Introduction
The Justice plays a dominant role to provide for rule of law
which is so essential for strengthening the foundations of democracy. This is
more important for a developing democracy like Bangladesh where weaknesses of
democracy in the absence of a strong Justice could pose threat to individual
liberty. Access to justice and Justice as the last resort to justice is the
demand of any democracy. Justice rescues the weak from the misuse of power by
the strong; it protects the minority from the tyranny of the majority. For
Justice to be strong and effective, Court of Justice & Its Role In
International Dispute Settlement is the first precondition.
Objectives & Scope of the Study
The objectives of this research are:
-
to review the present status of the Court of Justice & Its Role In
International Dispute Settlement
-
to analyze & assess the existing measures for ensuring Court of
Justice & Its Role In International Dispute Settlement
-
to find out weakness and problems of Justice
-
to propose the betterment options for International Court of Justice &
Its Role In International Dispute Settlement & its improvement
-
to ensure high standard of justice & people confidence on Justice.
The scope of this research includes the areas of information
required to Collect analyze regarding the International Court of Justice &
Its Role In International Dispute Settlement.
Utility
In the field of Justice the subject matter has a great
importance. It is not only necessary for judicial person but also necessary for
public in general to get justice. I hope that this will be a valuable asset for
later workers in this field. Overall I expect that this thesis will benefit the
country & countrymen.
Limitations
In conducting this research some limitations have found.
This field of research is very complicated and the materials are not available.
In case of foreign elements it is very difficult to collect recent information
and data. The collection of materials is not easy and free.
Conclusion
In Bangladesh Justice is a very important part of the
government. Because as a growing democratic country it needs heavy judicial
structure & position to ensure the public right & remedy. This can be
ensured by strong International Court of Justice & Its Role In
International Dispute Settlement.
It is expected that this thesis will contribute to improve
the judicial administration and will be a part of the development in
Bangladesh.
Introduction
The creation of the court represented the culmination of a
long development of methods for the pacific settlement of international
disputes ,the origins of which can traced back to classical times .
Article 33 of the united Nations Charter lists the following
methods for the pacific settlement of disputes between states: negotiation .
enquiry, mediation conciliation arbitration, judicial settlement, and resort to
regional agencies or arrangement; good offices should also be added to this
list. Among these methods, certain involve appealing to third parties for
example, mediation places the parties to a dispute in a position in which they
can themselves resolve their dispute thanks to the intervention of a third
party. Arbitration goes further, in the sense that a binding settlement can be
achieved . the same is true of judicial settlement (the method applied by the
international court of justice ), except that a court is subject to stricter
rules than an arbitral tribunal, particularly in procedural matters.
Mediation and arbitration preceded judicial settlement in
history.The former was known in ancient India and in the Islamic world, whilst
numerous examples of the latter are to be found in ancient Greece, in China,
among the Arabian tribes, in maritime customary law in medieval Europe and in
papal practies.
Objectives
The modern history of international arbitration is however,
generally recognized as dating from the so-called jay treaty of 1794 between
the united states of America and great Britain the treaty of amity, commerce
and navigation provided for the creation of three mixed commissions, composed
of American and British nationals in equal number, whose takes it would be to
settle a number of outstanding question between the two countries which it had
not been possible to resolve by negotiation.
Whilst it is true that these mixed commission were not
strictly speaking organs of third-party adjudication they were intended to
function to some extent as tribunals.
Research Methodology
The methodology used in the thesis is Qualitative
Methodology. My research works are based on Analytical study. The
main object this study is to find out the cause of Greenhouse Effect & how
can protection this problem.
These are Primary sources & Secondary sources. The
source based data has been collected from the International Laws & current
situation. Other data collected from books, journals, newspaper, website, and
internet.
The International Court of Justice (ICJ)
The outbreak of war in September 1939 inevitably had serious
consequences for the PCIJ, which had already for some years known a period of
diminished activity. After its last public sitting on 4 December 1939, the
permanent court of International justice did not in fact deal with any judicial
business and no further elections of judges were help. In 1940 the court
removed to GENEVA, a single judge remaining at the HAGUE, together with a few
register officials of Dutch nationality. It was inevitable that even under the
stress of the war some thought should be given to future of the court, as well
to the creation of a new international political order.
In 1942 the United states secretary of state and the foreign
secretary of the United Kingdom declared themselves in favour of the
establishment or re-establishment of an international court after war, and the
Inter-American juridical committee recommended the extension of the PCLTs
jurisdiction. Early in 1943, the United Kingdom Government took the initiative
of inviting a number of experts to London to constitute an informal
inter-Allied committee to examine the matter. This committee, under the
chairmanship of Sir William Malkin(United Kingdom), held 19meetings, which were
attended by jurists from 11 countries. In its report, which was published on 10
February 1944, it recommended: that the statue of any new international court
should be based on that of the permanent court of international court of
Justice. Meanwhile, on 30 October 1943, following a conference between China,
the USSR, the United Kingdom and the United States, a joint declaration was
issued recognizing the necessity “of establishing at the earliest practicable
date a general international organization,
based on the principle of the sovereign equality of all
peace-loving States, and open to membership by all such States, large and
small, for the maintenance of international peace and security”.
This declaration led to exchanges between the Four Powers at
Dumbarton Oaks, resulting in the publication on 9 October 1944 of proposals for
the establishment of a general international organization, to include an
international court of justice. The next step was the convening of a meeting in
Washington, in April 1945, of a committee of jurists representing 44 States.
This Committee, under the chairmanship of G. H. Hackworth (United States), was
entrusted with the preparation of a draft Statute for the future international
court of justice, for submission to the San Francisco Conference, which during
the months of April to June 1945 was to draw up the United Nations Charter.
The San Francisco Conference nevertheless showed some
concern that all continuity with the past should not be broken, particularly as
the Statute of the PCIJ had itself been drawn up on the basis of past
experience, and it was felt better not to change something that had seemed to
work well. The Charter therefore plainly stated that the Statute of the International
Court of Justice was based upon that of the PCIJ. At the same time, the
necessary steps were taken for a transfer of the jurisdiction of the PCIJ so
far as was possible to the International Court of Justice. The judges of the
PCIJ all resigned on 31 January 1946, and the election of the first Members of
the International Court of Justice took place on 6 February 1946, at the First
Session of the United Nations General Assembly and Security Council. In April
1946, the PCIJ was formally dissolved, and the International Court of Justice,
meeting for the first time, elected as its President Judge Jose Gustavo
Guerrero ( El Salvador), the last President of the PCIJ. The Court appointed
the members of its Registry (largely from among former officials of the PCIJ)
and held an inaugural public sitting, on the 18th of that month. The first case
was submitted in May 19472. It concerned incidents in the Corfu
Channel and was brought by Ihc United Kingdom against Albania.
Composition
The ICJ is composed of fifteen judges elected to nine year
terms by the UN General Assembly and the UN Security Council from a list of
persons nominated by the national groups in the Permanent Court of Arbitration.
