The International Court of Justice has played an important role in the past in ascertaining existing customary law and in formulating adequate rules of International law

The International Court of Justice has played an important role in the past in ascertaining existing customary law and in formulating adequate rules of International law.” Discuss


Just as there are courts, judges, attorneys and a constitution in any sovereign state to maintain and uphold the rule of law in the nation, there is a similar body with similar responsibilities in the global context. Its main focus is to protect and promote peace and bilateral relationship among nation, and finding remedies for any grievances. The body responsible for such action is known as International Court of Justice. It was formed under the conventions of United Nations[1], to determine and establish existing customary law and settle every dispute among nations. In conjuncture of the international law already in place, the nations also depend on various international agreements and treaties that guides or at least, was created to guide their relation and activities towards each other. In many instances when these treaties or bilateral agreements could not facilitate their relations, or created mass confusion through the terms of the treaties, the nations came to the ICJ with their complaints, or to seek proper interpretation of the terms in the treaties that created confusion.


The main objective of International Law is to provide daily business of international relations and politics more support and smoothness. Typically it does so by evenly distributing decision making power amongst the international entities, and hence providing an alternative to unsupervised competition.

The international law has been arranged and its procedures have been designed in such a way as to avert different nations or private bodies to get into trouble or chaos with one another. International law permits and promotes the presence and cooperation of multiple different sects and units. It provides a general outline for the international systems to coexist and operate efficiently. Moreover, international law endorses specific values—the directives which apply for the use of force by nations, the protection of the rights of individuals, and the administration of the masses.

The most important component of the international law operating system is the participating entities, which are responsible for creating the law and therefore are the subjects of its rules or guides. This is one of the most important fundamentals of the international law system, as the proper functioning of the law greatly depends on the self-regulating actions of the consisting components. The economical, political and social circumstances of any member units will determine the approach and manner of the implementation of the relevant law.


The most noticeable and dominant changes in the international law is brought about by gradual increase in the amount of and variety of the interested parties in the international legal process. This gradual expansion is a vital change, as the decision regarding who is allowed to have say in the process of making the law, and how much power each of the parties are entitled to both affects the process of implementing the law, its contents, and how it will be regulated. The complication involved in the process of making the law and implementing it both is increased by every addition of member units.

The ICJ: An introduction

The International Court of Justice is said to be the legal arm of the United Nations. ICJ is the central judicial tribunal of the United Nations, and all the nations which are member of the UN are also a member of the ICJ. ICJ is more familiarly known as the World Court. ICJ was established in 1946 by the United Nations (Statute of the International Court of Justice [ICJ Statute], June 26, 1945, 59 Stat. 1055.

The ICJ has jurisdiction over three types of cases[2]: (i) applications by “special agreement,” where the countries in dispute agree to present their case to the court; (ii) cases that are authorized by any treaty that mentions that any future disagreements arising from the treaties will be adjudicated by the ICJ; and (iii) cases where nations in dispute have affirmed themselves subjugated to the “compulsory jurisdiction” of the ICJ.

According to the official website of ICJ, the ICJ’s main function is to resolve legal disagreements between the member nations and to give “advisory opinions” on judicial questions, in compliance with international law, forwarded to it by specialized agencies and valid branches of UN.[3]Any country can be out of the authority of the ICJ, if the country so pleads. The consent of the nation to be under the ICJ’s jurisdiction has to be given through explicit agreement at the time of placing the dispute before the court. The grant to consent means that the country will accept the ICJ’s rule, even if it does not be in the country’s favor, and whether by the provisions of any outstanding treaties which is relevant to the dispute under negotiation.

The ICJ has legal power in two categories of cases: conflicting agendas between countries, where the court provides compulsory rulings between countries that had previously agreed or has agreed, to accept the decisions of the court; and advisory opinions, which endows states with \ reasonable, but non-mandatory opinions on various questions regarding International Law, usually provided with special request from the United Nations General Assembly.

The Impairments in ICJ, the Deficiency in its Jurisdiction, and the reasons for Failure:

Countries are not obliged to agree to the decision of the ICJ.

Under the Optional Clause, many states have previously agreed the decision given by the ICJ, but some countries have done it under several conditions given. Under the Connally Reservation[4], which was provoked by the United States, is one clause of the ICJ, which allows countries to avoid the jurisdiction of ICJ which a country previously agreed to comply with, under the Optional Clause. This Connally Reservation is an infamous self-judging reservation, which has decreased the power of the ICJ to a great extent.This reservation is mostly used when a country feels that the dispute under speculation is a domestic matter, and the domestic law should be applied to this particular matter.

