The ICJ and peaceful settlement of disputes

Under the United Nations system, conflict management can be broadly categorized into two techniques: diplomatic procedures and adjudication. While the former employs an attempt to settle differences either by the contending parties themselves or with the assistance of other entities by deliberation and fact – finding methods, the latter entails determination by an impartial and disinterested third party of the legal and factual issues involved, either by arbitration or by the decision of judicial organs [1] .

So far as an institutional and statutory mechanism is concerned, the International Court of Justice is amply empowered to ensure that international disputes are peacefully resolved. The Charter of the United Nations serves as a backdrop for the Court to assert its jurisdiction to entertain disputes that imperil international peace and security. The nexus is to be found in the provisions of the Charter itself. Article 1 sets forth the “maintenance of international peace and security" as the first purpose of the United Nations while Article 2 lays down that “all members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered". Furthermore, the role of the ICJ in this regard is bolstered by the inclusion of judicial settlement among the means of peaceful settlement of disputes enumerated in Article 33(1) of the Charter. Thus, the ICJ being a principal judicial organ of the United Nations (Article 92 of the Charter) has both the authority as well as the responsibility of fostering the cause of international peace and security by means of peaceful settlement of international disputes as it is possessed with the structural means to take action [2] .

Jurisdiction of the ICJ

The application and development of the principles of international law has always been at crossroads. On the one hand, it struggles to establish a uniform, all – encompassing system of rules for every nation to follow while on the other, it is also under the onus of ensuring that competing interests of nations are served to the utmost, as far as workable. One of the pertinent manifestations of this dilemma that international law has eternally been in explains the rationale behind the jurisdiction of the International Court of Justice. The efficacy of any institution, whether municipal or international, depends upon the nature and extent of authority it emanates and the influence it asserts on its subjects. The jurisdictional aspect of the ICJ is a major reason why it had to deal with an empty docket during its formative years. Ever since the inception of the United Nations system as well as the establishment of the World Court there is no legally binding instrument that imposes an obligation upon States to compulsorily submit their legal disputes to the ICJ for adjudication [3] .

The jurisdictional clause, Article 36 of the Statute of the ICJ, reads:

“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…………………"

Embodied in Article 36, paragraph 2 is the system of optional clause or compulsory jurisdiction, it being optional for States to make a unilateral declaration to submit to the jurisdiction of the ICJ [4] . Ironic is the use of the term “compulsory" as the jurisdiction of the ICJ is anything but that. The jurisdictional reservation is the foremost methodological predicament that confronts the ICJ wherein the respondent State claims the Court’s lack of jurisdiction under the compromissory clause of a treaty or convention or in the declaration of acceptance under which the applicant State has based its application [5] .

ICJ and the crisis of confidence

Jurisdiction is perhaps only one reason why the portals of the World Court were deprived of litigants for a considerable period of time. The “crisis of confidence", as that particular phase in the history of the ICJ is referred to, witnessed the Third World countries losing faith in the competence of the Court to adjudicate in a free and impartial manner.

ICJ and its efficacy

The germane criteria for determining the efficacy of a particular means of peaceful dispute settlement include the status and organization of inter-state relations, the interaction of powers and aspirations to harmony, political intentions and psychological sensibilities, legal obligations, social pressures et al [6] .

Whether or not the ICJ emerges as a practicable means of peacefully settling international disputes also depends upon the intention of State parties while referring a dispute to the World Court. Litigation can assume wide interpretations for State parties. States may not seek a definitive settlement but may expect only a decision which may narrow the conflict between them or steer the dispute closer to resolution [7] . There are varied reasons as to why adjudication is not considered to be the final move in the process of litigation by parties. One of these is that States prefer step-by-step solutions to problems even though it might compel them to sacrifice a measure of control over their disputes [8] . What lures States into adopting this modus operandi is avoidance of the complex procedure and problems of implementation. There have been umpteen instances wherein the Court’s jurisdiction has been sought not for final adjudication but for settling an interim question, the Ambatielos [9] and the North Sea Continental Shelf [10] cases being two illustrations. While in the former, the only question was whether the United Kingdom was under an obligation to refer a commercial dispute with Greece to arbitration, the latter involved the litigating parties asking the Court only for an indication of the relevant principles and rules for delimiting their continental shelf boundaries in the North Sea, leaving the delimitation itself to subsequent negotiation.

