Abstract
In spite of its glorious record and the respect which was attached to the name of the Permanent Court of International Justice (PCIJ) in 1945,1 when a new international organization was formulated at the San Francisco conference, the Court was re-established under a new name, the International Court of Justice (ICJ), for political rather than juristic considerations.2 But in its “reincarnation”, the loose connection of the old World Court with the League of Nations was replaced by the integration of the new Court into the United Nations as its “principal judicial organ” and the Statute of the Court was made part of the United Nations Charter (Art. 92). Thus all members of the United Nations became ipso factoParties to the Statute of the Court (Art. 93). But though it was a new Court with a new name which came into existence in 1945, the chain of continuity was not broken, and the new Court stepped into the shoes of the old Court, with the same organization and virtually the same Statute.3 With a satisfactory record, of PCIJ and its international composition having a body of highly competent and great jurists of the world as its judges, there is little wonder that the ICJ was inaugurated with high hopes and great expectations. As P.H. Spaak, first President of the General Assembly, said at the inaugural sitting of the International Court of Justice on April 18, 1946:
I would not venture to assert that the International Court of Justice is the most important organ of the United Nations...but I am convinced that it is of quite exceptional importance...I am deeply convinced that peace will not be established until countries have recognized the truth that there can be no civilized world nor any lasting peace, if there be not complete and absolute respect for international jurisdiction and its judgments.4
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References
See Report of the UN Committee of Jurists which said that the Court “had functioned to the satisfaction of the litigants”. UNCIO DOC. vol. 14, p. 822.
See R. P. Anand, International Courts and Contemporary Conflicts, (Bombay, 1972), p. 64.
Report of Subcommittee 1V/1/A, UNCIO DOC. vol. 13, p. 384.
Year Book of the International Court of Justice (1946–47), p. 31.
See Leo Gross, “Compulsory Jurisdiction under the Optional Clause: History and Practice:, in Lori Fisler Damrosch, The International Court of Justice at a Cross-roads, (Dobbs Ferry, N.Y, 1986), p. 21; Shabatai Rosenne, The Law and Practice of the International Court, (New York, 1965) vol. I, p. 419.
Report of the Rapporteur of Committee IV/1, UNCIO DOC.913, IV/l/74(l), vol. XIII, p. 393.
Since 1951, 11 declarations under the Optional Clause had either lapsed or been terminated. These declarations were made by Bolivia, Brazil, China, France, Guatemala, Iran, Israel, South Africa, Thailand, Turkey and the Untied States. See Year Book of the International Court of Justice (1989–90), p. 63.
Five countries have withdrawn Connally-type reservations but it is still found in five declarations (Liberia, Malta, Mexico, Philippines and Sudan) under the Optional Clause. For details and an analysis of these damaging reservation, See Gross, note 5, pp. 22 ff.
Thus the United States declaration included “Vandenbarg” reservation which excluded all “disputes arising under a multilateral treaty unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court or (2) the USA specially agrees to jurisdiction”. This reservation has been included by El Salvador, India, Malta, Pakistan and Philippines in their declarations. See Year Book of the International Court of Justice (1989–90), pp. 62 ff.
See J. Patrick Kelly, “The International Court of Justice: Crisis and Reformation”, Yale J. Int 7, (1987), vol. 12, p. 350.
See C.H.M. Waldock, “Decline of the Optional Clause”, 32 Brit. Year Book Int. L. (1956), p. 269; See also Kelly, ibid.
Year Book of the International Court of Justice, (1989–90), p. 3.
out of 11 cases were filed by the United States or its Allies against the Soviet bloc countries. SeeYear Book of the International Court of Justice (1984–85), p. 54.
Trial of Pakistani Prisoners of War (Pak v. India), ICJ Reports, 1973, p. 347; Nuclear Tests cases (Australia v. France and New Zealand v. France), ICJ Reports, 1973 pp. 99, 145; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) Merits, ICJ Reports, 1986, p. 14, Hostages case (USA v. Iran) ICJ Reports, 1984, p. 3.
