DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PUBLIC INTERNATIONAL LAW

PROCEEDINGS AT ICJ

NAME OF THE FACULTY

DR. LAKSHMI CH

G. ARTHI

19LLB102 & Semester V

 ACKNOWLEDGEMENTS

I would like to express my gratitude to my professor, for the support and guidance. The help and
comments were helpful in making the research. I have tried to implement the suggestions given
and make the project to the best of my abilities.

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 TABLE OF CONTENTS

Introduction………………………………………………………………………...3

Lawmaking by the ICJ and Other International Courts…………………………….4

Organization of the
Court…………………………………………………………...8

Jurisdiction and Laws Applicable…………………………………………………10

Contentious Cases…………………………………………………………………13

Advisory Proceedings……………………………………………….…………….15

Procedures………………………………………………………………………...17

Economic Disputes………………………………………………….…………….19

Conclusion………………………………………………………………………...21

Bibliography………………………………………………………………………22

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 INTRODUCTION

The concept of amicably resolving international problems is a very old one. Mediation and
arbitration systems were well-known, but the installation of a permanent bench of judges to settle
conflicts using strict judicial processes was not. The idea of a Permanent Court of International
Justice was given actual expression at the close of World War I, with the creation of the League
of Nations, under the authority of Article 14 of the League of Nations Covenant (hereinafter, the
Permanent Court or the PCIJ).

The Permanent Court was founded with 15 justices chosen by the League of Nations Assembly
and Council. They represented the world's major civilizations as well as the world's major legal
systems. The Permanent Court's Statute, on the other hand, was a separate instrument from the
League of Nations' Covenant. The Permanent Court could only hear cases involving states. It
was, nevertheless, authorized to provide advice to the League of Nations' Assembly and Council.
The Permanent Court, which began operations in 1922 and ended in 1940 when World War II
broke out, dealt with 29 disputed matters and issued 27 advisory opinions.

In 1946, the Permanent Court was disbanded, and the San Francisco Conference decided to
establish a new International Court of Justice (hence, the ICJ or the Court) on the same lines as
the Permanent Court, but as the United Nations' chief judicial instrument. In contrast to the
PCIJ's Statute, the ICJ's Statute is an inherent element of the United Nations Charter (Article 92
of the UN Charter). Both instruments were signed on June 26, 1945, and went into effect on
October 24, 1945.

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 LAWMAKING BY THE ICJ AND OTHER INTERNATIONAL COURTS

Although the growth of international courts has gotten a lot of attention in recent years, the ever-
increasing importance of these tribunals in the international lawmaking process has gotten less
attention. This is the subject I'd want to discuss this afternoon, with a focus on the International
Court of Justice (ICJ). The ICJ was the only permanent international court in existence when
Article 38 of the current statute was enacted. Of fact, the same may be said of a similar provision
in the Permanent Court of International Justice's law.

After identifying the three principal sources of international law—international conventions,

custom, and general principles of law—Article 38 declares that, subject to the provisions of
Article 59 of the Statute, the subsidiary means for the determination of rules of law are judicial
decisions and the teachings of the most highly qualified publicists of the various nations.
Thus, while under Article 59 decisions of the ICJ are binding between the parties to a case,
judicial decisions generally, whether rendered by national or international courts, merely serve as
subsidiary means for the determination of rules of law.

Since the adoption of the ICJ Statute, the world has changed drastically. For one point, the
International Court of Justice (ICJ) is no longer the sole international court that exists. The
International Criminal Court, the Law of the Sea Tribunal, the European Court of Justice, three
regional human rights tribunals, and various ad hoc international criminal tribunals, including the
International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International
Criminal Tribunal for Rwanda, have all joined it. Furthermore, more cases have been sent to the
ICJ in the last decade than ever before, and more are on the way. These cases cover a broader
range of international law topics than in the past.

In addition to its traditional jurisdiction over territorial and maritime disputes, the Court is
increasingly being asked to rule on cases involving illegal exploitation of natural resources,
human rights and humanitarian law, the use of force, treaty interpretation, self-determination,
consular rights, various types of immunities, international environmental law, state
responsibility, international organizations law, and a variety of other issues. Together with major
earlier ICJ decisions, the doctrine generated by these cases covers an ever-widening range of

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international law problems. As the number of new cases increases, so does the amount of
international law that the Court must interpret and implement. It clarifies current law and, by
necessity, creates new legislation, not with the broad brushstrokes commonly used by legislators,
but through a process known as normative accretion.

