these agencies. The states around the world cannot ask for advisory proceedings but they can participate in these advisory proceedings to an extent where they can present their arguments to the judges on the questions posed before the court. For one instance when the WHO (World Health Organisation) asked the advisory opinion of the International Court of Justice in 1993, regarding the use of nuclear weapons by a state during armed conflict would violate its obligation under the international law and the WHO Constitution. The Court declined to provide its opinion as the advice asked did fall under its mandate. The mandate of the WHO allows it to deal with the aspects of the health effects of nuclear weapons and not the legitimacy of their use. Theoretically, the advisory opinion so the court is non-binding in nature but practically it tends to be highly authoritative in nature.
When there is a legal dispute between two states and they have exhausted all the other diplomatic and legal methods to settle the dispute, the states provide their consent to the ICJ to hear on their matter. It is necessary for any state to provide its consent to the ICJ, the states cannot be brought involuntarily before the court. If one state gives consent but the other state does not then the court does not hold the jurisdiction. The term ‘jurisdiction’ refers to the court’s competence to decide the case before it. This is so because the states in themselves are sovereign entities, meaning they are the highest authority within their own territory. They cannot be subjected to any higher authority without their consent. The decision of the ICJ is binding on the parties but the underlying issue is the compliance of the decision of the court by the parties to the dispute. The parties to the dispute have an obligation to adhere to the judgement. Since the ICJ does not have any international police force to ensure the adherence of its judgements, it would be counterproductive to force states to litigate against their will in the World Court. Thus, we can say that the Court is unable to enforce its own judgements.
The states can provide their consent by mutual agreement or a special agreement. The same has been written in Article 36, paragraph 1, of the Statute of International Court of Justice, which provides that the jurisdiction of the Court comprises all cases which the parties refer to it.
Secondly, the states can bring matters relating to international treaties to which they are parties and conventions. It is a unilateral document which must indicate the subject of the dispute and the parties (Statute, Art. 40, para. 1). The states may file their consent to the court by filing a declaration comprising all future disputes in which the court will have jurisdiction. These are referred to as optional clause declarations. There are some declarations which cover all potential disputes but many declarations exclude certain types of disputes that states do not wish to submit to the court. In order for the court to possess jurisdiction, both parties to the dispute got to have filed such declarations. Only about 70 states have filed the optional declaratory clause.
WHALING IN THE ANTARCTIC (AUSTRALIA v. JAPAN: NEW ZEALAND INTERVENING)
On 31st May, 2010, Australia moved the International Court of Justice which accused Japan of “a large scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit within the Antarctic (‘JARPA II’)” which was in breach of its obligations under the 1946 International Convention for the Regulation of Whaling and of other international obligations for the preservation of marine mammals and therefore the marine environment.
On 31st March, 2014, the court held that it had jurisdiction to hear the case thus rejecting the argument of Japan that the dispute fell within the scope of a reservation contained in Australia’s declaration recognizing the Court’s jurisdiction as compulsory. The court interpreted Article VIII of the 1946 Convention, paragraph 1 of which states that the parties “may grant to any of [their] nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research”.
The court held that even though Article VIII gives discretion to a state who is party to the convention to reject the request for a special permit whether for the killing, taking, treating of whales in accordance to the special permit is for ‘scientific purposes’ cannot rely upon the State's perception.
The Court indicated that JARPA II could broadly be classified as a scientific research but the question which arose was whether legal methods were followed or not. The test was to examine whether the programme’s design and implementation were reasonable in relation to achieving its stated research objectives. The Court on further proceeding held that this was not the case and the special permits issued by Japan in correspondence to killing, taking and treating of whales did not fall under the “purposes of scientific research” pursuant to Article VIII, paragraph 1, of the 1946 Convention.
The Court found that Japan had indeed breached several provisions of the Schedule of the aforementioned Convention, the Court ordered Japan to revoke any extant authorization, permit or licence to kill, take or treat whales in reference to JARPA II, and to refrain from granting any longer permits under Article VIII, paragraph 1, of the Convention, in pursuance of that programme.
The drafters of the ICJ constitution envisaged that the formation of state consent would allow the world to be a more peaceful and prosperous place. Though that hasn't been the case. There are still many loopholes in it and the main issue is still that of participation of all the countries around the world. The underlying issue of the ICJ not being able to ensure the compliance of its judgements need to be taken care of. There are many counties which have not signed international treaties and regulations which give the World Court more power and jurisdiction. The fear of the States to not sign optional, special or other types of clauses and declarations that they might lose freedom to other various means of diplomatic or legal methods of settling a dispute must be eradicated. The International Court of Justice sitting in the Peace Palace of Hague, has come a long way since its conception and yet, there is a long way ahead to fulfill the vision of the drafters of its constitution.
https://www.icj-cij.org/en/statute  United Nations, Statute of the International Court of Justice, 18 April 1946.  Article 13 paragraph 1, Statute of the International Court of Justice,  https://www.icj-cij.org/en/case/93.  Chapter II, Article 2, https://apps.who.int/gb/bd/pdf_files/BD_49th-en.pdf#page=7.  Article 38, paragraph 5, of the present Rules of Court, 1 July 1978.  Treatment in Hungary of Aircraft and Crew of the United States of America (United States of America v. Hungary) (United States of America v. USSR). https://www.icj-cij.org/en/basis-of-jurisdiction.  International Convention for the Regulation of Whaling, 1946, https://archive.iwc.int/pages/view.php?ref=3606&k=