Seventy-five years into the existence of the United Nations, the International Court of Justice sits proudly as the upholder of the international rule of law and the defender of the rights of nations and peoples large and small. The ICJ, building on the work of its League of Nations predecessor, the Permanent Court of International Justice, has developed a jurisprudence that takes pride of place in the consolidation of international law. The Court has upheld and elaborated on the right of peoples to self-determination, legal principles of international public policy binding on all Governments, norms that give a legal interest to all Governments, and norms of human rights and humanitarian law.

It is as a Court of law that the distinctiveness of the ICJ resides. Its function is to clarify and uphold the content of the law, and it has historically done so by providing Advisory Opinions to United Nations organs such as the UN General Assembly, and by deciding on cases brought to it by consenting Governments. In principle, the ICJ can only decide on contentious cases between two or more Governments with the consent of those Governments. That consent may be express or implied. It may be given in advance on a general basis or in particular cases. In a contentious case brought before it, the Court may, at the request of a party, order interim measures of protection, to conserve the situation against damage, destruction, or deterioration. The Court recently did so when, at the request of the Gambia, it ordered the Government of Myanmar to take urgent measures for the protection for the Rohingyas in Myanmar.  The Court, as it did in this case, can order interim measures even as it deliberates on whether it actually has jurisdiction to decide on the case.

Historically, the Court has been recognized as having two bases for its jurisdiction: first, the consent of the states concerned when it comes to disputes between Governments; second, a request for an advisory opinion by a UN organ or specialized agency authorized to request such an opinion. Until now, the Court has not exercised its jurisdiction outside of these two contexts. But a changing world requires the Court to modernize its role. The great international jurist, Wolfgang Friedman, considered that in his time international law had moved from a law of coexistence to a law of cooperation. Now international law must also become a law of security and protection. This is because threats to the earth and its inhabitants have become so grave and governments have been so unable to take decisions for the protection of both that it behoves the Security Council, the General Assembly, the Secretary-General and the International Court of Justice to take on the role of guardians of international security and human welfare.

The ICJ can, in the future, modernize its role in three important areas: first, the Court can give content to its role as the principal judicial organ of the United Nations. Second, the Court can amplify on a statement it has previously made that it has an inherent competence to pronounce on legal issues arising before it. And, third, the Court can develop a fact-finding role as provided for in its governing Statute. Shabtai Rosenne’s classic work on the Law and Practice of the International Court of Justice noted that the Court as a principal organ is an integral part of the United Nations. The Court, in exercising its judicial function of deciding a dispute or rendering an advisory opinion must cooperate in the attainment of the aims of the Organization and strive to give effect to the decisions of other principal organs, and not achieve results which would render them inconsequential. One context, in which the Court can play an important role is in supporting decisions of the Secretary-General taken in the discharge of its competences under the Charter. On the inherent jurisdiction and competence of the Court, a concept that it has itself invoked in the past, the Court must consider itself as the guardian of legality, and must be ready to uphold the validity of long-standing decisions of sister courts and tribunals.

On the fact-finding role of the Court, Rosenne has pointed out that

 “the Court can set up a miscellaneous group of ad hoc bodies to carry out an enquiry or give an expert opinion (Article 50)” but noted that “while the Court’s task is limited to functions of a judicial character, its power of action and decision is subject to no limitation from the fact that the dispute before it might also be part of a dispute that is within the competence of another organ or organ or even more than one.:

“If the maintenance of international peace and security and today peacemaking are the major purposes and functions of the United Nations as a whole (including the Court), the Charter confers no exclusive competence upon any one principal organ.” The ICJ should, in the future, exercise a competence similar to that of the Indian Supreme Court which has developed a practice of initiating fact-finding into situations of glaring injustice and offering its views on such situations.

In sum, the role of the ICJ, in the future can be developed in five areas: deciding on cases Governments bring before it, providing advisory opinions to UN organs and agencies, developing its role as the principal judicial organ of the UN, further developing the concept of its inherent jurisdiction, and developing a fact-finding role in the service of humanity. It is thus that the Court can modernize its future role.

Stabroek News (Guyana)