Jurisdiction of ICJ

Jurisdiction of ICJ.

Contentious Jurisdiction of ICJ.

Asylum Case.

Advisory opinion of ICJ.

Reparation Case.

Jurisdiction of ICJ

According to Article 93 of the UN Charter, all 193 UN members are automatically parties to the Court's statute. 

Non-UN members may also become parties to the Court's statute under the Article 93(2) procedure. 

For example, before becoming a UN member state, Switzerland used this procedure in 1948 to become a party. And Nauru became a party in 1988. Once a state is a party to the Court's statute, it is entitled to participate in cases before the Court. However, being a party to the statute does not automatically give the Court jurisdiction over disputes involving those parties. 

There are two types of jurisdiction is considered in ICJ 

(a) Contentious issues 

(b) Advisory opinions.

Contentious issues

According to Article 34 of Statute of International Court of Justice (ICJ)

1. Only states may be parties in cases before the Court.

2. The Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative.

3. Whenever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court, the Registrar shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings.

According to Article 35 of Statute of International Court of Justice (ICJ)

1. The Court shall be open to the states parties to the present Statute.

2. The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.

3. When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall not apply if such state is bearing a share of the expenses of the Court

According to Article 36 of Statute of International Court of Justice (ICJ)

1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.

2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

    a. the interpretation of a treaty;

    b. any question of international law;

    c. the existence of any fact which, if established, would constitute a breach of an international obligation;

    d. the nature or extent of the reparation to be made for the breach of an international obligation.

3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.

4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.

5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.

6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.

According to Article 37 of Statute of International Court of Justice (ICJ)

Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.

Asylum Case

Colombia v Peru [1950] ICJ 6 (also known as the Asylum Case) is a public international law case, decided by the International Court of Justice. The ICJ recognised that the scope of Article 38 of the Statute of the International Court of Justice encompassed bi-lateral and regional international customary norms as well as general customary norms, in much the same way as it encompasses bilateral and multilateral treaties. The Court also clarified that for custom to be definitively proven, it must be continuously and uniformly executed.

Facts

The Colombian Ambassador in Lima, Peru allowed Víctor Raúl Haya de la Torre, head of the American People's Revolutionary Alliance sanctuary after his faction lost a one-day civil war in Peru on 3 October 1949. The Colombian government granted him asylum, but the Peruvian government refused to grant him safe passage out of Peru.

Colombia maintained that according to the Conventions in force - the Bolivian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum, the Montevideo Convention of 1933 on Political Asylum[2] - and according to American International Law, they were entitled to decide if asylum should be granted and their unilateral decision on this was binding on Peru.[3]

Judgment

Both submissions of Colombia were rejected by the Court. It was not found that the custom of Asylum was uniformly or continuously executed sufficiently to demonstrate that the custom was of a generally applicable character.

Advisory opinion

According to Article 65 of Statute of International Court of Justice (ICJ)

1. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.

2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question.

According to Article 66 of Statute of International Court of Justice (ICJ)

1. The Registrar shall forthwith give notice of the request for an advisory opinion to all states entitled to appear before the Court.

2. The Registrar shall also, by means of a special and direct communication, notify any state entitled to appear before the Court or international organization considered by the Court, or, should it not be sitting, by the President, as likely to be able to furnish information on the question, that the Court will be prepared to receive, within a time-limit to be fixed by the President, written statements, or to hear, at a public sitting to be held for the purpose, oral statements relating to the question.

3. Should any such state entitled to appear before the Court have failed to receive the special communication referred to in paragraph 2 of this Article, such state may express a desire to submit a written statement or to be heard; and the Court will decide.

4. States and organizations having presented written or oral statements or both shall be permitted to comment on the statements made by other states or organizations in the form, to the extent, and within the time-limits which the Court, or, should it not be sitting, the President, shall decide in each particular case. Accordingly, the Registrar shall in due time communicate any such written statements to states and organizations having submitted similar statements.

According to Article 67 of Statute of International Court of Justice (ICJ)

The Court shall deliver its advisory opinions in open court, notice having been given to the Secretary-General and to the representatives of Members of the United Nations, of other states and of international organizations immediately concerned.

According to Article 68 of Statute of International Court of Justice (ICJ)

In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable.

Reparation Case

The story of the ICJ’s Reparation for Injuries Advisory Opinion is made up of three parts, although the Court’s opinion concentrates on only one. This is the story of a Swedish diplomat and his death in 1948; a lost opportunity for Israeli-Arab relations; and the rise of the United Nations as a pivotal international organization. Count Folke Bernadotte’s murder was a tragedy because of his previous heroics. But the case before the ICJ as a consequence of that murder provided a critical link for the further development of international law.

Reparations for Injuries: Count Bernadotte

Count Folke Bernadotte of Wisburg, a relative of King Gustaf of Sweden, had rescued more than 30000 prisoners from German concentration camps in World War II through mediation. As vice-chairman of the Swedish Red Cross, he freed many Jews, but Bernadotte’s status of a hero among the Jewish people was short-lived. The newly formed United Nations had appointed Bernadotte as the mediator in the first Israeli-Arab conflict, with Israel fighting for independence. With his first partition plan, Bernadotte angered many extremist forces within Israel. He came to be seen as an enemy of Israel, and was assassinated in Jeruzalem at point blank range by the Jewish group LEHI. This group included Yitzhak Shamir, who would become Prime Minister of Israel in the 1980s. Count Bernadotte is now an icon in Swedish and diplomatic history.

Capacity to make a claim

Because Bernadotte was in the service of the United Nations, the new organization sought to improve security for its agents like Bernadotte. One avenue is the ability to hold someone or something responsible for injuries suffered by the organization or its agents, and extract reparations. Bu whether the UN was able to do so, like states, was unclear. The UN General Assembly (UNGA) asked the International Court of Justice for an advisory opinion on the issue. Did the UN have the capacity to make an international claim to demand reparations when a state is responsible for injuries to one of its agens in the performance of its duties? The question was asked in the abstract, but in essence, the UNGA asked whether the UN could make an international claim against Israel as the responsible government for the death of Count Bernadotte.

The requirements of international life

In order to answer the question, the Court had to basically determine the status of the UN in he international legal system in 1948? Is it on the same level as sovereign states? Does the UN have the international legal personality? Only if it does, can the UN make a claim. The court first determined that the subjects of law ’are not necessarily identical in nature or in the extent of their rights (…).’  That was the first opening. Besides states, other entities can be subjects of international law. The extent of their rights depends on the nature of those other entities, and ’their nature depends on the international community’. Legal pragmatism at its finest. And it gets better:

”Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane  by certain entities which are not States.”

Effectiveness

But that still didn’t answer the question. The next step was an examination of the nature of the UN. First, the Court determined that the UN is a general organization with broad tasks and powers. What it concluded on that basis is worth quoting in full:

”In the opinion of the Court, the Organization was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. (…) It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.”

So, in order for the UN to be effective, the UN’s founders must have ’clothed it’ with legal personality, and so it such legal personality. You can question whether the Court means to say that legal personality must be assumed in order to be effective, or that it must be assumed because the founder’s must have found it necessary to be effective. In any case, the Court was being pragmatic and idealistic at the same time.This principle of effectiveness has been with the law of international organizations ever since.

Aftermath

Count Bernadotte is not mentioned once in the Reparation for Injuries Opinion. But ultimately, Israel agreed to pay the United Nation 19.500 pounds, and did so in 1950. The family of Count Bernadotte did not file a claim against Israel, the assassins were never caught, and the Israeli-Arab conflict continues to this day. And the United Nations and international organizations in general became a permanent fixture in the international legal and political arenas.