For example, the case between Australia and France, when France performed the testing of its nuclear missiles in the South Pacific in the mid?1970s, Australia filed an application to the ICJ, complaining that the France is illegally performing the nuclear tests. In response to the case, France responded that nuclear testing was a matter of national security and that the ICJ had the jurisdiction to interfere in its nuclear testing program, therefore it did not accept any rulings. France spurned the ICJ case filed by New Zealand, Fiji and Australia.

Another example of such a case would be Breard (1998) case, where Paraguay brought allegations against USA that USA had failed to respect the rights of the Paraguayan national during his arrest, under the Vienna Convention. The ICJ tried to stop the U.S. from executing the Paraguayan national, but the U.S. refused to obey the ICJ’s order and executed the Paraguayan national.

There is no legal body or agency to enforce the rulings of ICJ.

There is no international executioner system in place to enforce the decisions given by ICJ. After the ICJ has made a verdict, there is no agency or a special “police” to force the concerned nations to conform to the decision of the court. The matter can be forwarded to the United Nations Security Council, but there is a chance that the decision can be overturned by the veto powers of the members of Security Council. For example, when the US diplomats and consular officials were taken hostages in Tehran in 1979, US filed an application against Iran in the ICJ, alleging the Iranian government deliberately gave orders to militants to seize the American embassy and take the embassy staff hostage. The ICJ ruled in favor of the U.S. but the ruling did not appear to have any influence on Iran, which refused to participate in proceedings. In this case there was no agency or body who could execute the decision of the ICJ. The most important fact is that the ICJ only has jurisdiction only under the free consent of the countries. The ICJ does not have any true mandatory and incumbent jurisdiction.

Only member nations can go to ICJ.

In 2011, Palestine sought out to apply for membership in the UN General Assembly, since it was considered as a state by more than 130 countries and was full member of the UNESCO by then. USA immediately announced openly that it would resist this move of Palestine by using its veto power in the Security Council, even though it was one of the biggest promoters of the two-state resolution between Israel and Palestine. At that point of time, if the statehood bid of Palestine got passed, its status in UN would be escalated from just an observer state to a non-member State observer. This escalation of status would automatically enable Palestine to go to the ICJ and bring official complaints against Israel for all the oppressions, the oppressions which are identified and deplored by the ICJ itself on many previous occasions.

Another example is an accusation brought by the Federal Republic of Yugoslavia against the all the states who were member of the North Atlantic Treaty Organization (NATO) regarding their activities in the Kosovo War. This case was rejected by the ICJ in 2004 due to the absence of jurisdiction, as because at the time when FRY made the official complaint to ICJ, it was not a party to the ICJ statute.

Only countries can approach the ICJ. No non-nation entity can go to ICJ for justice.

Any individual, organization or any firm cannot go the ICJ like they can do in their respective nation’s supreme courts. Only states can file any case in the ICJ, and also become a defendant if any country brings complaint against them. For example, many Chinese firms were alleged to design and manufacture duplicated products of many internationally recognized originals. The originals are usually manufactured by large corporations, after their relentless and much expensive efforts in research and development. The designs are all copy right protected, under the Intellectual Property Right[5]. In this case, the USA continuously alleged China for the breach of the Intellectual Property Rights, and urged international legal bodies to take actions against China. This is one of the many reasons of ongoing tensions between the two states. The victim company, Apple Inc. could not approach the ICJ for the remedy. Different corporations or firms, agencies, whether Government or not, NGOs, individuals, or even UN organs are deprived from directly participating in the facility provided by the ICJ, even if they are faced with disagreements.

The rulings of ICJ are subject to the advisory opinions of Security Council of the United Nations.

Whenever there has been any conflict, the balance of influence appears to be in the hands of Security Council. In practice, the powers of ICJ have been greatly reduced by the aversion of the losing country to comply with the decision of the court and also by the reluctance of the Security Council to impose the decision. If the judgment is against one of the permanent five members of the Security Council or its allies, any movement to enforce the decision would then be vetoed. For example, when Nicaragua was aggrieved by the USA’s action of mining in its coastal areas in the 1980s and US funding of Para-militants activities in Nicaragua, it went to the ICJ with a formal complaint against USA. Nicaragua estimated the cost of the damages to exceed 17 billion dollars When USA came to understand that the case was going against them, it claimed that the ICJ had no jurisdiction, which left the court powerless and it ruled itself out of the ICJ. When the issue was brought to the UN Security Council, US used its veto power in Security Council to avert any attempts made by ICJ to implement its decision.