Other international and regional courts are likewise issuing more and more judgements in their
areas of judicial competence, adding to the corpus of international law already in existence. As a
result, it is necessary to inquire as to the legal implications of this case law. Of course, the notion
of stare decisis is not recognized by international law. Judgments of the ICJ and some other
international courts are not formally lawmaking in the sense that decisions of Common Law
courts constitute binding precedents within their respective jurisdictions for states that are not
parties to a dispute.

It's not surprising, then, that when it comes to defining what the applicable international law
norm is, an ICJ judgement is now generally regarded as the most authoritative expression on the
issue and accepted as law by the international community. Consider how closely the
International Law Commission followed the Court's jurisprudence in drafting its Articles on
State Responsibility, and how frequently this jurisprudence is invoked as law in diplomatic
correspondence and in decisions of international arbitral tribunals, likely more frequently than
traditional sources of international law—particularly custom and general principles—that have
not been authenticated or validated by an ICJ judgement.

Of fact, this role of the ICJ may simply be viewed as a continuation of its historic duty as a
secondary way of determining legal standards under Article 38(1)(d) of the ICJ Statute.
However, this conclusion overlooks the significant transformation that international law as a
legal system has undergone and is undergoing as a result of, first, the growing number of cases
brought to the ICJ, which reflects a growing acceptance of the legitimacy of its expanding
judicial role and lawmaking authority, and, second, the comparable lawmaking role that other
international and regional courts perform within their respective spheres of judicial competence.

The ICJ, together with the other existing international courts, is part of a fast-expanding
international judicial system that continues to expand and gain in prominence as governments
increasingly turn to it to settle their conflicts and invoke its rulings as law. States rely on the

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decisions of international courts to validate their international legal claims more than ever before
as more and more conflicts between states are decided by these tribunals. Long arguments given
in the past by governments to argue that a practice has become customary international law, or
that a particular interpretation of a treaty is right, are increasingly losing way to the mere
reference of one or another ICJ judgement or decision as the ruling law.

Of course, one might argue that relying on these decisions is just a shortcut for mentioning them
as proof of what the law is rather than as law in and of itself—the secondary means argument—
but the reality is very different. The establishment of a functional international judicial system,
with the International Court of Justice (ICJ) at its informal pinnacle, is rapidly transforming these
judgements into immediately applicable law. Despite the fact that the ICJ's rulings are solely
binding on the parties to the case under Article 59 of the Statute, the Court recognises all of its
decisions as judicial precedents from which it will only depart in exceptional situations.

The ICJ made that point most recently in Croatia v. Serbia, when it declared that “to the extent
that the decisions contain findings of law, the Court will treat them as all previous decisions:
that is to say that, while those decisions are in no way binding on the Court, it will not depart
from its settled jurisprudence unless it finds very particular reasons to do so.” 1This is not a
message about applicable law that is likely be lost on counsel appearing before the Court or, for
that matter, on government legal advisers generally.

In the same manner that American courts reference decisions from other jurisdictions,
international courts are increasingly citing not just their own decisions but also those of their
sister institutions. While these rulings are obviously not binding precedents, they are recognized
as persuasive authority that can be relied on or not based on the validity of their reasoning or
analysis. For example, in the recent Genocide case, the ICJ turned to the ICTY's judgements,
while the Inter-American Court of Human Rights relied on the European Court of Human Rights'
and the ICJ's decisions. Similar practices may be seen in arbitrations before the Permanent Court
of Arbitration and the International Center for Settlement of Investment Disputes, where ICJ
judgements are frequently cited as applicable law in the awards made by the panels of arbitrators.
Comparable examples abound throughout the international judicial system, which includes the

1
1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment (Feb. 26, 2007).

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case law of international administrative tribunals and that of the United Nations human rights
treaty bodies.

