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-
  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 questionedthe 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 anauthoritative 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], butstill its pronouncements have commanded a substantial degree of respect in most of the cases[5].

It was observed by renowned juristOppenheim[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 willin 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 beenfollowed 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 ofinternational 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 theICJ 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) recognisesthe 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 ofthe ICJ Statuteas 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 Brierlythat 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 relyon 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 itis 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 referredto 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 statesin 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 ofthe 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.