Samridhi Talwar, a 3rd year Law Student from University School of Law and Legal Studies, GGSIPU discusses the future of the principal judicial organ of United Nations : International Court of Justice.
We are at the advent of an era that shall prove to be an oyster for the cardinality of the International Court of Justice. The ICJ was established as the principal judicial organ of the UN in 1946. It is equipped with the capacity to iron out disputes on myriad issues including the use of nuclear weapons, genocide, conservation of the environment, use of force, maritime and land boundaries, etc. To resolve these issues, the Court consists of a panel of 15 judges belonging to countries all around the world from various geographic regions, cultures, ethnicities, and principal legal systems, who serve in their capacities. The Court primarily is aimed at resolving contentious legal disputes between states. However, this function is restricted on account of the imperativeness of the consent of countries to have the dispute settled by the ICJ. The Court is also endowed with the capacity of advisory proceedings. According to this function, the Court provides authoritative guidance on issues at the core of international law to the United Nations General Assembly, the United Nations Security Council, and any other organs of the United Nations after authorization from the General Assembly. The International Court of Justice has been instrumental in solving various international disputes such as Kosovo’s Declaration of Independence, the case of Australia against Japan1, the Northern Sea Continental Shelf case2, the case of Argentina against Uruguay3 etc.
In this essay the author will be discussing what the future holds for the International Court of Justice with a highlight on its role as the principal judicial organ of the UN, the non-binding nature of the judgments, it’s potential to transform the landscape of sustainability and environment in the world and specific suggestions to enhance the work of ICJ in the future.
To determine the future of the World Court, it is imperative to understand its past and present. The United Nations Charter lays down that as the principal judicial organ, the International Court of Justice functions as a body created with the list of maintenance, protection, and safeguard the legality of proceedings and policies that steer the United Nations and its organs and agency. Since its inception, this Court has been attempting to thrive on its purpose of settling international disputes and resolving issues that could potentially lead to a breach of peace.4 The ICJ has been delivering landmark judgments including the Kulbhushan Jadhav Case (India v Pakistan)5, LaGrand case (Germany v. the United States of America)6, Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v. Albania)7, Gabčíkovo-Nagymaros Project case8, North Sea Continental Shelf case (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands)9, Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria)10, Nuclear Weapons case11, Aegean Sea case12, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), etc.13
Despite the various glorious judgments to act as feathers in the cap of the World Court, it suffers from the grave limitation of consent. The functioning of the Court is majorly dependant on the trust that states place in the ICJ.14 consent is imperative according to the fundamental principles that govern the International Court of Justice. The entire premise of the jurisdiction of the ICJ is based on consent. By this principle of international law, a state cannot be bound to seek recourse or submit a dispute with any other country through the process of any likes of peaceful settlement inclusive of mediation and arbitration without its consent. A State cannot be summoned to appear in the ICJ regarding a dispute until it wilfully conforms to the requirement of consent and submits the issue to the jurisdiction of the World Court. The further evolution and future effectiveness and efficiency of the International Court of Justice are also dependent on the trust that states place in the Court. Though theoretically, the regulation of relationships by virtue of law is better than the regulation by force. However, the states are sovereign entities with complete authority to grant consent and conform to the Court’s jurisdiction or deny it.15 The first step to a more impactful future of the ICJ is that the states should state placing a greater degree of trust in the Court, which would, in turn, lead to an expansion of the jurisdiction of the Court.
The limitation that further arises post the issue of consent is the non-compliance of states to the judgment. The UN Charter provides for strong ties and a harmonious relationship between the International Court of Justice and the United Nations Security Council.16 The ICJ is endowed with the role of performing the task of designating responsibilities and rights in a congruous manner and adjudicating on competitive legal claims and disputes of states.17 The Security Council has the responsibility of giving effect to or executing the judgment in cases where the judgment debtor fails or refuses to comply with the decision of the World Court.
However, ensuring the compliance of a decision of the International Court of Justice has its own challenges. The primary hurdle in the effective execution of decisions is that the United Nations Charter provides for the enforcement of judgments of the ICJ alone rather than enforcing all the decisions of the ICJ, i.e. interim decisions and final judgments. Moreover, the Security Council is not bound to enforce each and every judgment of the Court and is equipped with complete discretion of whether to enforce the decision or not and if it chooses to enforce it, the measures taken to enforce the decision.18 Thus, the enforcement of the judgments given by the ICJ is marred with politics of the Security Council and is without any engagement of the decision-taking Court. Though relatively infrequent, the non-compliance of judgments has been an issue and will linger as an issue because of the lack of an international body such as the International Police Force to keep a check on the implementation of the judgment.
