However establishment of International Court of Justice (ICJ) was a remarkable step for

enforcement of international laws but many of provisions of its statute favours the
power bloc of the world. The issues with ICJ are as follows:-

Key Issues

Article 36 (1) of statute states that court has jurisdiction in matters specially provided in
convention or treaties. So this voluntary clause paves the way for parties to not
participate in proceedings and abide by decision of court in a particular matter. For
example Iran refused to participate in case of Iran hostage crisis brought by USA which is
based on voluntary clause of Vienna Convention on Diplomatic Relations and not
complied with the order of Court.

Voluntary clause for Compulsory Jurisdiction – Article 36 (2) of statute states that state
party can declare any time to accept compulsory jurisdiction of International Court of
Justice in matters related to conventions or international law. Till 2011 only 66 members
has accepted compulsory jurisdiction, so this limits the jurisdiction of court and among
Security Council members only UK has accepted.

Nicaragua Case – The Central Intelligence Agency (CIA) of USA mined Nicaragua ports
and harbors, so Nicaragua complaints in ICJ against USA for violation of various treaties
and general principles of international law. The USA argued that a) ICJ doesn’t have
jurisdiction on treaties and b) compulsory jurisdiction did not apply. So when ICJ awards
against USA, the USA refused to comply and withdrew its acceptance from compulsory
jurisdiction. When this case brought before Security Council, USA vetoed against
decision of council.

The Principal of Reciprocity further reduce jurisdiction of ICJ. It means any state party
which is previously accepted the compulsory jurisdiction of ICJ can withdraw it any time
by declarations. For example in Nicaragua case, USA has withdrawn its acceptance due
to courts judgement in 1984 that called upon USA to cease and refrain from using
unlawful force against govt of Nicaragua.

Security Council – Every state party to statute is obliged to abide by judgement of the
court and if fail to do so then case may be taken before Security Council. This provision
arise following issues:-

If in such case a member of Security Council itself involved then any resolution against
that member would be vetoed. This happened (USA uses its veto power) in Nicaragua
case when Nicaragua brought case of non compliance of USA with ICJ judgement before
the Security Council.

Also there is no obligation on Security Council to resolve any issue that brought before
Security Council. Also there is no method provided for concerned state that brought up
the issue before council to enforce Security Council to resolve the issue.

It is not clear that if Security Council modified decision or order of ICJ then that decision
can be challenged or not.

All above issues clearly depicts that Security Council has more power than International
Court of Justice especially when there is conflict b/w them.

Party Judges – Here Party judges means a) judges who are national of one of party or b)
ad hoc judges appointed by state party due to no representation of nationals in the
court. Many studies or reports shows that judges favour their home state and voted in
favour about 90% of the time irrelevant of matter or situations of the case.

Bias Voting –The Bias voting is common in non party judges as well because they mostly
votes in favour of states similar to their states on dimensions of wealth, culture or
political regime. Mostly Security Council members are favoured as SC has special powers
in appointment of judges.

The Organizations not authorized by UN or private enterprises can’t approach to court

for any kind of dispute. Even the organization like ICC is out of jurisdiction of court.

Suggestions

As per present conflict scenario in the world, there is need to increase credibility of
International Court of Justice in comparison to Security Council. The enforcement of
award of ICJ shall be exclusive power of ICJ or decided by voting in General Assembly of
UN especially in cases especially if member of Security Council found guilty.

If Security Council reversed or modified judgement of ICJ on issue that taken before it
then there shall be a procedure to take action against that decision either in GA of UN or
elsewhere.