Role of the ICJ in Developing and Evolving International Law

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Entry for “Bi-Annual Essay Competition” (June 2015) organised by The R P Anand Virtual Centre of International Law

Author’s Introduction

  1. Name- Avneesh Kumar.
  2. Title of the Essay- “Role of the ICJ in Developing and Evolving International Law”
  3. Age- 24 years (DoB 16 July, 1990)
  4. Course- LLM
  5. Year of Study- 2nd year.
  6. University- South Asian University, New Delhi.
  7. Address- Avneesh Kumar, s/o Sri Kale Singh, Dak Bangla Colony, Near BSA Office, Near Railway Station, Amroha, Distt: J P Nagar, Uttar Pradesh, India - 244221.
  8. E-mail- avneesh.dhariwal@gmail.com
  9. Mob- (0) 9818034330 (personal) / (0) 9319396563.

 

Declaration of Originality of Essay

I, Avneesh Kumar, hereby declare that this essay is my original work, which is free from any type of plagiarism. The essay has neither not been published anywhere else nor submitted for consideration at any other place. If any fact has been taken in the essay from any other work it has been duly acknowledged in the form of footnotes.

With this I request you to consider my entry for the Essay Competition.

Thanking You.

                                                                                                                        Yours Sincerely                                                                                                                                              

                                                                                                                         Avneesh Kumar,                

                                                                                                                        2nd Year, LLM,

                                                                                          South Asian University, New Delhi

Role of the ICJ in Developing and Evolving International Law

Abstract

In the past the International Court of Justice (ICJ) has given rise to new norms of international law, while dealing with particular disputes. The UN Charter or the ICJ Statute does not give any law making powers to the ICJ, therefore scholars have questioned the legitimacy of the authority of the ICJ to develop and evolve new norms of international law. The ICJ has implied power to create norms when there are no pre-existing norms to guide it in a particular dispute. By creating such norms the ICJ necessarily fills the gaps in international law, and contributes towards its progressive development. The power of the ICJ to create new norms is necessarily an exceptional power which is limited in scope as well in circumstances. If the ICJ acts in an unfair or arbitrary manner or otherwise does not take into account the interests of parties while developing new norms, then states have always the power to render such new norms ineffective by developing a new custom or resorting to a treaty. In the past States have not used their law making powers to invalidate the norms created by the ICJ, rather states have substantially followed the new norms created by the ICJ. Many new norms which emerge in the pronouncements of the ICJ gain the status of customary law or they are incorporated in the treaty law, even when the exact legal status of such norms is uncertain, they still play a part in the development of international law and shaping of state practice.

 

Note: In the entire essay the Harvard Blue Book citation style (19th edition) has been strictly followed.

Chapter 1

Introduction

In national jurisdictions the role of courts and their powers are defined either by the existence of a constitution (like India, United States) or by well established practices (like United Kingdom). The primary role of judiciary in every jurisdiction is to apply the laws created by legislature, but in many countries the courts have been provided with limited power to create norms either by way of progressive interpretation or by laying down some new rules in those fields where legislature has not enacted any law[1].

Drawing analogy in international law, the International Court of Justice (ICJ) is a principal organ of the United Nations, which performs the functions of a judicial body at international plane. With the exception of treaties, international law suffers from ambiguousness and lack of clarity, and it is more so in the case of the role of the ICJ. In the past it has been seen that many times new rules have emerged from the pronouncements of the ICJ[2] or existing rules have been moulded or given new interpretation by it. It has also been observed that once the ICJ has given rise to a new rule in international law, it has been accepted by the international community as an authoritative norm. Indeed a rich body of international law has been developed in several areas by the pronouncements of the ICJ or its predecessor the PCIJ, but this norm making role of the ICJ has not been given due attention[3]. Although, there have been instances when states (mostly the United States) have not honoured the pronouncements of the ICJ[4], but still its pronouncements have commanded a substantial degree of respect in most of the cases[5].

It was observed by renowned jurist Oppenheim[6]:

“Judicial decision has become a most important factor in the development of international law, and the authority and persuasive power of judicial decisions may sometimes give them greater significance than they enjoy formally. It is probable that in view of the difficulties surrounding the codification of international law, international tribunals will in the future fulfil, inconspicuously but efficiently, a large part of the task of developing international law”.