The ICJ's reference to UN Human Rights Committee case law in addressing the subject of the
extraterritorial applicability of Article 2(1) of the International Covenant on Civil and Political
Rights is a particularly revealing example. 2 In a nutshell, we're dealing with international
judicial cross-fertilization that enhances and strengthens current international law. This
phenomenon's legal relevance, in my opinion, has yet to be properly understood in the teaching
of current international law. The normative influence international court rulings are increasingly
having on judgements of national courts should not be neglected in comprehending the relevance
of this cross-fertilization process. National courts of States Parties to the European Convention,
for example, usually follow decisions of the European Court of Human Rights. The Inter-
American Court of Human Rights' decisions are starting to have a comparable influence on
national court verdicts across the Americas. When it comes to applying international law, many
national courts, including Texas and the United States Supreme Court, tend to follow ICJ rulings.
The current international legal system is not hierarchically integrated in the sense that no court is
formally superior to the others.

It is expected to enhance international law to the degree that it allows more lawmaking
innovation inside the international judicial system and by the courts that make up that system.
Let us not forget, however, that there is an informal hierarchy in place that comes into play when
one of these international courts needs to apply general international law in the performance of
its duties. In such cases, it will often turn to the ICJ's jurisprudence first. Due to the lack of a
worldwide legislature with broad legislative authority and the fact that lawmaking treaties often
cover only a restricted range of topics, the ICJ and other international courts are increasingly
playing a role in lawmaking. This evolving process is increasingly resembling the lawmaking
function that courts play in the Anglo-American legal system, with courts typically relying on a
combination of binding and nonbinding judicial judgments within a given jurisdiction as
authority. Within the international legal system, a similar sort of judicial cross-fertilization and
lawmaking is currently being done. While this practice is not codified in Article 38 of the Court's
statute, it reflects the realities of today's world, the rising relevance of international judicial
lawmaking, and the demands of the international community.

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 ORGANISATION OF THE COURT

The International Court of Justice is composed of 15 judges elected for a period of nine years; no
more than one national of any State may be a member of the Court. The judges represent the
main legal systems of the world. The Court elects, for a term of three years, the President and
Vice-President of the Court. The Court is assisted by a Registry, headed by a Registrar.

Elections are held every three years for five vacancies of the Court each time. Eligible as judges
are persons of high moral character and possessing the qualifications required in their respective
countries for appointment to the highest judicial offices, or juris-consults of recognized
competence in international law. The election is held simultaneously both in the General
Assembly and in the Security Council, each voting independently of the other. In order to get
elected, a candidate must obtain an absolute majority in both forums. The Court may establish
chambers composed of three or more judges. Such Chambers were constituted upon request of
the parties, for example, in the Gulf of Maine,2 Frontier Disputes,3 ELSI 4 and Land, Island and
Maritime Frontier cases.5 The Court also established a special chamber for environmental
matters. It should be pointed out that a judgment rendered by a chamber is considered a
judgment of the Court.

The Bench

All the judges of the Court, including ad-hoc judges, constitute the Bench of the Court in a case.
No member can be dismissed unless, in the opinion of other members, he/she has ceased to fulfil
the required conditions6. During his/her term of office, no judge should engage in any political or
administrative functions or in any other occupation of a professional nature7.

Further, no judge may participate in a case brought before the Court in which he/she has
previously been involved as agent or counsel for one of the parties, as a member of a commission
of inquiry, or as a member of a national or international tribunal or arbitration.
2
Canada v. United States, ICJ Reports 1984.
3
Burkino Faso v. Republic of Mali, ICJ Reports 1986
4
United States and Italy, ICJ Reports 1989.
5
El Salvador v. Honduras,. ICJ Reports 1993.
6
Article 18, Statute of International Court of Justice.
7
Article 16, Statute of International Court of Justice.

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In this sense, a member of the Court may declare that he/she should not take part in the decision
in a particular case. It is also open to the President of the Court to suggest that for some special
reasons one of the members of the Court should not sit in a particular case and should give
his/her notice accordingly. In case of disagreement between the judge concerned and the
President, the matter shall be settled by a decision of the Court.

Judges Ad hoc

In order to maintain equality in the status of the parties, the Statute provides that where a judge
of the nationality of one of the parties is sitting on the bench, the opposing party may choose an
additional judge. Such a judge need not be a national judge, but should be a national of the party
which is not represented on the bench. Further, each of the parties may choose such a judge if
neither of them has its national sitting on the bench. Judges so chosen by the parties have the
same rights and duties as the members of the Court for the duration of the proceedings.8

Official Languages

The official languages of the Court are English and French. If the parties agree, the case can be
conducted and the judgement delivered exclusively in either English or French. The Court may
also authorize, at the request of a party, a language other than French or English to be used by
that party. In such a case, an English or French translation has to be attached to the judgement. 9

Costs

In general, each party to a dispute bears its own costs for the procedure. Nevertheless, the Court
may decide that all or part of a party’s costs be paid by the other party10.