Corfu Channel Case, ICJ Reports 1949, p. 244; and Asylum (Second Phase) and H ay a de la Torre Case, ICJ Reports, 1951, p. 71.
See Kelly, note 10, p. 363.
Fisheries Jurisdiction cases (Iceland), ICJ Reports 1972, pp. 12, 30; Aegean Sea Continental Shelf case (Turkey), ICJ Reports 1978, p. 4; Hostages case (Iran), ICJ Reports 1980, p. 3; Nicaragua case, (Merits) ICJ Reports 1986, p. 14.
These cases included the two Fisheries Jurisdiction cases, ICJ Reports 1972, pp. 12 & 30; two Nuclear Test Cases, ICJ Reports, 1973, pp. 99, 135; Pakistani Prisoners of War, ICJ Reports, 1973, p. 347; Aegean Sea Continental Shelf case (ICJ Reports, 1978, p. 4), Hostages case, ICJ Reports, 1980, p. 3; Nicaragua case, ICJ Reports, 1984, p. 392, Border and Transborder Armed Actions (Nicaragua v. Honduras) ICJ Reports, 1987, p. 69; Certain Phosphates Lands in Nauru (Nauru v. Australia) ICJ Report’, 1989, Aerial Incident of 3 July 1988 (Iran v. USA), ICJ Reports, 1989; Boundary and Maritime dispute (Qatar v. Bahrain) ICJ Reports 1991.
E. Foda, The Projected Arab Court of Justice (The Hague, 1957), p. 168.
RC. Jessup, The Use of International Law, (Ann Arbor, 1959), p. 20; See also H.W. Briggs, “Confidence, apprehension and International Court of Justice”,Proc. Am. Soc. Int. L. (1960), pp. 25–28; Arthur Larson, “The Law Structure of Peace”, Tenn. L. Rev. (1960) vol. 27, p. 505.
William Samore, “National Judges v. Impartial Decisions: A Study of World Court Holdings”, Chi.-Kant L. Rev. (1956), vol. 34, p. 194.
John E. Read, “The place for international law and Justice in the years to come”,Report of 48th Conference of the International Law Association held in 1958, London, (1958), p. 663.
See R. R Anand, “The International Court of Justice and Impartiality between nations”, in R. P. Anand, Studies in International Adjudication (New Delhi, 1969), pp. 73, ff; Peter J. Liacorous, The International Court of Justice (Durham, 1962) Vol. II, p. 527; Samore, note 21, p. 201; G. Terry, “Factional behaviour on the ICJ: An analysis of the first and second Courts (1945–51) and sixth and seventh Courts (1961–67), N. U. L. Rev. (1975) vol. 10, p. 59.
Edith Brown Weiss, “Judicial independence and impartiality: A preliminary enquiry”, in Lori Fisler Damrosch (ed), The International Court of Justice at a Cross-roads, (Dobbs Ferry, N.Y, 1986), pp. 128, 129, 133.
Quoted in Edward Gordon, “Observations on the independence and impartiality of the members of the ICJ”, Conn. J. Int. L., (1987) vol. 2, p. 404.
See views of Scholars like Quincy Wright, F.S.C. Northrop, Adda Bozeman discussod by R. ?. Anand, “Attitude of the ‘new Asian-African Countries towards the ICJ”, in R. R Anand, Studies in International Adjudication, (New Delhi, 1969), pp. 53 ff.
See R. P. Anand, ibid, pp. 58–63. It is interesting to note that the position has reversed today because the Western countries are said to have lost confidence in the Court because of the presence of Asian-African judges. See supra.
See James Brown Scott, The Relation of the United States to the Permanent Court of International Justice, (New York, 1923).
A.S. Bustamante,The World Court, (New York, 1925), Introduction, p. (ix).
Interhandel case, dissenting opinion by Sir Hersch Lauterpacht, ICJ Reports 1959, pp. 101–102.