The ICJ seems to have played some role in the developments of at least some areas of international law. It is true that the pronouncements of the ICJ do not have a precedential value[7], but practically they have been followed in subsequent cases (with some exceptions), although their exact legal status has been uncertain. Many of the decisions of the ICJ have been given the shape of a treaty by states or some of the decisions have later gained the status of customary international law.

Unfortunately, the exact role of the ICJ in developing and evolving international law has still not been demarcated precisely. Under this essay I would focus on the following three questions:

  1. Is the role of the ICJ is merely to apply the international law and interpret it in case of ambiguity or is there some scope, even if limited by which they can create or evolve new rules of international law?
  2. Are the new norms created by the ICJ part and parcel of international law per se, or they can be considered so when they become part of international customary law?
  3. What is the exact scope of this norm creating power of the ICJ? What are the limitations which work as a check on the ICJ while it is evolving a new norm?

I have dealt with different facets of these questions, and tried to answer them in a very concrete and precise manner in the subsequent Chapters.

Note: As the the ICJ is successor to the PCIJ and their statutes are also similar, therefore relevant pronouncements of the PCIJ have also been discussed.

 

Chapter 2

How the ICJ Develops or Evolves the Law

Under the UN Charter or Statute of the ICJ, there is no provision which makes the ICJ decisions binding, except on the parties. Under art. 38 of Statute of the ICJ, clause 1(d) recognises the decisions of the ICJ as subsidiary means for the determination of rules of law”:

Art. 38 (1): The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply-

(d): subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Further the applicability of the ICJ decision is limited by art. 59 of the ICJ Statute as between the parties, which provides:

“The decision of the Court has no binding force except between the parties and in respect of that particular case.”

These two provisions make it clear that firstly, the ICJ has no general power to create law in the form of precedent as available to courts in several national jurisdictions; secondly, the decisions of the ICJ are not a direct source of international law but there are just subsidiary means to determine rules of law.

But does it mean that that the ICJ has no power at all to develop or evolve new norms of international law? Such an interpretation would frustrate the progressive development of international law, and while resolving the disputes the ICJ necessarily creates or evolves new norms[8] when there are no pre existing rules to apply.

In spite of no independent power of law making, the ICJ can develop or evolve new rules or norms of international law in the following ways:

  • Recognising the Newly Emerged Custom: While referring to customary law, the ICJ might take into account a new custom which has come into force or which has outlawed an old custom. This new custom might not have been previously recognised by international community, but if it has been followed uniformly, consistently as opinio juris[9], the ICJ can recognise it. Sometimes it might recognise an instant custom where the subject matter justifies the same (like cyber warfare) and state practice is overwhelmingly uniform and consistent even if for a short duration of time. In such cases the ICJ does not itself create a rule, but it is the first one to recognise a rule which has already been created; the pronouncements of the ICJ further fortify the existence of such a rule. But, question remains that what if the ICJ is actually creating a new norm to deal with a particular dispute, but identifying it as a newly emerged custom? The point is that many times the ICJ might actually create a new rule, and tag it as a newly emerged custom to save it from the accusation of judicial law making.
  • Giving Rise to New Rule by Progressive Interpretation: The ICJ by way of interpretation of treaty provision or existing norm, develop a rule which was hitherto unknown to the international community. Such a new rule is generally one which is required for the successful implementation of treaty, and it is inferred by the ICJ from the intention of the treaty makers. It has been argued by Jorge E. Vinuales, Executive Director of Latin American Society of International Law, that the ICJ has developed several very important rules in the field of international environmental law by way of interpretation[10]
  • Reference to General Principles of Law: It has been argued by Judge Lauterpacht that law is created not just by agreement, customs or legislature, but it is also created by judges by way of interpreting the existing law and applying general principles of law[11]. Sometimes the ICJ may decide its dispute by referring to General principles of law existing in domestic legal systems, when there is no treaty or customary law to rely on. It is possible that due to the pronouncement of the ICJ, states may adopt the rule and subsequently it may emerge as customary law. Here the ICJ indirectly contributes towards the task of international law making.
  • Making an Entirely New Rule: It has been observed by renowned jurist James Leslie Brierly that the role of a judge is not the mere application of law, but also formation of a rule to apply because complete segregation of legislative and judicial functions can only exist in imagination, not in reality[12]. When there is no source available to rely on to decide a particular dispute (no custom, no treaty, no general principle of law), then the ICJ might create a new rule[13] (although it may not expressly state that it is recognising a new rule) which might be based on equity[14], justice, and other relevant factors to reach at a fair solution in a particular dispute. The status of such norms is uncertain unless it is developed into a custom. Perhaps the ICJ recognition of “United Nation’s international legal personality to bring a claim on behalf of its injured personal” was one such example, but it is controversial.