8
Article 31, Statute of the ICJ.
9
Article 39, Statute of the ICJ.
10
Article 64 of the Statute and Article 97 of the Rules of the Court.

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 JURISDICTION AND LAWS APPLICABLE

The International Court of Justice possesses two types of jurisdictions:

 Contentious jurisdiction

Contentious jurisdiction involves States that submit the dispute by consent to the Court for a
binding decision.

 Advisory jurisdiction

Advisory jurisdiction, on the other hand, concerns questions referred to the Court by the General
Assembly, the Security Council or other organs and specialized agencies of the United Nations.
Those questions can only refer to legal questions arising within the scope of their activities.
Advisory opinions given by the International Court of Justice are not binding.11

Mainline and Incidental jurisdiction

A distinction can be made between incidental jurisdiction and mainline jurisdiction. Incidental
jurisdiction relates to a series of miscellaneous and interlocutory matters; for example the power
of the Court to decide a dispute as to its own jurisdiction in a given case; its general authority to
control the proceedings; its ability to deal with interim measures of protection; and the
discontinuance of a case. Mainline jurisdiction, on the other hand, concerns the power of the
Court to render a binding decision on the substance and merits of a case placed before it.

Jurisdiction Rationae Personae

The Statute of the ICJ establishes that for contentious jurisdiction, only States can be parties
before the Court12. However, States are entitled to sponsor the claims of their nationals against
other States. This is generally done by way of diplomatic protection. Such protection under
international law can be exercised by the State of nationality only after the person concerned has
exhausted local/judicial remedies available in the jurisdiction of the State in which the person has
suffered the legal injury. Exhaustion of local remedies is more than a procedural requirement.
11
The general information concerning the International Court of Justice,25 October 2002 (www.icj-cij.org).
12
Article 34(1) of the Statute of the ICJ

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Without their exhaustion, no remedies for legal injury can be envisaged at the international level.
On the other hand, for a foreign national to exhaust local remedies, such remedies should not
only be available, but they should also be effective and not merely notional or illusory. However,
these are matters for judgment in a given case.

The question has also been raised as to whether an individual could renounce through a contract
with a foreign government his/her right to seek diplomatic protection from the State of his or her
nationality. It is argued that the exercise of diplomatic protection is a right of the State, and its
nationals cannot therefore seek its exemption through a contract; this can only be exercised at the
discretion of the State. It is also common nowadays for States to agree, in bilateral treaties, to
submit dispute concerning foreign investment directly to arbitration outside their jurisdiction
without requiring the investing company or individuals to exhaust local remedies.

It is understood that a State cannot sponsor the claims of its national against another State of
which he or she or the entity is also a national. Further, in the case of persons with dual or
multiple nationality, only the State with which the person enjoys a genuine link can exercise
diplomatic protection13. It is also held that where the legal interests of company are injured in a
foreign jurisdiction, only the State in whose jurisdiction the company is incorporated has the
right to sponsor its claims and not the State of nationality of the shareholders, even if they
constitute a majority shareholding in the company, except where:

 the rights of the shareholders are directly affected;

 the company has ceased to exist in the country of incorporation; and
 The State of incorporation is the country responsible for the injury of the Company.14

Declarations made under Article 36(2) of the Statute

The jurisdiction of the International Court of Justice also exists by virtue of declarations made by
States, that they recognize as compulsory its jurisdiction in relation to any other State accepting
the same obligation in all legal disputes concerning the matters specified in Article 36(2) of the
Statute. This method of conferring jurisdiction on the ICJ is also known as the Optional Clause.15
13
see the Nottebohm case
14
Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), ICJ Reports.
15
Fisheries Jurisdiction Case (Spain v. Canada), ICJ Reports 1998, paras. 44, 52 and 54.

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Reservations to Jurisdiction

Declarations under Article 36(2) can be made with such reservations as the author State may
deem fit to specify.16 It is understood that the jurisdiction of the Court exists only to the extent
there is common ground between the declarations of each of the parties on the given subject
matter. Reciprocity is therefore an important feature of the Optional Clause system.