The election process is set out in Articles 4-19 of the 1CJ statute. Judges
serve for nine year terms and may be re-elected for up to two further terms.
Elections take place every three years, with one-third of the judges retiring
(and possibly standing for re-election) each time, in order to ensure
continuity within the court.
Should a judge die in office, the practice has generally
been to elect a judge of the same nationality lo complete the term. No two may
be nationals of the same country. According to Article 9, the membership of the
Court is supposed to represent the “main forms of civilization and of the
principal legal systems of the world”. Essentially, this has meant common law,
civil law and socialist law (now post-communist law). Since the 1960s four of
the five permanent members of the Security Council (France, Russia, the United
Kingdom, and the United States) have always had a judge on the Court, The
exception was China (the Republic of China until 1971, the People’s Republic of
China from 1971 onwards), which did not have a judge on the Court from 1967-1985,
because it did not put forward a candidate.
Article 2 of the Statute provides that all judges should be
“elected regardless of their nationality among persons of high moral
character”, who are either qualified for the highest judicial office in their
home states or known as lawyers with sufficient competence in international
law. Judicial independence is dealt specifically with in Articles 16-18. Judges
of the ICJ are not able to hold any other post, nor act as counsel. In practice
the Members of the Court have their own interpretation of these rules. A judge
can be dismissed only by a unanimous vote of other members of the Court.
Despite these provisions, the independence of ICJ judges has been questioned.
For example, during the Nicaragua Case, the USA issued a iommuniqufi suggesting
that it could not present sensitive material to the Court because of the
presence of judges from Eastern bloc states.
Judges may deliver joint judgments or give their own
separate opinions. Decisions and Advisory Opinions are by majority and, in the
event of an equal division, the President’s vote becomes decisive. Judges may
also deliver separate dissenting opinions.
Ad hoc judges
Article 31 of ihe statute sets out a procedure whereby ad
hoc judges sit on contentious cases before the Court. This system allows any
party to a contentious case to nominate a judge of their choosing. H is
possible that as many as seventeen judges may sit on, one case.
This system may seem strange when compared with domestic
court processes, but its purpose is to encourage states to submit cases to the
Court. For example, if a state knows it will have a judicial officer who can
participate in deliberation and offer other judges local knowledge and an
understanding of the state’s perspective that state may be more willing to
submit lo the Court’s jurisdiction.
Chambers
Generally, the Court sits as full bench, but in the last
fifteen years it has on occasion sat as a chamber. Articles 26-29 of the
statute allow the Court to form smaller chambers, usually 3 or 5 judges, to
hear cases. Two types of chambers are contemplated by Article 26: firstly,
chambers for special categories of cases, and second, the formation of ad hoc
chambers to hear particular disputes, la 1993 a special chamber was
established, under Article 26(1) of the 1CJ statute, to deal specifically with
environmental matters (although this chamber has never been used).
Ad hoc chambers are more frequently convened. For example,
chambers were used to hear the Gulf of Maine Case (USA v Canada). In that case,
the parties made clear they would withdraw the case unless the Court appointed
judges to the chamber who were acceptable to the parties. On the other hand,
the use of chambers might encourage greater recourse to the Court and thus
enhance international dispute resolution.
Re-elected were France’s Ronny Abraham and Jordan’s Awn
Shawkat Al-Khasawneh (terms expired on 5 February 2009), while UK’s Christopher
Greenwood. Brazil’s Antonio Au gusto CancadoTrindade and Somalia’s
AbdulqawiYusuF(terms began on 6 February 2009) were newly elected.
The declared candidates Sayeman Bula-Bula (Democratic
Republic of the Congo.), Miriam Defensor-Santiago (Philippines) and Maurice
Kamto (Cameroon) lost in the final voting. The 3 new judges replaced UK’s
Rosalvn Higgins (1CJ President), Gonzalo Parra Arantuircn of Venezuela and
Madagascar’s Raymond Ranjeva (terms all expired on 5 February 2009).
Jurisdiction
Main article: Jurisdiction oft he International Court of
Justice As stated in Article 93 of the UN Charter, all 192 UN members are
automatically parties to the Court’s statute. Non-UN members may also become
parties to the Court’s statute under the Article 93(2) procedure. For example,
before becoming a UN member state, Switzerland used this procedure in 1948 to
become a party. And Nauru became a party in 1988. The issue of jurisdiction is
considered in the two types of 1CJ cases: contentious issues and advisory
opinions.
Contentious issues
In contentious cases (adversarial proceedings seeking to
settle a dispute), the ICJ produces a binding ruling between states that agree
to submit to the ruling of the court. Only suites may be parties in contentious
cases. Individuals, corporations, parts of a federal suite. NGOs, UN organs and
self-determination groups are excluded from direct participation in cases,
although the Court may receive information from public international
organisations. This does not preclude non-state interests from being the
subject of proceedings if one state brings the case against another. For
example, a state may, in case of “diplomatic protection”, bring a case on
behalf of one of its nationals or corporations. The International Court of
Justice Research Guide Written by Dana Neaesu Last Updated January 23, 2008
Jurisdiction is often a crucial question for the Court in
contentious cases. (See Procedure below.) The key principle is that the ICJ has
jurisdiction only on the basis of consent. Article 36 outlines four bases on
which the Court’s jurisdiction may be founded.
First. 36(1) provides that parties may refer cases to the
Court (jurisdiction founded on “special agreement” or “compromis”). This method
is based on explicit consent rather than true compulsory jurisdiction.
Second, 36(1) also gives the
Court jurisdiction over “matters specifically provided for … in treaties and
conventions in force”. Most modern treaties will contain a compromissory
clause, providing for dispute resolution by the ICJ. For
example, during the Iran hostage crisis, 1 ran refused to participate in a case
brought by the US based on a compromissory clause contained in the Vienna
Convention on Diplomatic Relations, not did it comply with the judgment. Since
the 1970s, the use of such clauses has declined. Many modern treaties set out
their own dispute resolution regime, often based on forms of arbitration.
Third, Article 36(2) allows
states to make optional clause declarations accepting the Court’s jurisdiction.
The label “compulsory” which is sometimes placed on Article 36(2) jurisdiction
is misleading since ftolaratfcns by states are voluntary.
Furthermore, many declarations contain reservations, such as
exclusion from jurisdiction certain types of disputes (“ratione material”). The
principle of reciprocity may further limit jurisdiction. As of February 2011,
sixty-six states had a declaration in force. Of the permanent Security Council
members, only the United Kingdom has a declaration. In the Court’s early years,
most declarations were made by industrialized countries. Examples include the
USA, as mentioned previously and Australia who modified their declaration in
2002 to exclude disputes on maritime boundaries (most likely to prevent an
impending challenge from East Timor who gained their independence two months
later).
Finally. 36(5) provides for jurisdiction on the basis of
declarations made under the Permanent Conn of international Justice’s statute.