The norm making power of the ICJ is not extra legal but it is implied in its functions. When the there is no concrete rule to apply in a particular dispute, the ICJ might be required to create a new rule to save international legal process being thwarted. Although, the pronouncements of the ICJ don’t create precedents, but as a matter of practice the previous decisions are generally followed and referred to as sources of law.

Indeed it has been observed by PCIJ in the Case of Readaptation of the Mavrommatis Jerusalem Concession[15] with regard to role of previous pronouncements:

“The Court sees no reason to depart from a construction which clearly flows from the previous judgments the reasoning of which it still regards as sound, more especially seeing that the two Parties have shown a disposition to accept the point of view adopted by the Court”.

The normative value of pronouncements of the ICJ is not limited to their particular cases, rather they have some general character[16] in building the wide body of international law. The pronouncements of the ICJ undoubtedly affect the behaviour of the states in the long run, and once sufficient number of states follows its pronouncements, it gains the status of customary law. Therefore, the ICJ performs a limited function of developing and evolving law, when legal rules are uncertain or absent to deal with a particular dispute.

 

Chapter 3

Analysis of Practice of the ICJ to Develop International Law

As discussed in the previous heading the ICJ has some power of developing and evolving legal norms, these legal norms may be either modified form of some previous norms or they may be entirely new norms. In several areas of international law the PCIJ and then the ICJ have developed a rich body of international law like state responsibility, use of force, diplomatic protection, etc. The contribution of the ICJ has been dependent on the number of cases which have been brought before it (including advisory opinions), and there are variations in contribution of the ICJ in different fields of International law.

Some of the pronouncement of the ICJ have become customary law by consistent practice, and even some of them have been specially given the shape of treaty; there are still other norms evolved by the ICJ which have not been transformed into customary or treaty law, and which are still influential in changing the practices and behaviour of states.

These are some of the pronouncements where the ICJ has developed or evolved a new rule of international law:

  • Reparation of Injuries case[17]: The ICJ opined in this case that the United Nations had the international personality to bring a claim against a state on behalf of its personnel, who had been injured by that state, as it was violation of an obligation which was due to the United Nations[18]. There was no express provision in the Charter allowing the United Nations to bring such claims, neither there was any customary rule which could confer on the United Nations such power, it was essentially a new rule developed by the ICJ. The ICJ opined that Charter intended to confer on the United Nations, the legal personality to possess rights and duties, and “right to bring a claim on behalf of its personnel” was one such conferred right[19]. Therefore, by way of progressive interpretation the ICJ developed an entirely new rule. This new rule had been welcomed by international community, and today it is regarded a well established rule of international law.
  • Fisheries Case[20]: In this case it was held by the court that if there were special circumstances (like rugged coastline) it would be proper to apply the method of straight base-line for delimiting the territorial sea rather than following the low water mark. Before this case, the customary rule was that a state has to follow low water mark to delimit territorial sea, but by this case the court evolved a new rule or an exception to this low water mark rule, when there are special circumstances. In theory the court only recognised a special custom, but this was the first time that such a special custom was recognised. In practical terms it was a newly evolved rule or at least a newly recognised custom. The international community recognised this newly evolved rule in art 7 of the 1982 Law of Sea Convention, which is enough evidence of international community’s acceptance of the ICJ’s pronouncement as a part of international law.
  • Chorzow Factory Case[21]: In this case Permanent Court of International Justice recognised that it was a principle of international law that breach of an engagement involves an obligation to make reparation in adequate form[22]. Before this case this principle was a principle of domestic law, and it was first time that it was recognised as a principle of international law. It seems that today this principle has gained the status of customary law as the substance of this principle is also contained under article 1 and article 2 of ILC Draft Articles on State Responsibility[23].