Jurisdiction Rationae Temporis

There is no time limit for submission of a dispute to the Court. However, as mentioned
previously, several States, while submitting their declarations under Article 36 (2), prescribe
time qualifications for a dispute to come within the scope of the declaration. 17 The time factor is
also important in determining whether, in a given case, the ICJ has inherited the jurisdiction of
the PCIJ.

16
ibid
17
Supra note 15, pp. 111, 122 and 123.

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 CONTENTIOUS CASES

In disputed matters, only States (members of the United Nations and other states that have
become parties to the Court's Statute or have accepted its jurisdiction under specified conditions)
can be parties.

States do not have permanent representatives at the Court. They usually contact with the
Registrar through their foreign minister or an ambassador accredited to the Netherlands. They are
represented by an agent when they are parties to a matter before the Court. In a national court, an
agent has the same position as a solicitor or avoué, as well as the same rights and duties.
However, when international relations are at risk, the agent functions as the head of a special
diplomatic mission with the authority to bind a sovereign state.

He/she receives case-related communications from the Registrar and transmits all letters and
pleadings to him, fully signed or certified. In public hearings, the agent introduces the case and
submits the arguments on behalf of the government he or she represents. States do not have
permanent representatives at the Court. They usually contact with the Registrar through their
foreign minister or an ambassador accredited to the Netherlands. They are represented by an
agent when they are parties to a matter before the Court. In a national court, an agent has the
same position as a solicitor or avoué, as well as the same rights and duties.

The date of the institution of proceedings, which is the day the Registrar receives the special
agreement or application, marks the start of the Court's proceedings. A written phase, in which
the parties submit and exchange pleadings including a full account of the issues of fact and law
on which each party relies, and an oral phase, in which agents and lawyers address the Court, are
both included in contentious procedures. Everything published or stated in one of the Court's two
official languages (English and French) is translated into the other. The written pleadings are not
made public or available to the press until the oral hearings begin, and only then if the parties do
not object.

Following the oral sessions, the Court deliberates in camera before issuing its decision at a public
sitting. The decision is final, binding on all parties involved in the matter, and cannot be

13
appealed (at the most it may be subject to interpretation or, upon the discovery of a new fact,
revision). Any judge may add an opinion to the judgement if he or she so desires.

By signing the Charter, a United Nations Member State agrees to follow the Court's ruling in any
matter to which it is a party. Furthermore, because a matter can only be filed to the Court and
determined by it if the parties have accepted to the Court's jurisdiction in some way, it is
uncommon for a decision not to be carried out. A State that believes the other side has failed to
fulfil its duties under a Court ruling may bring the matter to the Security Council, which has the
authority to suggest or decide on actions to be taken to give effect to the verdict.

A lawsuit may be resolved at any point during the proceedings by a settlement between the
parties or by dismissal. In the latter instance, an applicant State may notify the Court at any time
that it does not desire to continue the proceedings, or the two parties may announce that they
have reached an agreement to dismiss the matter. The matter is thereafter removed from the
Court's docket.

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 ADVISORY PROCEEDINGS

Only five United Nations organs and 16 specialised agencies of the United Nations family or
connected organisations are allowed to participate in advisory procedures before the Court. The
General Assembly and Security Council of the United Nations have the authority to seek
advisory views on any legal issue. Other United Nations institutions and specialised agencies that
have been given the authority to seek advisory views can only do so on legal issues that arise in
the course of their work.

When the Court receives a request for an advisory opinion, it must gather all relevant evidence
and is therefore authorised to convene written and oral hearings, similar to those held in disputed
matters. Although the Court might theoretically function without such procedures, it has never
done so.

The Court compiles a list of States and international organisations that are likely to be able to
provide information on the issue before the Court a few days after the request is lodged. Such
States are not in the same position as parties to contentious proceedings: their agents before the
Court are not known as agents, and their participation in advisory procedures does not bind them
to the Court's decision. Typically, the States named are those that are members of the
organisation that is seeking an opinion. Any country that has not been contacted by the Court
may request to be.

However, the Foreign Court of Justice (ICJ) seldom allows international organisations other than
those that requested the opinion to participate in advisory procedures. The only non-
governmental international groups that the ICJ has ever permitted to provide information have
never done so (International Status of South West Africa). All such pleas from private parties
have been denied by the Court.