Article 37 of the Statute similarly transfers jurisdiction under any
compromisers clause in a treaty that gave jurisdiction to the FCIJ.
International Law and International Jurisdiction
At the end of the 19th century, governments met at the First
Peace Conference at The Hague and decided to codify international law in
treaties. Furthermore, they reached an agreement lo establish the first
permanent international court, the Permanent Court of Arbitration.
Article 14 of the Covenant of the League of Nations provided for the
creation of a judicial body entrusted with two kinds of jurisdiction:
contentious and advisory were clearly envisaged. In 1921, the predecessor of
the Imcrnaiioruil Court of Justice (1C.I). the Permanent Court of International
Justice (PC1J) materialized. The PC1.I was dissolved in 1946 at the same time
as the League’ of Nations.
The 1CJ is an organ of the United Nations and the Statute of
the International Court of Justice forms an integral part of the Charter of the
United Nations. The court has functioned since 1945. It does not have
compulsory international jurisdiction, and its main function remains to decide
in accordance with international law all disputes submitted to
it, (Article 38).
The ICJ: Judgments & Advisory Opinions. How to Find a
Judgment
Within Ihe limits of its rationemateriae, as mentioned
above, the ICJ has both contentious and advisory jurisdictions. For the last
sixty years it has had the opportunity 10 render hundreds of opinions which,
due to numerous print and online sources are relatively easy to research.
The judgments of the Court are binding in law, although
states do not always comply with the 1C.) judgments. However, as statistics
show – see Paulson, Colter, “Compliance with Final Judgments of the
International Court of Justice since 1987” 98 Am. J. Int’l. L. 434, 458-459
(2004) – while the overall percentage of full compliance by states has
decreased since 1987 from 80% from 1946 to 1987 to 60% from 1987 to 2004,
partial compliance has probably increased. Furthermore, the ICJ continues to be
perceived as fulfilling its role a part of the United Nations system of
maintaining peace and security.
The ICJ: The Procedure before the Court How to Find the
Court Rules
The Statute ot’lhe ICJ contains the relevant rules regarding
the procedure before the Court: “Competence of the Court” (Arts. 34-38),
“Procedure” (Arts. 39-64), “Advisory Opinions” (Arts. 65-68).
Advisory opinion
Audience of the “Accordance with International Law of the
Unilateral Declaration of Independence by the Provisional Institutions of
Self-Government of Kosovo”
An advisory opinion is a function of the Court open only to
specified United Nations bodies and agencies. On receiving a request, the Court
decides which States and organizations might provide useful information and
gives them an opportunity to present written or oral statements. Advisory
Opinions were intended as a means by which UN agencies could seek the Court’s
help in deciding complex legal issues that might fall under their respective
mandates. An advisory opinion derives its status and authority from
the fact that it is the official pronouncement of the principal judicial organ
of the United Nations, Advisory Opinions have often been controversial,
either because the questions asked are controversial, or the case was pursued
as an indirect way of bringing what is really a contentious case before the
Court. Examples of advisory opinions can be found in the section advisory
opinions in the List of International Court of Justice cases article. One such
well-known advisory opinion is the Nuclear Weapons Case.
ICJ and the Security Council
Article 94 establishes the duty of all UN members to comply
with decisions of the Court involving them. If parties do not comply, the issue
may be taken before the Security Council for enforcement action. There are
obvious problems with such a method of enforcement. If the judgment is against
one of the permanent five members of the Security Council or its allies, any
resolution on enforcement would then be vetoed. This occurred, for example,
after the Nicaragua case, when Nicaragua brought the issue of the U.S.’s
non-compliance with the Court’s decision before the Security Council.
Furthermore, the most effective form to uiku action for the Security
Council – coercive action under chapter VII of the United Nations Charter – can
only be justified if international peace and security are at slake. The Security
Council has never done this so far. The relationship between the ICJ and the
Security Council, and the separation of their powers, was considered by the
Court in 1992 in the Pan Am case. The problem was that these sanctions had been
authorized by the Security Council, which resulted with a potential conflict
between the Chapter VII functions of the Security Council and the judicial
function of the Court. The Court decided, by eleven votes to five, that it
could not order the requested provisional measures because the rights claimed
by Libya, even if legitimate under the Montreal Convention, prima facie could
not be regarded as appropriate since the action was ordered by the Security
Council. In accordance with Article 103 of the UN Charier, obligations under
the Charter took precedence over other treaty obligations. Nevertheless the
Court declared the application admissible in 1998. A decision on the merits has
not been given since the parties (United Kingdom, United States and Libya)
settled the case out of court in 2003.
Should either party fail “to perform the obligations
incumbent upon it under a judgment rendered by the Court”, the Security Council
may be called upon to “make recommendations or decide upon measures” if the
Security Council deems such actions necessary. In practice, the Court’s powers
have been limited by the unwillingness of the losing party to abide by the
Court’s ruling, and by the Security Council’s unwillingness to impose
consequences.
Law applied
Main article: Sources of international law
When deciding cases, the Court applies international law as
summarized in-Article 38 of the IC.I Statute provides thai in arriving at its
decisions the Court shall apply international conventions, international
custom, and the “general principles of law recognized by civilized nations”. It
may also refer to academic writing (“the teachings of the most highly qualified
publicists of the various nations”) and previous judicial decisions to help
interpret the law, although the Court is not formally bound by its previous
decisions under the doctrine of stare dec’is’is. Article 59 makes clear that
the common law notion of precedent or stare decisis does not apply to the
decisions of the ICJ. The Court’s decision binds only the parties to that
particular controversy. Under 38(l)(d), however, the Court may consider its own
previous decisions. In reality, the ICJ rarely departs from its own previous
decisions and treats them as precedent in a way similar to superior courts in
common law systems. Additionally, international lawyers commonly operate as
though ICJ judgments had precedential value.
If the parties agree, they may also grant the Court the
liberty to decide ex aequo et bono (“in justice and fairness”), granting the
ICJ the freedom to make an equitable decision based on what is fair under the
circumstances. This provision has not been used in the Court’s history. So far
the International Court of Justice has dealt with about 130 cases.
Procedure
The ICJ is vested with the power to make its own rules. Court
procedure is set out in Rules of Court of the International Court of Justice
1978. (as amended on 29 September Z005).
Preliminary objections
A respondent who does not wish to submit to the jurisdiction
of the Court may raise Preliminary Objections. Any such objections must be
ruled upon before the Court, can address the merits of the applicant’s claim.
Often a separate public hearing is held on the Preliminary Objections and the
Court will render a judgment. Respondents normally file Preliminary Objections
lo the jurisdiction of the Court and or the admissibility of the case.
Inadmissibilily refers lo a range of arguments about factors the Court should
take into account in deciding jurisdiction; for example, that the issue is not
justiciable or that it is not a “legal dispute”.