However, this limitation has neither always nor completely hindered the International Court of Justice from effectively adjudicating on disputes due to the presence of certain sanctions that are used to ensure that the states duly satisfy their obligations. An illustration of the same is the Australia v Japan case19 where the Court was able to effectively protect global values and resolve the case.
Further, in the future, the International Court of Justice could play a larger kaleidoscopic role in international conflict resolution. Certain suggestions for the same are that the Court could also bring into its ambit political disputes and issues apart from legal issues. This is because political issues are the root of most conflicts that arise. Moreover, the consent-based jurisdiction hinders the Court from dealing with grave issues merely because the wrongdoer state does not consent to its jurisdiction. Thus, consent-based jurisdiction could be altered to make the Court more effective. The jurisdiction of the Court could also expand to individuals and organizations so they can also avail remedies from the World Court.20
In the coming future, the role of ICJ and other Courts and tribunals has the potential to grow manifold as tensions among states grow with various issues including nuclear threats, pandemics, threats to sovereignty, etc. The ICJ shall have a proactive role in resolving disputes, maintaining peace, ensuring human rights, enhancing the political development of states, safeguarding child rights, gender disparities, and rights of refugees, etc.21 The world is gradually coming to realize the cardinality of the ICJ and the imperative role that they will potentially play in preventing baseless wars and maintain welfare and peace.
The next part of the essay will discuss the role and potential future of the International Court of Justice in the protection and safeguard of the environment.
The world has been a witness to the gradual expansion in the role of the International Court of Justice in the protection and preservation of the environment. The World Court has duly recognized the imperativeness of encountering issues and concerns relating to the environment in a holistic manner. Therefore, there has been a spur in the cases relating to the environment on the Court’s radar.
The ICJ, in accordance with the UN Charter, is well within its bounds to resolve and settle disputes that involve environmental issues by identifying and adjudicating on questions pertaining to environmental law. This is based on the fact that international environmental law constitutes an important element of the community’s public order. By taking environmental issues in its ambit and adjudicating on the same, the Court fulfils its basic objective of resolving disputes amongst states alongside articulating the general values that are a contributing factor in the evolution and development of the law.22 However, it is pivotal to understand that the International Court of Justice can only resort to the issues of the environment in a matter before it if the issue pertaining to the environment is principally involved in the rights and obligations of the parties to the case and is definite in terms of the context of the case. This is on account of the fact that the ICJ is a Court of law.
Indeed, the Court can persevere in leaving its mark in protecting the environment as done in the Whaling case (Australia v Japan),23 Pulp Mills on the River Uruguay case (Argentina v Uruguay),24 Corfu Channel case,25 Barcelona Traction case,26 Gabčíkovo-Nagymaros Project case (Hungary v Slovakia),27 Nuclear Tests case28 and the South West Africa Case.29 However, its hands are tied by the UN Charter, according to which the Court cannot tackle the impending and burning issues and concerns regarding the environment suo moto. The ICJ can only resort to passing a judgment relating to safeguarding the environment of a case is brought to the Court, and the case has been substantiated to conform to the Court’s competence.30 Though the ICJ is expanding its feet in the protection and conservation of the environment through its bilateral adjudications, the role of ICJ using this mode in environmental protection is limited in scope.
It is extremely crucial that the protection of the environment is duly addressed and tackled by the International Law, specifically by the World Court. It is safe to say that the ICJ has taken the baton and is paving the way to a future where realms of environment and sustainability will also be effectively handled by the world Court through various judgments.31 It has been successfully established by the ICJ in multiple cases that a general obligation and duty of all states exist to make certain that all activities are undertaken by them within their control, sovereignty and jurisdiction should duly respect the environment of areas that are beyond their national control along with the environment of other states.32 This principle is now considered as a part of the customary international law. The ICJ has also established the principle that States have an obligation towards the entire international community cohesively with regard to environmental concerns.33 Moreover, recently the World Court significantly emphasized that respect for the environment is not just a duty attached to states but also holistically to the entire mankind.
However, another avenue where the International Court of Justice can potentially play a role in safeguarding and protecting the environment is through its advisory jurisdiction. Despite the lack of a concrete issue between states raised before the Court, the Court has the authority to articulate the principles of law that are involved in certain issues that are raised by the United Nations General Assembly, the United Nations Security Council, or any other organ of the United Nations.34 This concept, though is currently neither theoretically developed nor practically feasible, can be a great weapon in the sphere of environment protection and conservation.