These three pronouncements are among the most important pronouncements of the court, known for their norm creating character. Many other cases have also developed and evolved new rules of international law like effective control rule in Nicaragua case[24], recognition of erga omnes obligations in Barcelona case[25], etc.

 

Chapter 4

Justification for the Law making by the ICJ

No system of law can be regard comprehensive enough to contain all the rules to deal with all the problems which may arise in future. Even the Indian Constitution, which is regarded as the largest Constitution of the World has also gone through around 100 amendments[26]. In International law this problem is even more severe as there is no central authority to create law. Law is either created by conclusion of a treaty or it is developed through consistent and uniform practice.  

The conclusion of a treaty is a cumbersome and time consuming task. Many times the powerful states might not be interested in conclusion of a treaty because it might reduce their powers. There are very few treaties which have an almost universal ratification. Even if the states agree to create a treaty, it would go through the stages of negotiation, discussion, signing, ratifying, and creation of implementing statutes (in dualist countries), which might take a long time. It took nine years (1973-1982) for states to adopt the UN Convention on the Law of the Sea, and another fourteen years for it to come into force (1994)[27].

Similarly, it takes a long time for the development of a custom. For establishing a customary rule a custom must have been followed uniformly and consistently[28], and moreover it must have been followed as opinio juris (as a legal norm)[29].

Even it has been observed by late Prof R P Anand, who is perhaps the most influential jurist from the developed world, that the compulsory jurisdiction of the court was a means to curb the unfettered freedom of states to conclude agreements and refer a dispute to tribunals[30].

Today, when the interaction of nations has increased manifold, there might be disputes among countries over many issues. Once the ICJ faces a dispute, there might not be any ready-made rules to apply. The pre-existing rules in international law might not provide a definite answer to the dispute before the ICJ[31]. When there is no existing rule in a system to rely on then necessarily the court would create a norm (although most of the time court does not say that it is creating a new rule)[32], and the same is true about the ICJ. If we assume that the ICJ has no norm creating power in such situations, then the ICJ would be impotent to deal with them. Such disputes can perhaps never be solved because; firstly to deal with those situations the states would be required to create new law (most probably a new treaty), which might take years, and secondly, even if states create a new law, it would have to be applied retroactively to deal the previous situation. Some scholars might question such retroactive application of such a law.

It has been argued by late Prof. R P Anand that the ICJ must not give up a case because there is no clear rule of international law dealing with it[33]. It has been observed by late Prof. Anand, I quote[34]:

“Under the normal rule of law it is inconceivable that a court should pronounce a non-liquet because of the absence of law. This is certainly not so because the positive law has provided a solution for all possible emergencies. The reason for this is that law conceived as a means of ordering human life, unlike theoretical sciences, including the science of law itself, cannot, without abdicating its function, concede that there are situations admitting of no answer. There must be a final solution to each problem with which courts are confronted, and in no case may the judge refuse to give judgment on account of a supposed gap in the law. The practice of states recognizes that international law both may and must avail itself of subsidiary sources for the purpose of settling disputes between states.”

It has been observed by Judge Lauterpacht that in the last 150 years of adjudication most of the times the international tribunals were confronted with new situations for which ready-made solutions were not available but not even in a single case on record any tribunal refused to deal with it on the ground of absence of any applicable law[35].

Subsequent law making can create norms for the future conduct, but they may not provide proper remedy for previous conflicts. The best remedy in such situations is to give the ICJ flexibility to develop or evolve new norms keeping in mind the existing body of laws, principles of equity and justice, and other prevailing circumstances at a particular time. Such a power of the ICJ is inevitable for speedy disposal of international disputes and also to some extent for smooth development of international law. The purpose of giving norm making power to the ICJ in such situations is not to subvert the (primary) authority of states to create law but rather it is to supplement the authority of states by filling the left out lacunae.

 

Chapter 5

Limitations on the Norm Creating Powers of the ICJ

Some commentators have opined that judicial law making may lead to anarchy at international level; they point out that there are no checks and balances on the power of the ICJ while giving rise to new norms, and it might lead to constraints on sovereignty[36]. But, this argument is invalid because the ICJ is not entirely independent in its interpretation of international law, but its powers to interpret are necessarily “constrained by the preferences of states and other actors”[37].