In addition, objections may be made because all necessary
parties are not before the Court. If the case necessarily requires the Court to
rule on the rights and obligations of a state that has not consented to the
Court’s jurisdiction, the Court will not proceed to issue a judgment on the
merits. Once till written arguments are filed, the Court will hold a public
hearing on the merits.
Once a case has been Hied, any party (but usually the
Applicant) may seek an order from the Court lo protect the status quo pending
the hearing of the case. Such orders are known as Provisional (or Interim)
Measures and are analogous to jnterlocutory injunctions in United States law.
The Court must be satisfied lo have prima facie jurisdiction to hear the merits
of the case before granting provisional measures.
Applications to intervene
In cases where a third slate’s interests are affected, that
state may be permitted lo intervene in the case, and participate as a full
party. Under Article 62, a state “with an interest of a legal nature” may
apply; however, it is within the Court’s discretion whether or not to allow the
intervention. Intervention applications are rare — the first successful
application occurred in 1991.
Judgment and remedies
Once deliberation has taken place, the Court will issue a
majority opinion. Individual judges may issue separate opinions (if they agree
with the outcome reached in the judgment of the court but differ in their
reasoning) or dissenting opinions (if they disagree with the majority), No
appca! is possible, though any party may ask for the court to clarify if there
is a dispute as to the meaning or scope of the court’s judgment.
Criticisms
This law-related article does not
cite its references or sources. You
can hel including appropriate citations, which can be found
through legal research. The International Court has been criticized with
respect to its rulings, its procedures, and its authority. As with United
Nations criticisms as a whole, many of these criticisms refer more to the
general authority assigned to the body by member states through its charter
than to specific problems with the composition of judges or their rulings.
Major criticisms include:
- “Compulsory”
jurisdiction is limited to cases where both parties have agreed to
submit to its decision,
and, as such, instances of
aggression tend to be automatically
escalated to and adjudicated by the Security Council. - Organizations,
private enterprises, and individuals cannot have their cases takento the
International Court, such as to appeal a national supreme court’s
ruling.U.N. agencies likewise cannot bring up a case except in advisory
opinions (a process initiated by the court and non-binding).
Other existing international thematic courts, such as the
ICC, are not under the umbrella of the International Court.
• The International
Court docs not enjoy
a full separation of powers,
with permanent members of the Security Council being able to veto enforcement
of even cases to which they consented in advance to be bound
Members of the Court
The International Court of Justice is composed of 15 judges
elected to nine-year terms of office by the United Nations General Assembly and
the Security Council. These organs vote simultaneously but separately. In order
to be elected, a candidate must receive an absolute majority of the votes in
both bodies. This sometimes makes it necessary for a number of rounds of voting
to be carried out.
In order to ensure a measure of continuity, one third of the
Court is elected every three years. Judges are eligible for re-election. Should
a judge die or resign during his or her term of office, a special election is
held as soon as possible to choose a judge to fill the Linexpired part of the
term.
Elections arc held in New York (United States of America) on
the occasion of the annual autumn session of the General Assembly. The judges
elected at a triennial election enter upon their term of office on 6 February
of the following year, after which the Court proceeds to elect by secret ballot
a President and a Vice-President to hold office for three years.
All States parlies to the Statute of the Court have the
right to propose candidates. These proposals arc- made not by the government of
the State concerned, but by a group consisting of the members of the Permanent
Court of Arbitration (see “History”) designated by thai State, i.e. by the four
jurists who can be called upon to serve as members of an arbitral tribunal
under the Hague Conventions of 1899 and 1907.The names of candidates must be
communicated to the Secretaiy-General of the United Nations within a time-limit
laid down by him/her.
Judice from among persons of high moral character, who
possess the qualifications required in their respective countries for
appointment to the highest judicial offices, or are jurisconsults of recognized
competence in international law.
The Court may not include more than one national of the same
State. Moreover, the Court as a whole must represent the main forms of
civilization and the principal legal systems of the world.
Once elected, a Member of the Court is a delegate
neither of the government of his own country nor of that of any other State.
Unlike most other organs of international organizations, the Court is not
composed of representatives of governments. Members of the Court are
independent judges whose first task, before taking up their duties, is to make
a solemn declaration in open court that they will exercise their powers
impartially and conscientiously.
In order to guarantee his or her independence, no Member of
the Court can be dismissed unless, in the unanimous opinion of the other
Members, he/she no longer fulfils the required conditions. This has in fact
never happened.
A Member of the Court, when engaged on the business of the
Court, enjoys privileges and immunities comparable with those of the head of a
diplomatic mission. In The Hague, ihe President takes precedence over the doyen
of the diplomatic corps, after which precedence alternates between judges and
ambassadors. Each Member of the Court receives an annual salary consisting of a
base salary (which for 2010 amounts to US$166,596) and post adjustment, with a
special supplementary allowance of US$15,000 for the President. On leaving
the Court, they receive annual pensions which, after a nine-year term of
office, amount to 50 per cent of the annual base salary.
Although the Court is deemed to be permanently in session,
only its President is obliged to reside in The Hague. In practice, the majority
oi Court Members reside in Vie Hague ana all will normally spend the greater
part of the year there.
Presidency
The President and the Vice-President are elected by the
Members of the Court every three years by secret ballot. The election is held
on the date on which Members of the Court elected at a triennial election are
to begin, their terms of office or shortly thereafter. An absolute majority is
required and there arc no conditions with regard to nationality. The President
and the Vice-President may be re-elected.
‘The President presides at alt meetings of the Court; he/she
directs its work and supervises its administration, with the assistance of a
Budgetary and Administrative Committee and of various other committees, all
composed of Members of the Court. During judicial deliberations, the President
has a casting vole in the event of votes being equally divided.
The President receives a special supplementary
allowance of 15,000 dollars per annum. In addition to his/her annual salary.
The Vice-President replaces the President in his/her
absence, in the event of his/her inability to exercise his/her duties, or in
the event of a vacancy in the presidency. For this purpose he/she receives a
daily allowance. In the absence of the Vice-President, this role devolves upon
the senior judge.
Chambers and Committees
Chambers :-
The Court generally discharges its duties as a full Court (a
quorum of nine judges, excluding judges ad hoc, being sufficient). But it may
also form permanent temporary chambers.
High Court three types of chamber:
the Chamber of Summary Procedure, comprising five judges,
including the President and Vice-President, and two substitutes, which the
Court is required by Article 29 of the Statute to form annually with a view to
the speedy dispatch of business;
- any
chamber, comprising at least three judges, that the Court may form
pursuant
to Article 26, paragraph 1, of the Statute to deal with certain categories
of cases, such as labor or communications; - any
chamber that the Court may form pursuant to Article 26, paragraph 2, of
the Statute to deal with a particular case, after formally
consulting the parties regarding the number of its members – and
informally regarding their name- who will then sit in ail phases of the
case until its final conclusion, even if in the meantime they cease to be
Members of the Court.