The intent of State parties while resorting to litigation is to be established largely by interpretation of the compromis that they have agreed to. In cases where there is an apparent or genuine uncertainty as to the precise intentions of the parties, the Court has taken up the responsibility of reconciling the incongruity and establishing the scope of its competence [11] . As in the Libya-Malta Continental Shelf [12] case, the question referred to the Court was with regard to its own competence whether to draw a boundary line on the map delimiting the continental shelf or merely provide an indication as to the relevant principles and rules (in an approach similar to that adopted in the North Sea Continental Shelf case). Representing an ideal example of how the extent of the commitment of the State parties to the Court’s jurisdiction needs to be clarified, the Court held that it was appropriate to draw a boundary line delimiting the continental shelves of the respective nations [13] . The consequence of such an approach adopted by the States is that the role and significance of the Court is diluted from that of an adjudicator of the contentious issue to one of settling interim questions as to interpretation of the compromis or the treaty between the litigating parties.

In world torn apart by wars and intolerance of an extreme kind, peaceful settlement of disputes is a need that everyone vouches for. The founding fathers of the United Nations Organization (UNO), fresh out of the excesses committed during the Second World War, put their best foot forward to establish peace and maintain security in the world.

The means to this end is essentially served by Article 33 of the UN Charter. The said Article reads that “…………………………………………………"

Comprehensively worded and seemingly all-encompassing, Article 33 provides for certain mechanisms for the peaceful settlement of international disputes. Any discussion with regard to Article 33 would fall short without adequately defining what a dispute means. Even though it is difficult to accord a specific definition, the approach of the Permanent Court of International Justice (PCIJ) in the Mavrommatis Palestine Concessions (Jurisdiction) [14] case provides a much – needed direction. The Court declared that a dispute could be regarded as “a disagreement over a point of law or fact, a conflict of legal views or of interests between two persons." The fundamental difference between the other mechanisms and judicial settlement or arbitration is the involvement of a third-party to adjudicate the dispute.

The distinction between legal and political disputes

International law is primarily the interplay of relations between various nations of the world. And International law is largely international politics with nation States concerned just as much about the policies of other nations as they are about their own. A judicial tribunal is entrusted with the function of adjudicating a dispute on sound legal principles thereby preventing it from getting swayed by political or other such considerations which might fall beyond its purview. Should, in that case, a judicial tribunal refrain from adjudicating a claim that touches upon pressing issues of political relevance and are not confined to only questions of legal importance? This has been a predicament that has plagued the functioning of the ICJ since time immemorial.

States are political entities and their disputes inevitably involve a political dimension [15] . Two pertinent questions are considered by the Court while deciding whether the political aspect of a dispute would have an impact on the Court’s power to adjudicate. The first view says that a dispute referred to the ICJ which cannot be resolved by applying legal criteria should not be adjudicated by the Court unless its competence has been extended by the parties. A corollary to the first principle, the second principles says that notwithstanding the background or political ramifications of a case, the Court must adjudicate in fulfillment of its function as a decision-making body [16] . The second view has been endorsed by the Court in numerous advisory opinions and subsequent cases, one of those being the Aegean Sea Continental Shelf Case [17] , where the Court was faced with the question whether the dispute between Greece and Turkey was of a highly political nature.

The pertinent question in cases where the dispute involves a highly political issue is that of justiciability, which can be settled only after an exposition of what is a purely “legal dispute" and is subject to the jurisdiction of the ICJ. According to the view put forth by Judge Sir Robert Jennings, “there seems to be no by nature inherently political or non – justiciable dispute if a claim brought before the Court is clearly reduced and refined in a form of specific issues of fact and law so that it can be the subject of rational argument and suitable for judicial determination [18] ."

The Nicaragua [19] cases is a pertinent example where the Court refused to get bogged down by consistent persuasion by the United States to not adjudicate as the case involved an issue that lay beyond the ambit of the Court’s subject – matter. One of the objections put forth by the United States was that Nicaragua’s claim that the US was engaged in an unlawful use of armed force, or breach of the peace, or acts of aggression against Nicaragua was a matter which was committed by the Charter and by practice to the competence of other organs, in particular, the United Nations Security Council (UNSC) and was therefore not a matter for the Court [20] . This brought into the forefront the concept, that of “separation of powers", which even though is widely accepted in municipal law does not find broad acceptance in international law. Disputes that call for peaceful settlement are usually preceded or are likely to result into the use of force thereby ushering into inevitable violence. Thus, any initiative in this regard involves consideration of aspects for maintenance of international peace and security, a function that the Security Council is entrusted with [21] . Does this mean that the Court should abstain from exercising its judicial function in matters that are simultaneously in consideration before the Security Council? The Court was forthright in this respect thereby concluding that the responsibility conferred upon the Security Council for the maintenance of international peace and security was “primary", but not “exclusive", and that there was no explicit demarcation of functions between the Security Council and the Court. The Court observed that:

“[t]he Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both the organs can therefore perform their separate but complimentary functions with respect to the same events." [22]