When debate was going on over the powers of the PCIJ, there were apprehensions about the powers of the courts. The representatives from Japan and Britain opposed the provision for compulsory jurisdiction[38]. The argument provided from the side of Britain was that it was not against the extension of the powers of the court, but rather because it believed that development of such powers (compulsory jurisdiction) must be gradual.[39] The result was that the recommendation of compulsory jurisdiction by the “Committee of Jurists” was not fully accepted, but rather a compromise was reached by which states could accept the compulsory jurisdiction of the court in respect of four specific categories (art 36 of PCIJ statute)[40]. This development was much regretted by small and/or developing countries like Brazil, Columbia, Portugal, and they believed that without compulsory jurisdiction the PCIJ would not be able to contribute much to the settlement of international disputes[41].

When negotiations were going on over the powers of the Security Council, most of the smaller states were against its wide powers[42], but with respect to the ICJ the smaller states wanted wide powers for ICJ. The reason for this was clear; the Security Council was a political organ, but PCIJ/ICJ was/is an independent legal institution. It shows that the question of limitation was very much discussed at the time of formation of PCIJ, and it at all there was a problem, it was lack of power of PCIJ, not its excess. Even the foremost objection to the compulsory jurisdiction of the court was “alleged insufficiency and uncertainty of the rules of international law”[43], but this argument is not tenable because even in national legal systems there are always new situations which cannot be dealt with by the existing laws. Moreover, a rich body of international law has been developed in the last 50-60 years which has undoubtedly reduced the uncertainty of international law.

International law is largely based on the concept of pacta sunt servanda[44], which means that international law is created by the state consent. If a particular rule of international law (either customary or treaty based) has become obsolete, redundant or otherwise unsuitable for the states to follow then states can change those rules any time either by concluding a treaty or unanimously changing their respective practices. The ICJ while evolving a new rule either by way of interpretation or by referring to General principles of law (when there is no custom or treaty to refer to) would not be interested in evolving such a rule which is arbitrary or despotic or which was never intended to be part of international law by international community because of the simple reason that countries can make the pronouncement of the court ineffective by establishing a new rule. The ICJ would definitely refrain from giving pronouncements which run the high risk of getting overruled by the states because it would affect its credibility as an international institution. States can definitely discipline the ICJ if it behaves arbitrarily or goes out of the scope of its powers[45].

Indeed, by looking at the practice of the ICJ till now, its pronouncements have commanded respect from the international community, and even those countries which initially opposed a pronouncement of the ICJ have also accepted it ultimately[46] in some cases. The rules developed or evolved by the ICJ have not been generally overruled[47], on the other hand such rules are subsequently regarded as customary international law or they have been adopted under a treaty framework[48]. Therefore, the first limitation on the power of the ICJ is the ultimate authority of states to make a pronouncement of the ICJ ineffective, and past practice shows that it has works as a proper check on the powers of the ICJ.

There are several other limitations on the norm creating powers of the ICJ, those are as follows:

  • Intention of the Parties: While the ICJ interprets the provisions of a treaty or other international agreements, it is not free to interpret them in any manner. The court would interpret such provisions keeping in mind the intention of the parties who have enacted such an instrument. The ICJ must refer to the preamble of an instrument, its purposes and principles, and other provisions to gather the intention of the parties. The ICJ must interpret the provisions of a treaty in such a manner that it would help the successful implementation of the treaty, and remove hindrances in the realisation of its objectives.
  • Creating Norms within Limited Scope: it has been argued by Manley O Hudson that law creating function of a court is not a matter of choosing a gadget which can fit into particular places but it must create a rule for giving concrete application which must be suitable for fulfilling the task of law finding[49].  The Scope of the law making powers of the ICJ is necessarily limited by the requirements of the situation. When the treaty rules are clear or when an established customary rule exists, the ICJ will just apply the international law as it is. It can develop or evolve new norms of international law only when due to ambiguity or absence of legal norms, there is need of some immediate progressive rule of international law to deal with a dispute. It is not a general power available at all times or in all conditions, but its scope is limited by prevailing conditions and exigencies of the situation.
  • Conformity with Wider Body of International Law: The norm creating powers of the ICJ are there to fill the lacunae in the existing international law and not to mould or subvert the existing international law. The ICJ has no power to change the rules of international law; such a power is reserved for the states. The ICJ while deciding a dispute or providing advisory opinion cannot create a new rule which conflicts with the existing customary or treaty law. The norm creating powers of the ICJ are circumscribed by the existing rules of International law.
  • Norm Creating Power by the UN Charter: The ICJ is a creation of the UN Charter, therefore all its powers, including the implied law making powers are limited by provisions of the UN Charter. The ICJ cannot create a norm which is against any provision of its constituting instruments i.e. the UN Charter and the ICJ Statute. Moreover, the new norms created by the ICJ must be consistent with principles and purposes of the UN Charter.
  • Consent of the Parties: Under art. 36 of the ICC Statute the ICJ can decide only those disputes which are submitted to it; the ICJ cannot decide a dispute without the consent of parties. While developing or evolving new norms, the ICJ has to work in fair and non-arbitrary manner, which is consistent with the interests of the parties[50] otherwise the parties would not submit their future disputes to the ICJ.