Written processes are shorter than those in contentious inter-state disputes, and the norms that
govern them are more flexible. Participants may submit written statements, which are
occasionally the subject of written responses from other participants. Although the written

15
declarations and opinions are considered secret, they are usually made public at the start of the
oral hearings. States are generally invited to give oral remarks at public hearings after that.

The advisory processes come to a close when the advisory opinion is delivered in a public
hearing. These opinions are basically advisory; unlike the Court's decisions, they are not legally
binding. The seeking organ, agency, or organisation has complete discretion over whether or not
to give effect to the opinion. Certain agreements or rules, on the other hand, establish that a
Court's advisory decision has binding effect (e.g., the conventions on the privileges and
immunities of the United Nations).

Nonetheless, the Court's advisory views are linked with its authority and reputation, and an
endorsement of an opinion by the organ or agency involved is sanctioned by international law.

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 PROCEDURES

The Statute of the International Court of Justice establishes procedures for the conduct of a case
before the Court. The provisions of the Statute are supplemented by the Rules of the Court. The
current Rules were promulgated in 1978. The Court, while being faithful to the provisions of the
Statute, treats matters concerning procedure with the necessary flexibility.

Initiating a Case

States parties to a dispute may commence a case after notifying it to the Registrar of the Court.
Upon receipt of either the notification of the special agreement or a written application, the
Registrar of the Court will communicate the application to all concerned. The Members of the
United Nations will be informed through the Secretary-General. The Registrar communicates the
application to any other States entitled to appear before the Court.18

Representation of the Parties

Agents appointed by the parties represent them before the Court. They may have the assistance
of counsels or advocates. The agents, counsel, and advocates of the parties before the Court
enjoy privileges and immunities necessary for the independent exercise of their duties. 19

Interim Measures of Protection

The ICJ may, without prejudice to the decision as to its jurisdiction in the case, where necessary,
indicate interim measures for the protection of the rights of one of the parties. 20 Such measures
are also aimed at preserving the situation under dispute with a view to giving full effect to the
final decision of the Court. In some cases, the Court has first ordered interim measures of
protection and later found itself without jurisdiction.21

In other cases, it has rejected the request for interim measures of protection on the ground that
the nexus between the rights to be protected and the measures sought was not established.

18
Article 40 of the Statute of ICJ.
19
Article 42 of the Statute of the ICJ.
20
Article 41 of the ICJ Statute.
21
the Anglo-Iranian Oil Co. case

17
Once the matter has been brought before it, the Court may indicate measures not only at the
request of one of the parties, but also on its own initiative. The Court can order interim measures
of protection even if there is a special agreement between the parties not to preserve the status
quo. Generally, such a conflict does not arise, as, in most cases, interim measures of protection
are ordered only upon the request of one of the parties. Furthermore, the Court may indicate
measures other than those requested by a party, or it may reject the application in toto. The Court
indicates such measures by way of an order.

Even if such an order does not have the character of a recommendation, it has a binding effect.
The Court must give notice of the measures indicated to the parties concerned and to the United
Nations Security Council (Article 41 of the Statute). It must however be noted that, as interim
measures of protection are not a judgement of the Court within the meaning of Article 94 of the
United Nations Charter, the Security Council cannot be called upon to enforce them. However, a
party that has failed to comply with an order is under obligation to compensate the other party.

Right of Intervention of a Third Party

A State which is not a party to a dispute can intervene in the case if it has an interest of a legal
nature that is likely to be affected by a decision in the case. However, it is for the Court to decide
upon its request. Intervention does not require the existence of a jurisdictional link between the
parties to the dispute and the third State. Intervention by a third State does not mean that, once
admitted, the intervening State becomes a party to the dispute. The intervening State is not
entitled to nominate a judge ad hoc. However, with the consent of all the parties, an intervener
may become a full party to the proceedings. The decision of the Court in relevant part(s) is also
binding upon the State that is allowed to intervene. Further, according to Article 63 of the
Statute, a State, which is a party to an international convention, can intervene in a case in which
the construction of the provision of the Convention is at issue. In such a case, the decision given
by the Court is equally binding on the intervening State. An international organization, however,
does not have a right to intervene in any case before the Court; it only has the right to be
informed of any proceedings in which the interpretation of its constituent instrument, or any
Convention adopted thereunder, is in issue. Further, the Court may ask such an organization to
furnish information or it may supply information on its own initiative.