In the Chamber’s 13 years of existence, however, no
State ever requested that a case be dealt with by it. The Court consequently
dceided in 2006 not to hold elections for a Bench for the said Chamber.
Despite the advantages that chambers can offer in certain
cases, under the terms of the Statute their use remains exceptional. Their
formation requires the consent of the parties. While, to date, no case has been
heard by either of the first two types of chamber, by contrast there have been
six cases dealt with by ad hoc chambers.
Chamber of Summary Procedure
The current composition of this Chamber which, at the
request of the parties, may hear and determine cases by summary procedure is as
follows:
Members:
President
- HisashiOvvada
- Vice-President
- Peter
Tomka
- Judges
- Abdul
G. Koroma
- Bruno
Simma Substitute members:
- Judges
- Bernardo
Sepulveda-Amor
- Leonid
Skotnikov
Rules Committee
In 1979, the Court established a standing Rules Committee.
This committee advises the Court on procedural issues and working methods.
The present composition of the Committee is as follows:
- Judges
- Awn
Shawkal Al-Khasawnch
- Ronny
Abraham
- Kenneth
Keith
- Leonid
Skotnikov
- Antonio
A. CancadoTrindade
- Christopher
Greenwood
- Judges
ad hoc
- Under
Article 3 1, paragraphs 2 and 3, of the Statute of the Court, a State
party to a case before the International Court of Justice which does not
have ajudge of its nationality on the Bench may choose a person to sit as
judge ad hoc in that specific case under the conditions laid down in
Articles 35 to 37 of the Rules of Court.
A judge ad hoc takes part in any decision concerning the
case on terms of complete equality with his/her colleagues and receives a fee
for every day on which he/she discharges his/her duties, that is to say, every
day spent in The Hague in order to take part in the Court’s work, plus each day
devoted to consideration of the case outside The 1 lague.
It follows from the foregoing that the composition of the
International Court of Justice will vary from one case to another and that the
number of judges sitting in a given case will not necessarily be 15. There may
be fewer, where one or more elected judges do not sit, or as many as 16 or 17
where there are judges ad hoc; in theory there may even be more than 17 judges
on the Bench if there are several parties to a case who are not in the same
interest. The composition of the Court may also sometimes vary from one phase
of a case to another: in other words, the composition need not necessarily be
the same with respect to provisional measures, preliminary objections and the
merits. Nevertheless, once the Court has been finally constituted for a given
phase of a case, i.e., from the opening of the oral proceedings on that phase
until the delivery of judgment with respect thereto, its composition will not
change.
The right of an elected judge having the nationality of one
of the parties in a case to sit in the case has not been seriously questioned
by legal scholars. It is clear simply from the result of the votes taken by the
Court and from the separate and dissenting opinions submitted that such judges
have often voted in disaccord with the submissions of their own country. on the
role of the Court, “that the institution, which was a survival of the old
arbitral procedures, was justified only by the novel character of the
international judicial jurisdiction and would no doubt disappear as such
jurisdiction became more firmly established”. Nevertheless, numerous writers
take the view that it is useful for the Court to have participating in its
deliberations a person more familiar with the views of one of the parties than
the elected judges may sometimes be.
How the Court works
The Court may entertain two types of cases: legal disputes
between States submitted to it bv them (contentious cases) and requests for
advisory opinions on legal questions referred to it by United Nations organs
and specialized agencies (advisory proceedings).
Contentious cases
Only Suucs (States Members of the United Nations and other
States which have become parties lo the Statute of the Court or which have
accepted its jurisdiction under certain conditions) may be parties to
contentious cases.
The Court is competent to entertain a dispute only if the
States concerned have accepted its jurisdiction in one or more of the following
ways;
- by
entering into a special agreement to submit the dispute to the Court;
- by
virtue of a jurisdictional clause, i.e., typically, when they are parties
to a treaty containing a provision whereby, in the event of a dispute of a
given type or disagreement over the interpretation or application of the
treaty, one of them may refer the dispute to the Court; through the
reciprocal effect of declarations made by them under the Statute whereby
each has accepted the jurisdiction of the Court as compulsory in the event
of a dispute with another State having made a similar declaration. A
number of these declarations, which must be deposited with the United
Nations Secretary-General, contain reservations excluding certain
categories of dispute.
States have no permanent representatives accredited to the
Court. They normally communicate with the Registrar through the medium of their
Minister for Foreign Affairs or their ambassador accredited to the Netherlands,
Where they are parties to a case before the Court they are represented by an
agent. In general, whenever a formal act is to be done by the government
represented, it is done by the agent. Agents are sometimes assisted by
co-agents, deputy agents or assistant agents and always have counsel or
advocates, whose work they co-ordinate, to assist them in the preparation of
pleadings and delivery of oral argument. Since there is no special
International Court of Justice Bar, there are no conditions that nave to
fulfilled for counsel or advocates to enjoy the right of arguing before it
except only that they must have been appointed by a government to do so.
Proceedings may be instituted in one of two ways:
Through the notification of a special agreement:
this document, which is of bilateral nature, can
be lodged with the Court by either of the States parties to proceedings or by
both of them. A special agreement must indicate the subject the dispute and the
parties thereto. Since there is neither an “applicant” State nor a “respondent”
State, in the Court’s publications their names are separated by an oblique
stroke at the end of the official title of the case, e.g., Benin/Niger; by
means of an application: the application, which is of a unilateral nature, is
submitted by an applicant State against a respondent State, It is intended for
communication to the latter Stale and the Rules of Court contain stricter
requirements with respect to its content. At the end of the official title of
the case the names of the two parties are separated by the abbreviation “v. ”
(For the Latin versus), e.g., Nicaragua v. Colombia.
The date of the institution of proceedings, which is that of
the receipt by the Registrar of the special agreement or application, marks the
opening of proceedings before the Court. Contentious proceedings include a
written phase, in which the parties file and exchange pleadings containing a
detailed statement of the points of fact and of law on which each party relies,
and an oral phase consisting of public hearings at which agents and counsel
address the Court.
By signing the Charter, a State Member of the United Nations
undertakes to comply with any decision of the Court in a case to which it is a
party. Since, furthermore, a case can only be submitted to the Court and
decided by it if the parties have in one way or another consented to its
jurisdiction over the case; it is rare for a decision not to be implemented. A
State which contends that the other side has failed to perform the obligations.
Court may lay the matter before the Security Council, which is empowered to
recommend or decide upon the measures to be taken to give effect to the
judgment.
The Court discharges its duties as a full court but, at the
request of the parties, it may also establish ad hoc chambers to examine
specific eases. A Chamber of Summary Procedure is elected every year by the
Court in accordance with its Statute.
The Registrar
The Conn appoints its Registrar from among candidates
proposed by Members of the Court, lie is elected for a term of seven years and
may be re-elected. The Court also appoints a Deputy-Registrar to assist him,
under the same conditions and in the same way as the Registrar.