It seems that there are enough checks and balances on the power of the ICJ to create new norms, which would always restrain the ICJ from working in a despotic manner or going out of the scope of its powers while evolving new norms or providing new interpretation to the existing norms.

 

 

Chapter 6

Conclusion

By the following discussions, it is clear that the ICJ does not merely apply, interpret and identify the law, but it also creates and evolves international law. Through its pronouncements, the ICJ has created a rich body of international law in several fields. Even when the pronouncements of the ICJ have not been adhered to by the parties, their normative value has not been doubted or disregarded by International community. For ex, although USA did not follow the ICJ judgment in Nicaragua case, but the pronouncement is extensively referred in the area of use of force; even the “effective control” rule evolved in this case is also considered as part and parcel of international law.

The exact status of the ICJ’s decisions might be uncertain, but they are necessarily regarded as means to determine international law. In most of the cases the decisions of the ICJ affect the conduct of states at large, and develop themselves into customary law. Even when they don’t take the shape of customary law, they have some normative value although they might not be equated with a direct source of international law. By disregarding the legal status of the norms developed or evolved by the ICJ, we would be hindering the progressive development of international law. Under the ICJ statute the pronouncements of the ICJ are binding only on the parties, but it must not undermine the implicit power of the ICJ to create or evolve new rules of international law. As the power of the United Nations to bring claims on behalf of its personnel is implicit in its functions and responsibilities[51], the ICJ also has a limited power to evolve and develop international law even by introduction of new rules.

It is inevitable for the ICJ to develop and evolve new rules, when there are no pre-existing rules to apply in particular disputes, otherwise many disputes might never get resolved fairly. While creating law, the ICJ does not work as a competitor to the states, but rather it tries to supplement them in the task of law making. The fear of judicial anarchy by the ICJ while creating a norm is misplaced and superfluous, because the scope and circumstances of such norm creating power are very limited. The ICJ will have an opportunity to create or evolve a new norm only when a case has been submitted to it with the consent of parties or when an advisory opinion has been asked from it by eligible institutions. The ICJ can exercise such a power only when there are no rules in international law to deal with a particular situation or when there are conflicting rules. Moreover, the ICJ would not be developing such norms which are not consistent with the wider body of international law because states always have the ultimate power (by adopting a treaty or a unanimous custom) to disregard a norm created by the ICJ.

Lastly, I want to say that the implied law making power of the ICJ is not just necessary, but it is inevitable to deal with the legal lacunae left out by the states. When there are no clear rules to deal with a particular dispute, the ICJ by evolving new rules makes an important contribution in the development and evolution of international law. It is high time that international community must expressly recognise the role of the ICJ in the development and evolution of international law, and accept its implied law making powers as part and parcel of international law.

 

[1] As Indian Supreme Court created some rules to prevent sexual harassment in Vishaka and others v. State of Rajasthan and others. (AIR 1997 SC 3011) as there was no legislation to deal with it.

[2] In this regard it has been argued by Tom Ginsburg, Professor of International Law, University of Chicago Law School, that while resolving disputes, judges at international level make law, like judges at national level, see Tom Ginsburg, International Judicial Lawmaking, BERKELEY LAW: UNIVERSITY OF CALIFORNIA (2005) http://www.law.berkeley.edu/files/spring05_Ginsburg.pdf

[3] Niels Petersen, Lawmaking by the International Court of Justice—Factors of Success, 12 G.L.J. 1295 (2011). 

http://www.germanlawjournal.com/pdfs/Vol12-No5/PDF_Vol_12_No_05_1295-1316_Beyond%20Disptue%20Special_Petersen%20FINAL.pdf

[4] The USA did not comply with the ICJ decision in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. The United States of America), 1986 I.C.J. Rep. 14; Vienna Convention on Consular Relations Case (Paraguay v. USA) (1998ICJ Rep. 258; and LaGrand Case (Germany v. USA) (2001) ICJ Rep. 466.