Thomas M. Franck,Judging the World Court. (New York, 1986), p. 2.
See quoted in Thorns Franck and Jerome M. Lehrman, “Messianism and Chauvinism in America’s commitment to Peace through Law”, in Damrosch, note 24, p. 17.
See R. P. Anand, “The United States and the World Court”, in R. P. Anand, note 23, pp. 1–36.
All these cases were discontinued because the other parties had not accepted the jurisdiction of the Court.
ICJ Reports, 1959, p. 6.
Military and Paramilitary activities in and against Nicaragua, ICJ Reports, 1984, pp. 169, 170.
Letter from Secretary of State George Shultz to the UN Secretary General (April 6, 1984) to modify the 1946 Declaration in Damrosch, note 24, p. 471.
ICJ Reports 1984, pp. 415–19.
By a Vote of 11 Votes to 5, the Court decided that Nicaragua had accepted its jurisdiction under the Optional Clause despite its failure to “formally” deposit its ratification, ICJ Reports 1984, p. 392. For a valuable critique of the case see B.S. Chimni, “The International Court and the maintenance of Peace and Security. The Nicaragua Decision and the US response” in Int. & Com. L. Q., (1986) vol. 35, pp. 960 ff.
Letter by the Davis R. Robinson, Legal advisor of Deptt. of State, to the Registrar of the Court,Am. J. Int. L. (1985) vol. 79, p. 439.
“US Statement concerning US withdrawal from the Nicaragua case, January 18, 1985” in Damrosch, note 24, p. 473. Also Am. J. Int. L. (1985) vol. 79, p. 439.
Ibid.
Ibid., p. 440.
But see comments by Judge Schwebel in his dissenting opinion against the President of the Court, Judge T.O. Elias. Judge Elias is reported to have said in a press interview in December 1984, that “if a State withdraws its acceptance of our jurisdiction without notice, that leads to anarchy and disorder”. He added: “A State that defies the Court will not get away with it. Although some States try to show that they do not care, they do in reality”. ICJ Reports 1986, pp. 314–15; see also Gordon, note 25, pp. 424–25.
Robinson, note 40, p. 441.
Quoted in Franck, note 31, p. 37.
See Monroe Leigh and Stephen D. Ramsey, “Confidence in the Court: It need not be a ‘Hollow Chamber’”, in Damrosch, note 24, p. 108; see to the same effect Leigh quoted in Franck, note 31, p. 38; Abraham D. Sofaer, “The United States and the World Court”, Proc. of the 80th Annual Meeting of Am. Soc. Int. L. (1986) p. 207.
Leigh and Ramsey, ibid., pp. 108–109. See to the same effect Fred L. Morrison, “Potential Anthony Clark Arend (ed.). The United States and the Compulsory Jurisdiction of the ICJ, (Charlottesville, Va. 1985), pp. 29 ff. Michael Reisman ”Termination of the US declaration under Art. 36(2) of the ICJ“, ibid., pp. 71 ff.; Anthony Clark Arend, ”The ICJ, International Law, US Foreign Policy“, ibid., pp. 190–96.
See Damrosch, note 24, p. 477; see also Sofaer, note 48, pp. 207–208.
Keith Highet, “Between a rock and a hard place—the United States, the International Court and the Nicaragua case”, Int. Lawyer (1987) vol. 21 no. 4, p. 1085.
Keith Highet, “Litigation implications of the US withdrawal from the Nicaragua case”, Am. J. Int. I., (1985) vol. 79, p. 1002.
See remarks by Oscar Schachter in discussion on “The United States and the World Court”, Proc. of the 80th Annual Meeting of Am. Soc. Int. L. (1986), p. 212.
Keith Highet, “You can run but you can’t hide’—Reflections on the US position in the Nicaragua case”, Virginia J. Int. L. (1987) vol. 27, p. 571.
Oscar Schachter, note 54, pp. 210–211.