The Deputy-Registrar assists the Registrar and acts as
Registrar in the latter’s absence. has recently been entrusted with wider
administrative responsibilities, including direct supervision Archives,
IT and General Assistance Divisions.
The present Registrar is Mr, Philippe Couvreur. of Belgian
nationality, \vh6 was elected on 10 February 2000 for a term of seven years and
who was re-elected on 8 February 2007 for a new term of seven years. The
present Deputy-Registrar is Ms. Therese de Saint Phalle. of American and French
nationality, who was elected on 9 October 2007 for a term of seven years as
from 19 February 2008 .
Cases
The Court has a twofold role: to settle, in accordance with
international law, legal disputes submitted to it by States (Contentious cases
) and to give advisory” opinions (Advisory proceedings’) on legal questions
referred to it by duly authorized United Nations organs and specialized
agencies.
In Contentious proceedings, when a dispute is brought before
the Court by a unilateral application filed by one State against another State,
the names of parties in the official title of the case are separated by the
abbreviation v. for the Latin versus (e.g., Cameroonv. Nigeria). When a dispute
is submitted to the Court on the basis of a special agreement between two
States, the names of the parties are separated by an oblique stroke (e.g.,
ndonesia/Mala he first case entered in the General List of the Court (Corfu
Channel (United Kingdom v. Albania}} was submitted on 22 May 1947.
List of Advisory Proceedings referred to the Court since
1946 by date of introduction List of Advisory Proceedings 2010
Judgment No.2867 of the Administrative Tribunal of the
International Labour Organization upon a Complaint Filed against the
International Fund for Agricultural Development (Request for Advisory Opinion)
2008
Accordance with international law of the unilateral
declaration of independence in respect of Kosovo (Request for Advisory Opinion)
2003
Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territor 1998
Legality of the Use by a State of Nuclear Weapons in Armed
Conflict 1989
Applicability of Article VI, Section 22, of the Convention
on the Privileges and
Immunities of the United Nations 1988
Applicability of the Obligation to Arbitrate under Section
21 of the United Nations Headquarters Agreement of 26 June 1947
Application for Review of Judgment No, 273 of the United
Nations Administrative Tribunal 1980
interpretation of (he Agreement Of 25 March 1951 between the
WHO and Egypt 1974
Western Sahara 1972
Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276
(1970)
Constitution of the Maritime Safety Committee of the
Inter-Governmental Maritime Consultative Organization 1955
Admissibility of Hearings of Petitioners by the Committee on
South West
Reservations to the Convention on the Prevention and
Punishment of the Crime Genocide 1949
Reparation for Injuries Suffered in the Service of the United
Nations 1947
Conditions of Admission of a State to Membership in the
United Nations (Article 4 of the Charter)
Basic Documents
The International Court of Justice was established by the
Charter of the United Nations, which provides that aii Member states of the
United Nations are ipsofaoio parties to the Court’s Statute. The composition
and functioning of the Court are organized by this Statute, and by the Rules of
the Court which are drawn up by the Court itself.
Since October 2001, the Court has also issued Practice
Directions for use by States appearing before it.
RECENT ACTIVITIES ISRAEL AND PALESTINIAN:
The International Court of Justice has ruled that Israel is
in breach of international law by establishing settlements in Occupied
Palestinian Territory, including East Jerusalem. The Court maintains that
Israel cannot rely on its right of self-defense or necessity to impose a regime
that violates international law. The Court also ruled that Israel violates
basic human rights by impeding liberty of movement and the inhabitants’ right
to work, health, education and an adequate standard of living. ‘
International intergovernmental organizations such as the
Conference of the High Contracting Parties to the Fourth Geneva Convention,
major organs of the United Nations, the European Union, and Canada regard the
settlements as a violation of international law. There is a consensus among
publicists that the prohibition of racial discrimination, irrespective of
territories, is an imperative norm of international law. Amnesty Internationa],
and Human Rights Watch have also characterized the settlements as a violation
of international law. In 1978, the Legal Adviser of the Department of State
reached the same conclusion.
In 1967, Theodor Meron, legal counsel to the Israeli Foreign
Ministry stated in a legal opinion to the Prime Minister, “My conclusion is
that civilian settlement in the administered territories contravenes the
explicit provisions of the Fourth Geneva Convention. The legal opinion,
forwarded to Prime Minister Levi Eshkol, was not made public at the time, and
the Labor cabinet progressively sanctioned settlements anyway; this action
paved the way for future settlement growth. In 2007, Meron stated that “I
believe that I would have given the same opinion today.
Julius Stone said that the notion that establishing
settlements violates Article 49(6) was “irony bordering on the absurd”: “We
would have to say that the effect of Article 49(6) is to impose an obligation
on the State of Israel to ensure (by force if necessary) that these areas,
despite their millennial association with Jewish life, shall be forever Jude
rein. Irony would thus be pushed to the absurdity of claiming that Article
49(6), designed to prevent repetition of Nazi-type genocidal policies of
rendering Nazi metropolitan territories Jude rein, has now come to mean
thatD.fV’l.Hthe West Bankn. D.n.Dmust be made Jude rein and must be so
maintained, if necessary by the use of force by the government of Israel
against its own inhabitants. Common sense as well as correct historical and
functional context exclude so tyrannical a reading of Article 49(6).
In 1998 the Israeli Minister of Foreign Affairs produced
“The International Criminal Court Background Paper. It concludes International
law has long recognized that there are crimes of such severity they should be
considered international crimes. Such crimes have been established in treaties
such as the Genocide Convention and the Geneva Conventions The following are
Israel’s primary issues of concern with the rules of the ICC]: The inclusion of
settlement activity as a “war crime” is a cynical attempt to abuse the Court
for political ends. The implication that the transfer of civilian population to
occupied territories can be classified as a crime equal in gravity to attacks
on civilian population centres or mass murder is preposterous and has no basis
in international law.
Human rights organizations
Settlements (darker pink) and areas of West Bank (lighter
pink) where access to Palestinians was closed or restricted, January 2006
Amnesty International argues that Israel’s settlement policy is discriminatory and
a violation of Palestinian human rights. Tselem claims that Israeli
travel restrictions impact on Palestinian freedom of movement and Palestinian
human rights have been violated in Hebron due to the presence of the settlers
within the Tselem, over fifty percent of West Bank land expropriated from
Palestinians has been used to establish settlements and create reserves of land
for their future expansion. The seized lands mainly benefit the settlements and
Palestinians cannot use them. The organization also claims that roads built by
Israel in the West Bank that are closed to Palestinian vehicles are
‘discriminatory.