[5] In one study it was found out that from the inception of the ICJ to 2003, around 68% of the ICJ judgments have been complied with. See Tom Ginsburg & Richard H. McAdams, Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution, 45 Wm. & Mary L. Rev. 1229, 1315 (2004). http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1329&context=wmlr

[6] R Y Jennings and A Watts (eds), ‘Oppenheim’s International Law: Vol 1 Peace’ (9th edn 1992) 41.

[7] Article 59 of the ICJ Statute.

[8] Tom Ginsburg, Bounded Discretion in International Judicial Lawmaking, 45 Va. J. Int'l L. 631, 632 (2004).

http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2436&context=journal_articles

[9] Followed as a matter of law.

[10] Dr. Jorge E. Vinuales, The Contribution of International Court of Justice to the Development of International Environmental Law, 32 Fordham Int’l L J 232 (2008)

[11] H. Lauterpacht, The Absence of an International Legislature and the Compulsory Jurisdiction of International Tribunals, 11 BYIL 143 (1930) cited by R P ANAND, ‘COMPULSORY JURISDICTION OF INTERNATIONAL COURT’ (1958) 75-76

[12] BRIERLY, THE JUDICIAL SETTLEMENT OF INTERNATIONAL DISPUTES: THE BASIS OF OBLIGATION IN INTERNATIONAL LAW (1958) CITED BY R P ANAND, ‘COMPULSORY JURISDICTION OF INTERNATIONAL COURT’ (1958) 76

[13] In this regard it has been opined by Alina Kaczorowska, Professor of European Law, The University of the West Indies, I quote:

“if an international tribunal is unable to discover an existing treaty or customary rule relevant to a dispute, any rule which the tribunal adopts in deciding the case will, in theory at least, form a new rule of international law. The question is whether the new rule is a rule of customary law or whether the tribunal’s decision may itself, be regarded as a source of international law”.

See ALINA KACZOROWSKA, PUBLIC INTERNATIONAL LAW 24 (2002).

[14] Although, equity might be considered as part of General Principles of Law, but even apart from that also it is resorted to by international tribunals, see ALINA KACZOROWSKA, Ibid at 28. Also see Justice Margaret White, Equity- A General Principle of Law Recognised by Civilised Nations? 4 Queensland U. Tech. L. & Just. J. 103 (2004) http://heinonline.org/HOL/Page?handle=hein.journals/qutlj4&div=10&g_sent=1&collection=journals#106

[16] IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW  20 (6th ed. 2003).

[17] Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=41&case=4&code=isun&p3=4

[18] Ibid

[19] Ibid

[20] Fisheries (United Kingdom v. Norway), Judgment of 18 December 1951

http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=a6&case=5&code=ukn&p3=4

[22] Ibid.

[23] ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts:

Article 1- Responsibility of a State for its internationally wrongful acts: Every internationally wrongful act of a State entails the international responsibility of that State.

Article 2- Elements of an internationally wrongful act of a State: There is an internationally wrongful act of a State when conduct consisting of an action or omission:  

a)       Is attributable to the State under international law; and

b)       Constitutes a breach of an international obligation of the State.

[24] See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. The United States of America), 1986 I.C.J. Rep. 14.

[25] See Case concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase) (1970) I.C.J. Rep. 3

[26] National Portal of India, Amendments, GOVT. OF INDIA http://india.gov.in/my-government/constitution-india/amendments?page=6 (last updated May 21, 2014)

[27] European External Action Service, United Nations Convention on the Law of the Sea, TREATIES OFFICE DATABASE, http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?redirect=true&treatyId=511 (Last updated Nov. 13, 2009)

[28] Asylum Case (Columbia v. Peru) Judgment of 20 November, 1950, ICJ http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=f8&case=7&code=cp&p3=4 .