With the concerns for the environment and sustainability mushrooming by the second, the International Court of Justice may consider re-establishing the Permanent Environmental Chamber that was abolished in 2006 and actually putting it to use to resolve issues pertaining to environmental degradation and sustainability by States.35 Moreover, it is imperative that the Court should start promoting and considering, in its judgments, a test to balance the legitimate interest of states for development with the overall concerns of the environment, as has already been held by the Court.36 The International Court of Justice could also take steps to metamorphose environmental rights into human rights. Such human right should entail the right protection of the environment and a corresponding duty of monitoring and environmental impact assessment. In the future, the possibilities of States using environmental issues directly in litigation in the International Court of Justice are very bright and foreseeable.37 This shall consequently result in environmental principles constituting a branch of interpretation of legal issues by the Court. Lastly, since environmental issues are looming as a threat to mankind, it is viable that the United Nations grants the International Court of Justice suo moto jurisdiction in cases pertaining to matters of environment and sustainability. The suo moto jurisdiction may also be coupled with provisions that may ensure enforceability of the decisions of the Court.
In conclusion, the future of the Court is neither pessimistic nor unrealistic, until the time the world’s expectations regarding the International Court of Justice are managed realistically. Since the aboriginal intention regarding this Court at the founding of the UN was that the ICJ becomes ‘at the very heart of the general system for the maintenance of peace and security’. One need only glance at current news, however, to know that this objective has not, nor is it ever likely to, come into complete fruition. No doubt most disputes and issues in the international community will continue to be resolved and settled, not via the determinations of rights in Court and the pathological conduct of the judges applying international law, but by virtue of diplomacy and negotiation. This ‘principal judicial organ of the United Nations’ will continue to function as it always has: as a limited, but important, forum for resolving international disputes until certain changes are made to transform its role. Performing the role of the principal judicial organ of the UN, the ICJ has been widening its horizons to the corresponding developments in the society and the international community. The same is visible from the jurisprudence and achievements in the fields of human rights, refugee rights, and environmental law. When it is not burdened with unrealistic expectations, the performance and importance of the Court can be better appreciated.
Samridhi Talwar is a 3rd year Law student from University School of Law and Legal Studies, GGSIPU
1. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, ICJ Reports 2014.
2. Continental Shelf (Tunis. /Libya)  ICJ Rep 18; Continental Shelf (Libya/Malta)  ICJ Rep 13.
3. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, April 20 2010, ICJ Reports (2010).
5. Jadhav Case (India V Pakistan) 2019 (ICJ).
6. LaGrand (Germany v. United States of America), Judgment, June 27 2001, ICJ Reports (2001).
7. Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment, April 09 1949, ICJ Reports (1949).
8. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, September 25 1997, para. 140, ICJ Reports (1997).
9. North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, February 20 1969, ICJ Reports (1969).
10. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, October 10 2002, Reports (2002).
11. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, July 08 1996, ICJ Reports (1996).
12. Aegean Sea Continental Shelf (Greece/Turkey), Judgment, December 19 1978, Reports (1978).
13. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, September 13 1990, ICJ Reports (1990).
14. Future Work for International Court of Justice Depends on States’ Trust, Its President Tells Sixth Committee, Offering Insights into Case Law, UNITED NATIONS, (June 04, 2020, 6:20 PM), https://www.un.org/press/en/2017/gal3558.doc.htm.
15. Aloysius P. Llamzon, Jurisdiction and Compliance in Recent Decisions of the International Court of Justice, OXFORD ACADEMIC, (June 04, 2020, 6:15 PM), https://academic.oup.com/ejil/article/18/5/815/398671.
16. THE UNITED NATIONS CHARTER § Art. 94(2).
21. The Future of International Courts and Tribunals: What Developments and Models Will We See in 20 Years?, BRANDEIS INSTITUTE FOR INTERNATIONAL JUDGES – 2013, THE INTERNATIONAL RULE OF LAW IN A HUMAN RIGHTS ERA, (June 04, 2020, 6:35 PM) https://www.brandeis.edu/ethics/pdfs/internationaljustice/biij/Future_Intl_Courts_2013.pdf.
22. Dr. Jorge E. Viiuales, The Contribution of The International Court of Justice to The Development of International Environmental Law: A Contemporary Assessment, FORDHAM INTERNATIONAL LAW JOURNAL VOLUME 32, ISSUE 1, 232 (2008).
26. Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium/Spain), Preliminary objections, Judgment, July 24 1964, ICJ Reports (1964).
29. South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), Judgment, July 18 1966, ICJ Reports (1966).
30. Afshin Akhtarkhavari, Power, Environmental Principles and the International Court of Justice, AUSTRALIAN YEAR BOOK OF INTERNATIONAL LAW VOL 28, 91.
31. Hisashi Owada, International Environmental Law and The International Court of Justice Inaugural Lecture at The Fellowship Programme on International and Comparative Environmental Law, IUSTUM AEQUUM SALUTARE II, 5 (2006).
IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.