Economy
Palestinian officials estimate that settlers sell goods
worth some $500 million to the Palestinian market. European Union law requires
a distinction to be made between goods originating in Israel and those from the
occupied territories. The former benefit from preferential custom treatment
according to the EU-Israel Association Agreement (2000); the latter don’t. In
2009, the United Kingdom’s Department for the Environment, Food and Rural
Affairs issued new guidelines concerning labelling of goods imported from the
West Bank. The new guidelines require labelling to clarify whether West Bank
products originate from settlements or from the Palestinian economy. Israel’s
foreign ministry said that the UK was “catering to the demands of those whose
ultimate goal is the boycott of Israeli products”; but this was denied by the
UK government, who said that the aim of the new regulations was to allow
consumers to choose for themselves what produce they buy.
The Israeli Supreme Court has ruled that Israeli
companies, are entitled to exploit the West Bank’s natural resources for
economic gain, and that international law must be “adapted” to the “reality on
the ground” of long-term occupation.
Incidents of violence
Gush Emunim Underground was a militant organization that
operated in 1979-1984. The organization planned attacks on Palestinian
officials and the Dome of the Rock. In 1994, Baruch Goldstein of Hebron, a
member of Kach carried out the Cave of the Patriarchs massacre, killing 29
Muslim worshipers and injuring 125. The attack was widely condemned by the
Israeli government and Jewish community. The Palestinian leadership has accused
Israel of “encouraging and enabling” settler violence in a bid to provoke
Palestinian riots and violence in retaliation.
Leading religious figures in the West Bank have harshly
critici cd these tactics. Rabbi Menachem Froman of Tekoa said that “Targeting
Palestinians and their property is a shocking thing, (…) It’s an act of hurting
humanity. (…) This builds a wall of fire between Jews and Arabs. The Yesha
Council and HananPorat also condemned suchactions. Other rabbis have been
accused of inciting violence against non-Jews. response to settler violence,
the Israeli government said that it would increase law enforcement and cut off
aid to illegal outposts.’ Some settlers are thought to lash out at Palestinians
because they are “easy victims.
In September 2011, settlers vandalized a mosque and an army
base. They slashed tires and cut cables of 12 army vehicles and sprayed
graffiti. In November 2011, the United Nations Office for Coordination of Human
Affairs (OCHA) m the Palestinian territories published a report on settler
violence that showed a significant rise compared to 2009 and 2010. The report
covered physical violence and property damage such as uprooted olive trees,
damaged tractors and slaughtered sheep. The report states that 90% of
complaints filed by Palestinians have been closed without charge.
Impact on peace process
Main article: Peace process in the Israeli-Palestinian
conflict Gush Katif was a block of 16 Israeli settlements in the southern Gaza
Strip. Its 8.000 residents were forced to leave and had their homes demolished
in August 2005 as part of Israel’s unilateral disengagement plan.
The settlements have been a source of tension between Israel
and the U.S. Jimmy Carter regarded the settlements as illegal and tactically
unwise. Ronald Reagan stated that they were legal but an obstacle to
negotiations In 1991, the U.S. delayed a subsidized loan to pressure Israel on
the subject of settlement-building in the Jerusalem-Bethlehem corridor. In
2005, U.S.
Final status proposals have called for retaining long-established
communities along the Green Line and transferring the same amount of land in
Israel to the Palestinian state. The Clinton administration proposed that
Israel keep some settlements in the West Bank, especially those in large blocs
near the pre-1967 burden ofhrad, with the Palestinians receiving concessions of
land in other pails of the country.Both Clinton and Tony Blair pointed out the
need for territorial and diplomatic compromise based on the validity of some of
the claims of both sides.
In December 2010, the United States criticised efforts by
the Palestinian Authority to impose borders for the two states through the
United Nations rather than through direct negotiations between the two sides.
In February 201 1, it vetoed a draft resolution to condemn all Jewish
settlements established in the occupied Palestinian territory since 1967 as
illegal. The resolution, which was supported by all other Security Council
members and co-sponsored by over 120 nations. would have demanded that “Israel,
as the occupying power, immediately and completely ceases all settlement
activities in the occupied Palestinian territory, including East Jerusalem and
that it filly respect its legal Obligations in this regard. The U.S.
representative said that while it agreed that the settlements were illegal, the
resolution would harm chances for negotiations Israel’s deputy Foreign
Minister, Daniel Ayalon, said that the “UN serves as a rubber stamp for the
Arab countries and, as such, the General Assembly has an automatic majority.
and that (he vote “proved that the United States is the only country capable of
advancing (he peace process and the only righteous one speaking the truth: that
direct talks between Israel and the Palestinians are required. Palestinian
negotiators, however, have refused to resume direct talks until Israel ceases
all settlement activity.
PROPOSALS FOR LAND SWAP
The Clinton Parameters included a plan on which the
Palestinian State was to include 94-96% of the West Bank, and around 80% of the
settlers were to remain under Israeli sovereignty, and in exchange for that,
Israel will concede some territory (so called Territory Exchange’ or ‘Land
Swap’) within the Green Line (1967 borders). The swap would consist of 1-3% of
Israeli territory, such that the final borders of the West Bank, part of the
Palestinian state would include 97% of the land of the original borders.
Under any peace deal with the Palestinians, Israel intends
to keep the major settlement blocs close to its borders, which contain over 80%
of the settlers. Prime Ministers Yitzhak Rabin, Ariel Sharon, and Benjamin
Netanyahu have all stated Israel’s intent to keep such blocs under any peace
agreement. U.S. President George W. Bush acknowledged that such areas should be
annexed to Israel in a 2004 letter to Prime Minister Sharon.
According to Mitchell G. Bard: “Ultimately, Israel may
decide to unilaterally disengage from the West Bank and determine which
settlements it will incorporate within the borders it delineates. Israel would
prefer, however, to negotiate a peace treaty with the Palestinians that would
specify which Jewish communities will remain intact within the mutually agreed
border of Israel, and which will need to be evacuated. Israel will undoubtedly
insist that some or all of the “consensus” blocs become part of Israel.
Proposal of dual citizenship
A number of proposals for the granting of Palestinian
citizenship or residential permits to Jewish settlers in return for the removal
of Israeli military installations from the West Bank have been fielded by such
individuals as Arafat, Ibrahim Sarsur and Ahmed Qurei.
The idea has been expressed by both advocates of the
two-state solution ‘ and supporters of the settlers and
conservative or fundamentalist currents in Israeli Judaism that, while
objecting to any withdrawal, claim stronger links lo the land than to the state
of Israel.
Impact on Palestinian demographics
Sushil P. Seth writes that Israelis seem to feel that
increasing settlements will force many Palestinians to flee to other countries
and that the remainder will be forced to live under Israeli terms.
Human Rights Watch has determined that Israeli settlement
policies has had the effect of “forcing residents to leave their communities”.
In 2008, Condoleezza Rice suggested sending Palestinian
refugees to South America, which might reduce pressure on Israel to withdraw
from the settlements.
Palestinian Statehood bid of 2011
American refusal to declare the settlements illegal was said
to be the determining factor in the 2011 attempt to declare Palestinian
statehood at the United Nations, the so-called Palestine 194 initiative.
