Jurisdiction Of The ICJ
‘The authority of a court or official organization to make decisions and judgments’ [1] Judicial or quasi-judicial bodies right to exercise its power over the case to deliver a judgment is what means as jurisdiction. There are types of jurisdiction, talking specifically about India it differs according to nature of case like if it’s a criminal case the type of crime and its years of punishment decides the type of court in which it would be entertained likewise in a civil case the value may it be in regard with property or anything which holds monetary value decided the type of court, in addition to this the higher court holds appellate jurisdiction too. There is also a direct jurisdiction to High Court or Supreme Court in India, when there is a violation of the fundamental right of a person by state, one can exercise his right of remedy directly in the High Court or Supreme Court under article 32 & 226 of Indian Constitution.
The matter of jurisdiction differs in the Federal country, to brief it, considering an example of the USA, there are 2 separate court systems in the US ‘Federal’ & ‘state’. The jurisdiction depends on the type of case. Federal cases are tried in federal court, all other in state courts. The federal district court and the Supreme Court (in certain cases) have original jurisdiction whereas the federal court of appeal and the Supreme Court has appellate jurisdiction. There is also a concurrent jurisdiction which allows certain types of cases to be tried in either the federal or state court. Supreme Court is considered as the highest court in federal system.
History Behind formation of the International Court of Justice and its Jurisdiction
The idea for the creation of an international court to arbitrate international disputes first arose during various conferences that produced the Hague Convention in the late 19th and early 20th centuries. The different community at world level in early 19th century thought about an international non-partial kind of judicial body or committee which would advise out UN or the countries approaching it. There was war-like situation at that point in time which was needed to be controlled. The history starts with the League of Nations playing the role of what the ICJ plays today. They were supposed to control the outburst of world war in which they miserably failed. Thereafter the idea of such committee emerged out. The body subsequently est. the Permanent Court of Arbitration, was the precursor of the Permanent Court of International Justice [PCIJ], which was est. by the League of Nation. But due to the Outbreak of war in September 1939, it inevitably had serious consequence for the PCIJ.
After its last public sitting on Dec 4, 1939, the PCIJ did not in fact deal with any judicial business. From 1921 to 1939 the PCIJ issued more than 30 decisions and delivered nearly as many advisory opinions. In 1942 the US secretary of state and Foreign secretary of UK declared themselves in favour of the est. or re-est. of an international court after the war, and the inter-American judicial committee recommended the extension of the PCIJ’s jurisdiction. The committee under the chairmanship of Sir William Malkin [UK], held 19 meetings, which were attended by jurist from 11 countries. In its report, which was published on Feb 10, 1994, it recommended that the statute of any new International court should be based on that of the Permanent Court of International Justice;
- That Advisory jurisdiction should be retained in the case of the new court
- That acceptance of the jurisdiction of the new court should not be compulsory
- That the court should have no jurisdiction to deal with essentially political matters.
All members of the UN are parties to the statue of the ICJ, and nonmembers may also become parties [1].
Now the question may arise that if the court has no compulsory jurisdiction then what about the enforceability of judgment, well it is to be noted that the court itself has no power of enforcement, but according to article 94 of the charter of the UN “If any party to a case fails to perform the obligation incumbent upon it under a judgment rendered by the court, the other party may have recourse to the Security Council, which may, if it deems necessary, make a recommendation or decide upon measures to be taken to give effect to the judgment.”[2]
Landmark Case
There is a recent landmark case of India, Jadhav Case [India v Pakistan]where India voluntarily practiced its jurisdiction in the International Court of Justice, The Hague, Netherlands. The brief about the case is, Indian Navy Officer named Mr. Kulbhushan Jadhav was captured by Pakistani intelligence in Pakistan. It was claimed by Pakistan that he was spying in their country and was also an undercover officer of RAW [Indian Intelligence]. He was booked and was declared as a terrorist and was sentenced with the death penalty by the Pakistan army court. On the other hand India denied the claims and raised international issue stating that Pakistan violated the protocols of Vienna convention by denying Indian officials meet with Jadhav, denied legal representation to him etc. later on the matter was heard by ICJ where India proved that ICJ holds jurisdiction in the particular case whereas Pakistan was trying to deny that ICJ has no jurisdiction over the case. With future settings in 2019 ICJ ordered that Pakistan violated the convention protocols and quashed the death penalty laid over Jadhav.
Conclusion
International Court of Justice [ICJ] is a court established by the League of Nations under the UN charter which was formed to have an international judicial body which could give non-partial decisions over the disputes between nation[s] and with an advisory jurisdiction as and when asked for. It holds a long history in itself, hard work of many jurists from different countries behind its policies and statues. When we talk about its jurisdiction, it has no compulsory jurisdiction i.e. with the common consent between the parties in dispute; the case can be taken to ICJ, with this non compulsion part there is also a restriction over its jurisdiction when it comes to political matter i.e. a political dispute between nations cannot be dealt or solved with the help of ICJ not even with its advisory jurisdiction too. If the parties don’t follow or enforce the decision given by ICJ, enforceability can be brought through art. 94 of UN charter through Security Council.
[1] https://dictionary.cambridge.org/dictionary/english/jurisdiction
[2]https://www.icj-cij.org/en/history
[3]https://www.un.org/en/sections/un-charter/chapter-xiv/index.html
This Article Written by Rishi Choudhary, Student of MIT-WPU, Pune.
Also Read – Essay On International Court of Justice (ICJ)
