International Court of Justice & Election of Judges (Download PDF)

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Next Week! ! Economic Survey 2017 - 18 πŸ“Ή - Why this Topic? Dalveer Bhandari representing India has been re-elected as ICJ judge. His reelection would lend support to Kulbhushan Jadhav case currently pending before the court.

International Court of Justice & Election (in English)
  • International Court of Justice (ICJ) is the highest judicial body having trans-national jurisdiction. It is filling several vacancies, with the terms of five serving judges coming to an end.

πŸ‘Œ What is the ICJ?

Established: 1946 after half a century of international conflict in the form of two World Wars.

  • Is the primary judicial branch of United Nations (UN)
  • Headquartered in Peace Palace in The Hague, Netherlands
  • Settles legal disputes submitted by states providing advisory opinions on legal questions
  • Cases and questions are submitted by authorized international branches, agencies, and UN General Assembly.

πŸ“ Methods of Dispute Settlement

  • Negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements; good offices
  • Mediation: Places the parties to a dispute in a position in which they can themselves resolve their dispute thanks to the intervention of a third party. (Ancient India and Islamic World - negotiation)
  • Arbitration: Dispute is submitted to the decision or award of an impartial third party, so that a binding settlement can be achieved. (Greece, China, Arabian Tribe, Europe and Papal - less formal than court)
  • πŸ‘Œ Also refer - Arbitration and Conciliation Act 1996 (amended in 2015)

History

Hague Peace Conferences & Permanent Court of Arbitration (PCA)

  • Hague Peace Conference of 1899, convened at the initiative of Russian Czar Nicholas II
  • 1899 Convention made provision for the creation of permanent machinery which would enable arbitral tribunals to be set up as desired and would facilitate their work - Permanent Court of Arbitration (panel of jurists designated by each country acceding to the Convention each such country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen)
  • PCA established in 1900 and got functional in 1902

Permanent Court of International Justice (PCIJ)

  • After WW-I
  • Hear disputes and give advisory opinion to the Council or by the Assembly of the League of Nations
  • Between 1922 and 1940, PCIJ dealt with 29 contentious cases between States and delivered 27 advisory opinions.
  • PCIJ originally drew up in 1922 and was subsequently revised on three occasions, in 1926,1931 and 1936

International Court of Justice (ICJ)

Outbreak of war in September 1939 had serious consequences for the PCIJ. After last sitting on 4 December 1939, PCIJ did not deal with any judicial business and no further elections of judges were held. In 1940 the Court removed to Geneva, a single judge remaining at The Hague, together with a few Registry officials of Dutch nationality.

Committee under Sir William Malkin held 19 meetings & was attended by jurists from 11 countries. In its report, which was published on 10 February 1944, it recommended that:

  • Statute of any new international court should be based on that of PCIJ
  • Advisory jurisdiction should be retained in the case of the new Court
  • Acceptance of the jurisdiction of the new Court should not be compulsory
  • Court should have no jurisdiction to deal with essentially political matters

Why a New Court?

  • As the court was to be the principal judicial organ of UN, it was felt inappropriate for this role to be filled by PCIJ, which had up until then been linked to League of Nations, then on the point of dissolution;
  • Creation of a new court was more consistent with the provision in the Charter that all Member States of UN would ipso facto be parties to the court՚s Statute;
  • Several States that were parties to the Statute of the PCIJ were not represented at the San Francisco Conference, and, conversely, several States represented at Conference were not parties to the Statute;
  • There was a feeling in some quarters that the PCIJ formed part of an older order, in which European States had dominated the political and legal affairs of the international community, and that the creation of a new court would make it easier for States outside Europe to play a more influential role

This has in fact happened as the membership of UN grew from 51 in 1945 to 193 in 2017.

Powers of ICJ

ICJ has jurisdiction over:

International Court of Justice
  • Disputes between countries
  • Cases pertaining to violation of human rights according to international law.
  • Cases related to judicial arm of the United Nations.
  • The UN Security Council is authorized by Chapter XIV of the United Nations Charter to enforce Court rulings, but enforcement is subject to veto by permanent members of the Security Council.

History of ICJ

  • ICJ was established in 1945 by the UN Charter
  • Permanent Court of International Justice lost support, as it was not able to enforce its mandate, especially during the intervening war years.
  • ICJ has passed many landmark judgements, but their enforcement are not done properly by the UN Security Council.

πŸ“ How are ICJ Judges elected?

  • The ICJ has a total strength of 15 judges elected to nine-year terms of office by members of the United Nations General Assembly and the Security Council, where polling takes place simultaneously but independently.
  • To be elected, candidate must have an absolute majority in both bodies
  • To ensure continuity for pending cases, elections are conducted triennially only for a third of the 15-member Court.
  • Elections are held in New York during the autumn session of the United Nations General Assembly, and the elected judges enter office on February 6 of the subsequent year.
  • After the Court is in session, a President and Vice-President are elected by secret ballot to hold office for three years.
  • If a judge dies in office, resigns, or is incapacitated, a special election is held as soon as possible to fill the vacancy
  • Vacancy is filled only for the unexpired duration of the tenure.

Ensuring Representation

  • Court has a rigid ethno-cultural formula for representing β€˜main forms of civilization and the principal legal systems of the world.’
  • πŸ‘Œ Of the 15 judges, it is mandated that three should be from Africa, two from Latin America and the Caribbean, three from Asia, five from Western Europe and other states, and two from Eastern Europe.
Jurisdiction of the International Court of Justice

Who Nominates Judges from Member Countries?

  • All states in Statute of the Court can propose candidates.
  • Selection process is apolitical by the members of the Permanent Court of Arbitration designated by that state to represent its interests in the Court (by the four jurists who can be called upon to serve as members of an arbitral tribunal under the Hague Conventions of 1899 and 1907)
  • Each group can propose a maximum of four candidates, of which only two may be from their own nationality.
  • No two judges may be nationals of the same country. Essentially, that has meant common law, civil law and socialist law (now post-communist law) .
  • Groups are allowed to nominate the judges even from countries not party to the Statute.

Criteria for Judge Selection

πŸ‘Œ All nominees for ICJ judge should have:

  • A β€˜high moral character’
  • Credentials of highest judicial officials of respective countries.
  • Recognized competence in international law.

Once elected, Member of the Court is a delegate neither of the government of his own country nor of that of any other State. Members of the Court are independent judges whose first task, before taking up their duties, is to make solemn declaration in open court that they will exercise their powers impartially and conscientiously.

Benefits

  • Each Member of the Court receives an annual salary consisting of a base salary (which, for 2016, amounts to USD 172,978) and post adjustment, with a special supplementary allowance of USD 15,000 for the President. The post adjustment multiplier changes every month and is dependent on UN exchange rate between the United States dollar and the euro. On leaving the Court, judges receive an annual pension which, after a nine year term of office, is equal to 50 % of the annual base salary.

Dismissing Judge of ICJ

  • To keep the ICJ judges insulated from political influence judge can only be dismissed by unanimous opinion of all peers.
  • πŸ‘Œ Dismissal has never happened in the 72-year history of the ICJ.

Recent Case of Kulbhushan Jadhav

  • Kulbhushan Sudhir Jadhav (born 16 April 1970) is an Indian national who was arrested in Balochistan, Pakistan, over charges of terrorism and spying for India. His case is currently being fought at ICJ.

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International Court of Justice & Election (in English)

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- Published/Last Modified on: February 7, 2018

International Relations/Organizations

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