[29] For example in S S Lotus case in spite of extensive practice of a custom, it was still not accepted as a custom, because it was not followed as a legal obligation. S.S. "Lotus", France v Turkey, Judgment, (1927) PCIJ Series A no 10, ICGJ 248 (PCIJ 1927)

[30] R P ANAND, ‘COMPULSORY JURISDICTION OF INTERNATIONAL COURT’ (1958) 30

[31] Tom Ginsburg, International Judicial Lawmaking, BERKELEY LAW: UNIVERSITY OF CALIFORNIA (2005) http://www.law.berkeley.edu/files/spring05_Ginsburg.pdf

[32] In this regard it is observed by Martin Shapiro, Professor of Law, University of California at Berkeley School of Law:

“This paradox means that although every court makes law in a few of its cases, judges must always deny that they make law. ... Such is the nature of courts. They must always deny their authority to make law, even when they are making law”. 

See Martin Shapiro, Judges As Liars, 17 Harv. J.L. & Pub. Pol'y 155, 156 (1994). http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1265&context=facpubs

[33] R P ANAND, ‘COMPULSORY JURISDICTION OF INTERNATIONAL COURT’ (1958) 59.

[34] R P ANAND, ‘COMPULSORY JURISDICTION OF INTERNATIONAL COURT’ (1958) 59

[35] Lauterpacht, The Doctrine of Non-justiciable Disputes in International Law", 8 ECONOMICS 277 (1928), cited by R P ANAND, ‘COMPULSORY JURISDICTION OF INTERNATIONAL COURT’ (1958) 60

[36] Eric Posner & John C. Yoo, Judicial Independence in International Tribunals, 93 Cal. L. Rev. 1, 4 (2005).  http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2758&context=journal_articles

[37] Tom Ginsburg, Bounded Discretion in International Judicial Lawmaking, 45 Va. J. Int'l L. 631, 633 (2004).

http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2436&context=journal_articles

[38] See generally, R P ANAND, ‘COMPULSORY JURISDICTION OF INTERNATIONAL COURT’ (1958) 33-35

[39] League of Nations,.'Records of the First Assembly, Plenary Meetings, 488 cited by R P ANAND, ‘COMPULSORY JURISDICTION OF INTERNATIONAL COURT’ (1958) 33-35

[40] R P ANAND, ‘COMPULSORY JURISDICTION OF INTERNATIONAL COURT’ (1958) 36

[41] R P ANAND, ‘COMPULSORY JURISDICTION OF INTERNATIONAL COURT’ (1958) 36

[42] BRUNO SIMMA (ED.), THE CHARTER OF THE UN A COMMENTARY (Vol 1, 2nd ed 2002) 443-444

[43] R P ANAND, ‘COMPULSORY JURISDICTION OF INTERNATIONAL COURT’ (1958) 57

[44] Agreements or promises must be kept.

[45] Tom Ginsburg, Bounded Discretion in International Judicial Lawmaking, 45 Va. J. Int'l L. 631, 634 (2004).

http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2436&context=journal_articles.

[46] For example in Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment of 9 April 1949, the ICJ Ordered Albania to pay compensation to Great Britain, which Albania refused to comply. But, after a gap of 42 years, in 1992, it finally paid the compensation (by reaching an agreement with the Great Britain). See SHABTAI ROSENNE, INTERVENTION IN THE INTERNATIONAL COURT OF JUSTICE 173 (1993)

[47] PCIJ, in S S Lotus Case (France v. Turkey), September 7th , 1927, held that the practice of trial by flag state was not a customary practice, but subsequently the rule of trial by flag state was incorporated under art. 11 of the 1958 Convention on the High Seas. 

[48] The rule of Straight Base line, which was evolved (or say recognised) by the ICJ in Fisheries case (United Kingdom v. Norway), Judgment of 18 December, 1951, was subsequently incorporated in art. 7 of United Nations Convention on the Law of the Sea.

[49] MANLEY O HUDSON, INTERNATIONAL TRIBUNALS: PAST AND FUTURE (1944) 247, 248   

[50] Eric Posner & John C. Yoo, Judicial Independence in International Tribunals, 93 Cal. L. Rev. 1, 36 (2005).  http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2758&context=journal_articles

[51] See Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=41&case=4&code=isun&p3=4

Author name-result: 
Avneesh Kumar

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