Evaluation of Jurisdiction of International Court of Justice on the Basis of Consent

Introduction 

The ICJ (International Court of Justice) is the principal judicial organ of the United Nations. ICJ was established to help materialize the fundamental objectives of the UN, i.e., maintenance of peace and a stable world order. It is the only international court that has a universal character of general jurisdiction on all kinds of legal disputes between members of the United Nations. ICJ is the continuation of PCIJ. PCIJ  held in the advisory opinion on the Status of Eastern Carelia (1923)  that no State can, without its consent, be compelled to submit its disputes to  any other kind of pacific settlement.  This is called “principle of consent”. Consent is the fundamental difference between the international and domestic legal order. The Court has a dual jurisdiction i.e. jurisdiction in contentious cases and advisory jurisdiction. This paper specifically discusses on contentious cases.

Jurisdiction of ICJ on the basis of Consent 

The jurisdiction of the Court in contentious proceedings is based on the consent of the States. The form in which this consent is expressed determines the manner in which a case may be brought before the Court. The forms of jurisdictions are listed below:

•     Jurisdiction by special agreement:

States could give their consent to proceedings by special agreement also called ad hoc (by way of the so-called compromis) Jurisdiction by special agreement poses no threat to states because they can avoid it simply by refusing to consent to jurisdiction.

• Jurisdiction established by treaty:

This system is also called ante hoc. States consent is required while in the process of ratification. So the states violating international law have nothing to fear from treaty based jurisdiction as it is on the basis on the treaty which the state has consented. Also, although treaties in force worldwide number in the thousands, the ICJ currently reports only 268 treaties, both bilateral and multilateral, containing clauses relating to the jurisdiction of the Court in contentious proceedings. So very few treaties seek ICJ for dispute settlement.

• Compulsory Jurisdiction:

Many states file a declaration in accordance to the Statute of ICJ. However most states have, through reservations, consented to compulsory jurisdiction only for a narrow range of cases. The US’s declaration, for example, excluded cases involving national security. When the ICJ nonetheless found that this clause was satisfied in the Nicaragua V. US the US pulled out of compulsory jurisdiction which will be discussed later in the essay.  Reservations are limitations in the declarations to recognize the jurisdiction of the court, protecting the declaring state against undesired involvement in judicial proceedings. Also declarations are conditions of reciprocity.

• Jurisdiction by Forum Prorogatum Doctrine:

In this sort of proceeding the court infers the consent of the state expressed in an informal and implied manner, and after the case has been brought before the court. The doctrine of Forum Prorogatum was involved in 10% of cases since 1945, but only in two instances the defendant accepted the jurisdiction of court i.e. in Djibouti V. France and Republic of Congo V. France.

ICJ as the World Court 

It was looked forward to the ICJ as an ultimate tribunal in which all legal disputes would be settled. However the court is least used among the organs of the UN.  Instead of submitting their disputes to this court, most states have resorted to all available means to avoid its jurisdiction. The ICJ website mentions that in nearly 70 years of the formation of the world court i.e. from 1945 to 2014 only around 120 cases were filed and out of 194 states not even 100 states have participated in court proceedings till date. So it can be inferred that ICJ has not been able to acquire the status of World Court till date. Initially it was being avoided by less powerful nations and now even the powerful nations have started to avoid it. A sign to prove it is that only one out of the five permanent members of the security council has accepted the compulsory jurisdiction of the court i.e. UK. When ICJ found that jurisdiction was satisfied US withdrew consent from the compulsory jurisdiction after the Nicaragua case while France also withdrew from compulsory jurisdiction after ICJ took a case without France’s consent in the early 1970s.

ICJ has maintained neutrality for considering the principles of state responsibility and doctrines of state sovereignty and equality of the states. So it acts as a third party rather than super power. So the states are free to accept the third party and free not to do so which is called non-engagement and once they have done so they can always remove themselves from jurisdiction called disengagement. Consensual methods are affected by problem of this ‘opportunistic engagement’. So there can be abuse of rights, in defiance to principle of good faith can occur time and again.