Other international courts are available where individuals or nations can go for justice.

Besides the ICJ, which is a part of the UN, there are other international courts, which take complaint from nation or non-nation entities. The powers of these courts and their jurisdiction are beyond the context of this case but they have a similar role to play in the international community. One example of such a court is the International Criminal Court (ICC), which is administered by the Rome Statute. It is the first permanent, treaty based, international criminal court which was established to help end exemptions of the offenders of serious crimes of which are of high consideration to the international community.The ICC is an “independent international organization, and is not part of the United Nations system”. Another example is the Permanent Court of Arbitration, which is

Not an official part of the United Nations. Rather, it is an independent intergovernmental organization whose purpose is to administer arbitration, conciliation and fact finding in disputes”[6]

There are other international thematic courts which are not under the canopy of the International Court. These international thematic courts, for example ICC, are in function independently from United Nations, unlike the ICJ.These conflicting structures between the several international courts make it difficult for the courts to perform and engage in effective and collective jurisdiction.

Treaties supervenes the rulings of ICJ

According to the statutes of the ICJ, it must decide on every case in compliance with the International Law. As a result, ICJ must satisfy every international customs, every international conventions and treaties and International conventions, whether general or particular.

It is observed in many cases that the Court’s statutes have been supervened or subsumed by the international treaty laws. There are several limitations that are imposed on the ICJ’s jurisdiction by several multilateral treaty reservations in place. When international customary law contains rules or practices that are either identical or contrary to those of treaty law, the latter supersedes the other, so that the customary international law has no further existence of its own. A classic example of this event could be the The East Timor Case – Portugal v. Australia(ICJ 1995). Under the Vienna Convention on the Law of Treaties (1980), every country has to respect each other’s duties and powers in the respective legal boundaries. Portugal claimed that Australia has failed to oblige to the duties and powers of Portugal as the administering power of East Timor. However ICJ, made rulings in favor the prevailing treaties, with respect to the colonization laws at that time, and gave verdict that until no universally accepted solution was reached, the rule in East Timor will remain the way it was. In this case it is seen that ICJ fails to uphold the international laws in every other aspect, just because of its limitations regarding any existing treaties[7].


In today’s troubled World, every nation understands the importance of a powerful, responsible and unbiased regulator of international laws and regulations, to uphold peace and bilateral interests among nations. The equilibrium of power has always been in favor of the developed nations, and since the supervision of the international legal system has been the responsibility of the developed countries, it can easily be understood that the legal operation serves only the developed countries, and that the entity created to uphold the rule of law on the global context, the ICJ, has failed to play an important role in securing and safeguarding the law and order. It is seen in numerous cases how the international legal system has been the protector of one class of nations. The ICJ cannot be blamed all on its own. Blame has to be carried by all the nations who created all the statutes of ICJ. The weakness that prevails in the statutes of ICJ allows many nations to escape the jurisdiction.


· Rosalyn Higgins, Problems and Process: International Law and How We

Use It (Oxford, UK: Clarendon, 1994).

· Lelewer, Joanne K. 1989.”International Commercial Arbitration as a Model for Resolving Treaty Disputes.” New York University Journal of International Law and Policy 21.

· Levarda, Daniela. 1995. “A Comparative Study of U.S. and British Approaches to Discovery Conflicts: Achieving a Uniform System of Extraterritorial Discovery.” Fordham International Law Journal 18.

· E. Diez (ed.), Festschrift für Rudolf Bindschedler (1980), at 173–185.

· M. Bedjaoui (ed.), Droit international (1991), at 271, para. 55, 274, para. 64.

· William M. Landes & Richard A. Posner, The Influence of Economics on Law: A Quantitative Study August, 1992

· Kenneth W. Dam, The Economic Underpinnings of Patent Law (September 1993)

· K. Wolfke, Custom in Present International Law (2nd ed., 1993), at 42; H. Thirlway, International Customary Law and Codification (1972)

· Franck, Thomas. 1995. Fairness in International Law and Institutions. New York: Oxford University Press.




[1] International Judicial Institutions: The Architecture Of International Justice At Home And Abroad, R Goldstone and A Smith, Routledge, 2008.

[2] Eric A. Posner , Is the International Court of Justice Biased? (2004)


[4] Cass R. Sunstein, Rules and Rulelessness,(1994)

[5] The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO).

[6] Mike Posner, Decline of the International Court of Justice, 2004

[7] Professor Kingsbury, International Law