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 ECONOMIC DISPUTES

The suitability of referring economic disputes to the ICJ is generally recognized. In fact it is said
that there is nothing in the Statute of the Permanent Court, and now the International Court of
Justice, that prevents States from referring extra-legal or non-legal matters, such as political,
economic and financial matters, for a decision.31 Similarly, it has also been observed that “the
competence of the Court is already wide, and there is nothing in the nature of the Court or its
experience, which suggests that the Court would be unable to deal with any particular category
of disputes”.22

Further, from the cases discussed in this module, it can be seen that the Court has been quite
willing to deal with disputes involving trade, investment and the economic rights of States and
individuals. Economic disputes were submitted during the inter-war period either to arbitration
or to the Permanent Court of International Justice (PCIJ), which was established in 1921 as part
of the system of the League of Nations. Even though the Statute of the Permanent Court of
International Justice allowed States to confer compulsory jurisdiction upon the Court through
declarations made under an optional clause, the basic feature of the jurisdiction of the PCIJ, like
that of the ICJ, was consent of States parties to a dispute.

In this sense, the jurisdiction of the Court was similar to that of international arbitral tribunals,
which are established by a special agreement between the parties to a dispute. Even after the
creation of more specialized regimes to deal with economic disputes, such as the dispute
settlement procedure of the World Trade Organization, and the possibility of referring certain
class of economic disputes to the International Court of Justice cannot be ruled out. The
advantage of referring a case to the ICJ is that the parties do not have to bear the expenses of the
Court, which is not the case in respect of the arbitral tribunal. The decision of the ICJ is
immediately binding on the parties to a dispute without the need for additional ratification or
confirmation by another body. Further, the Court’s response to particular questions on rules and
procedures and questions of admissibility is predictable given the well-developed jurisprudence
of the Court on these matters. In addition, being a principal organ of the United Nations, a
decision rendered by the Court, for all the judicial caution it exhibits, gives it the opportunity not

22
Lord McNair (1957), p. 11.

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only to advance the cause of development of international law, but also to put on the decision the
imprimatur of the international community. Accordingly, where issues of greater interest to the
international community arise in a given case, even if the subject matter of the dispute is
essentially economic in nature, it would appear desirable to submit such a case to the ICJ.

A few more points with reference to the Statute of the Court are useful to note which show the
flexibility that exists in the jurisdiction of the Court to deal with economic disputes. In this
connection, it may be noted that the facts, the existence of which the Court is called upon to
determine, could be of any kind, and they could clearly be economic facts, considerations and
circumstances.

Even though the Court is called upon to decide upon the dispute submitted to it in accordance
with international law, it need not pronounce a judgement in every matter that is referred to it. It
could suspend or discontinue its proceedings, either upon a request made by one of the parties or
on its own initiative, with a view to helping States arrive at an agreement by negotiation in good
faith or by any other means. It could render declaratory judgements, upon a request from the
Applicant State to the dispute, to clarify the rights and obligations of the parties involved without
having to deal with allegations of violation of obligations.

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 CONCLUSION

Having gone through the statute of the International Court of Justice, the constitution of the
judicial forum of the highest inter-governmental forum, the United Nations Organization, it
appears that the legality of the structure is deeply rooted in present day globalized world. States
which are considered to be the supreme most sovereign bodies have assented to the structure of
the ICJ by having become a member of the UNO, thought their willingness to be bound by the
mandate of its organ is left to the political decision of that particular state/s that are in dispute,
and which wants to be adjudicated by a neutral forum.

So as to maintain its credibility as an able and just forum to render justice in matters of inter-state
conflict, it is pivotal that they are not susceptible to the greed of the power politics played by the
so-called super powers. So that the principles such as State Sovereignty and other principles of
customary international law are not violated.

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 BIBLIOGRAPHY

Primary Sources
 United Nations Charter, 1945
 Statute of the International Court of Justice

Judicial Decisions

 Barcelona Traction, Light and Power Company Limited (Belgium v. Spain)

 Fisheries Jurisdiction Case (Spain v. Canada)
 Case Gulf of Maine
 Island and Maritime Frontier cases.

Books

 Malcolm N. Shah, International Law, (Fifth Edition, 2012, Cambridge University Press,
London,), p. 41
 I.A. Shearer, Starke’s International Law, (Eleventh International Student Edition, 1994,
Oxford University Press, Oxford), p. 79.

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