In addition to the above problems of consensual proceedings an additional problem is that of the legitimacy. The court derives jurisdiction competence from the consent of the states. Judges exercise their function in absence of explicit mandate and are relying on implicit powers. Thus a question is raised whether ICJ can be a world court without having legitimacy.

Requirement of Reform or Broader Interpretation:   

Many authors propose for a shift from consensual to compulsory paradigm. It must be stressed that the shift of paradigm from consensual to compulsory does not mean that the principle of consent has been extinguished. However, compulsory paradigm would be rather unproblematic if it had taken place homogeneously throughout the globe, across legal regimes.  Aerial Incident  of Pakistan v. India, preferring to rely on other reservations. In this case Pakistan instituted proceedings against India for its destruction on 10 August 1999 of a Pakistani aircraft; it alleged that in the period leading up to the Indian general election in 1999 India had adopted an aggressive posture over Kashmir which had culminated in this incident. An unarmed Pakistani aircraft had been conducting a training mission over Pakistani territory and had been struck by an air-to-air missile from an Indian combat aircraft, killing 16 officers. The Court found that it had no jurisdiction under the Optional Clause and the 1928 General Act. This decision by India not to invoke its reservation on hostilities is a significant indication of the sensitive and problematic nature of the reservation. States may not want to acknowledge a situation of armed conflict. They may not want to risk a Court judgment on the wider dispute; they may not want to accept the possibility of the application of laws of war. States never consent by declarations to complex issue but only simple issues. This is done in consideration to political issues that may be at stake.

So there should be some reform in optional clause by tightening up right of immediate termination of the declaration. It could be done by making declarations compulsory to be made for not less than a specified minimum period, say 5 or 10 years, and even after that they should be terminable only after a year's or at least six months' notice. Secondly, the unrestricted power to make reservations should be curtailed. German scholars believe that it is reason­able to call international law “a legal system”. This classification necessar­ily implies that the courts within that system possess certain powers and the courts’ pow­ers therefore allow them to go beyond the intentions of states in developing international law.

The question of proprio motu (on its own initiative) though has not been applied yet can be relevant here. Whether or not the ICJ could initiate cases on its own without the consent of states to maintain international peace and security is a question raised in the court itself. As principal judicial organ it had been assigned a role for the maintenance of international peace and security and therefore should have acted proprio motu in cases concerning legality of Use of Force. Certain judges argued that the Court should not have refused to make an order for provisional measures. Yugoslavia had asked the Court to order ten NATO states to cease immediately their acts of use of force in Kosovo. Judge Shi in his Dissenting Opinion said that faced with the urgent situation the Court ought to have contributed to the maintenance of international peace and security so far as its judicial functions permitted. However such changes would make an unusual impact rather than a progressive one.

ICJ cannot go beyond the statute and UN Charter but it can take bold steps within the periphery.  Although there was concern at the time of the Nicaragua case that the USA’s withdrawal from the case and subsequent denunciation of the Optional Clause might harm the Court, it seems that the opposite has proved true. After this decision developing states have been more willing to turn to the Court since the judgment in the Nicaragua case. Libya and Iran have felt encouraged to use the Court in cases against the USA. This is a positive change that has been seen.

The ICJ can step to accept its jurisdiction in all matters of UN Charter and should enjoy the power of the Court to decide a dispute as to its own jurisdiction in a given case. Thus broader interpretation of the statute should be done rather than in strict sense.

Conclusion 

If consent remains to guide the jurisdiction, the major powers in the world will enjoy doing as they want as the Security Council suffers from the provision of veto .The world community has now become more inter-dependent than ever before. International community, like any other, is a community of continuing change. For this community one can legitimately hope a stronger world court which shall be instrumental in attaining new international legal order.  It is not by accident that the contemporary international judicial system is incomplete and fragmented, as it simply reflects the reality of a society still made of sovereign states, many of which are in no hurry to transfer sovereignty. Though consent has an important role to play, the world’s greatest problems cannot be addressed unless states are prepared to overcome the problem it creates. Thus the paper has provided ideas for change in ICJ tradition along with the change in international community.