Oscar Schachter, ibid.
Thomas Franck, “Icy day at the ICJ”, Am. J. Int. Z,, (1985) vol. 79, p. 379.
The Soviet Judge, Platon Morozon, had resigned from the Court for reasons of ill health and his successor had not been appointed.
ICJ Reports, 1986, p. 158.
Ibid., p. 159.
Ibid., p. 160.
ICJ Reports, 1986, p. 528.
Judge Manfred Lachs, “A few thoughts on the independence of Judges of the ICJ”, Colum. J. Int. L.t (1987) vol. *25, pp. 596–597.
Ibid., p. 597.
Ibid., p. 594.
See Edvard Hambro, quoted in Gordon, note 25, pp. 406–407.
See H.W. Briggs, “Confidence, apprehension and, the ICJ”, Proceedings of the Am. Soc. Int. L. (1960), pp. 31. See also Professor Dugard in discussion on “Untied States and the World Court”, Proc. of the 80th Meeting of Am. Soc. Int. L. (1986), pp. 217–221;
See Philip C. Jessup.The Use of International Law, (Ann Arbor, Mich. 1959), p. 124.
See quoted by Daniel Patrick Moynihan, “International Law and International Order”, Del Coll. L. Rev. (1984), vol. 4 p. 878.
J.H. Ralston, A Quest for International Order (Washington D.C., 1941) p. 55.
The Court gave its final judgment on merits on 27 June 1986 in favour of Nicaragua. ICJ Reports, 1986, p. 14 The UN Security Council twice addressed the question of enforcement of the Nicaragua judgment on July 31 and October 28, 1986, but the United States vetoed the draft resolutions. On Nov. 6, 1986, the General Assembly passed a resolution (by 93 votes to 3, with 47 abstentions) urgently calling for full and immediate compliance with the judgment of the Court. UN Doc. A/41/PV.53, p. 92 (Nov. 6, 1986). This is the first time that a veto has been used to bar application of Art. 94 of the Charter for enforcement of the Court’s decision. See Keith Highet, note 48, pp. 1092–1095.
These are (1) Maritime delimitation in the areas between Greenland and Jan Mayen (Denmark v. Norway); (2) Aerial incident of 3 July 1988 (Iran v. USA); (3) Certain Phosphetes Lands in Nauru (Nauru v. Austrlia); (4) Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal; (5) Territorial Dispute (Libya v. Chad); (6) East Timor (Portugal v. Australia); (1) Maritime Boundary (Guinea Bissau v. Senegal); (8) Passage through the Great Belt (Finland v. Denmark); (9) Sovereignty over islands. Shoals and Maritime boundary (Qatar v. Bahrain); and Dispute Concerning Crash of Pan Am Flight 103 on December 21, 1988 in Lockerpie (UK) (Libya v. UK/Libya v. USA).
See Keith Highet “The Peace Palace Heats Up: The World Court in business again”,Am. J. Int. L. (Oct. 1991) vol. 86, p. 650.
de Archega, “The amendments to the rules of procedure of the ICJ”, Am. J. Int. L. (1973), vol. 67, p. 2.
See Stephen M. Schwebel, “Reflections on the role of the ICJ”, Wash. L. Rev. (1986) vol. 61, p. 1061.
ICJ Reports, 1984, p. 246.
ICJ Reports, 1986, p. 554.
ICJ Reports, 1991, p. 15.
Judge Shahabuddeen expressed such doubts in his dissenting opinion to the Order of the Court concerning the Nicaragua Intervention in the EL Salvador- Honduras case.ICJ Reports 1990, p. 18. (order of Feb. 28).
See Stephen M. Schwebel, note 75, p. 1061.
Keith Highet, note 73, p. 649.
ICJ Reports, 1962, p. 312.
See quoted in Franck, note 31, p. 23.
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Anand, R.P. (2004). The World Court on Trial. In: Studies in International Law and History. Developments in International Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5600-6_5
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