Israel announced additional settlements in response to the
Palestinian diplomatic initiative and Germany responded by moving to stop
deliveries to Israel of submarines capable of carrying nuclear weapons.
Educational institutions
Ariel University Center of Samaria, formerly the College of
Judea and Samaria, is the major Israeli institution of higher education in the
West Bank. It is Israel’s largest public college. The college was accredited in
1994 and awards bachelor degrees in arts, sciences, technology, architecture
and physical therapy. Teacher training colleges include Herzog College in
AlonShvut and Orot Israel College in Elkana. Ohalo College is located in
Katzrin, in the Golan Heights. Curricula at these institutions are overseen by
the Council for Higher Education in Judea and Samaria (CHE-JS).
Evacuation of Neve Dekalim.The evacuation was carried out
with force in some instances, for example in Yamit. The settlements were
demolished, as it was feared that settlers might try to return to their homes
after the evacuation. srael’s unilateral disengagement plan took place in 2005.
It involved the evacuation of settlements in the Gaza Strip and part of the
West Bank, including all 21 settlements in Gaza and four in the West Bank,
while retaining control over Gaza’s borders, coastline, and airspace.Within the
former settlements, almost all buildings were demolished by Israel, with the
exception of certain government and religious structures, which were completely
emptied. Under an international arrangement, productive greenhouses were left
to assist the Palestinian economy but these were destroyed within hours by
Palestinian looters. Following the withdrawal, many of the former
synagogues were torched and destroyed by Palestinians.
Recommendation
The modern proliferation of international courts and
tribunals and the increasing use of binding third party adjudication to settle
international disputes have neither achieved significant developments in
international environmental law nor advanced the state of global environmental
governance. In order to prevent further deterioration of natural resources and
achieve environmental justice, the international community needs to rethink the
existing alternatives for the improvement of the international judicial system.
The International Court of Justice (ICJ or the “World
Court”) is the principal judicial organ of the United Nations and has general
authority over any international law question, including environmental issues.
The Statute of the Court includes many conservative procedural provisions, such
as the ability of each state to determine whether it chooses to be subject to
the decisions of the Court. Each state also has the option to accept ICJ
jurisdiction based on a set of limitations and conditions. Furthermore, only
states themselves can represent their interests before the court, and non-state
actors therefore have no standing.
Despite these substantial limitations, the authority of the
ICJ is singular within the international judicial system. UN member-states have
committed to undertake to comply with the decisions of the Court, and the UN
Security Council is authorized to assist the Court by enforcing its decisions.
An important additional procedural step took place in 1993, when the Court
established a special seven-member standing Chamber for Environmental Matters
to play a more proactive role in environmental disputes. However, because the
members of the Chamber are not required to hold any particular expertise on
environmental matters, it is doubtful whether the establishment of the Chamber
will contribute as essentially as expected to the development of innovative and
meaningful environmental jurisprudence. The Chamber has yet to hear case. In
its decisions, ICJ has reaffirmed principles of international environmental
law, such as Principle 21 of the Stockholm Declaration and Principle 2 of the
Rio Declaration. However, the judgments have heen criticized by academia and
civil society as conservative and environmentally insensitive. The Court did
not adopt progressive legal interpretations that might have led to important
developments of the body of international environmental law and regulation of
critical environmental issues. The ICJ has also been criticized for its
minimalist approach to decision-making; several notable cases have been
dismissed on procedural grounds. In these cases, the dissenting opinion found
the majority to be too reductionist and posititivist in its legal method and
concluded that the ICJ had the duty to undertake a more proactive and flexible
approach, in order to make a contribution to some of the seminal principles of
the evolving corpus of international environmental law.
Dispute settlement is identified as a principle function of
the World Trade Organization (WTO).The WTO dispute settlement process begins
with consultations and proceeds with GATT conciliation or mediation services. A
parry may request that the dispute be heard by a panel, which receives
submissions from all interested parties and issues a report. The Dispute
Settlement Body (DSB) adopts the panel’s report unless there is joint
opposition to such adoption. Any of the parties to the dispute may appeal the
panel’s decision to the Appellate Body, a standing body of seven members.
Parties are required to implement the panel ruling within a “reasonable period
of time.” If ruling is not implemented, the injured party may be compensated
and retaliatory measures may be undertaken.
Several steps were undertaken during the Uruguay Round to
improve the effectiveness of the dispute settlement process. Finally, the WTO
panels are not required to take into consideration international law regimes
such as international environmental agreements and the customary international
law. WTO agreements have created a seif-contained and self-referential” regime.
Despite efforts to achieve consistency between existing multilateral
environmental agreements and the trade regime, these two have not been
adequately integrated.
The European Court of Justice (ECJ) plays an essential and
meaningful role within the European Community (EC). National courts and
governments tend to respect its decisions. While it is not a specialized
environmental court, ECJ is authorized to hear environmental cases on grounds
of non-compliance of a Member State with the European Community’s environmental
laws. ECJ also is authorized to render preliminary rulings on the
interpretation of primary or secondary European Law, including environmental
law. ECJ structure does not provide for a specialized chamber on environmental
issues. The ECJ has contributed to the protection of the natural environment in
the European region. It has accepted more than 150 environmental cases and has
rendered important environmental jurisprudence. It was the first Court to
acknowledge many principles of international environmental law such as the
precautionary principle. As national courts have funneled preliminary questions
to the ECJ, it has succeeded in clarifying environmental rules and has
influenced both the harmonization of the application of EC environmental law
and the development of national environmental law. In addition, ECJ, as a
multi-issue court, has been able to evaluate and balance environmental
protection in conjunction with other public interests such as economic
development.
The European Court of Human Rights (ECHR), established under
the auspices of the Council of Europe in 1950, is entrusted with monitoring
state-party compliance with the European Convention on Human Rights and
Fundamental Freedoms (the Rome Convention). ECHR has developed progressive
interpretations of legal documents for the protection of human rights and is a
very successful example of a regional judicial body. It has attributed
compensation to individuals suffering from environmental harm or noise
pollution through application of Article 8 (protection of private life and
family life.) However, similar “environmental” decisions have not been
forthcoming. The Court stated in the recent case that it is unable to provide
comprehensive environmental protection due to the limits of the Convention and
its additional Protocols.
These weaknesses demonstrate the inability of most existing
judicial bodies to effectively address major international environmental
issues. Most of the courts were established in order to serve a specific treaty
or international organization, and they are limited in their subject matter
jurisdiction. The courts are obliged to deal with environmental issues only in
relation to other fields of international law or while seeking to serve
different purposes, such as the promotion of free trade or the protection of
human rights.
Exactly because these bodies are not structured to judge
environmental cases, their staffs lack the expertise to do so. Non-specialized
international judges often are unable to apply the complex, vague and
incomplete norms of international environmental law. ICJ itself, in the
Gabcikovo- Nagymaros Project case admitted that the application of the
international environmental law is not an easy task.In that case, the ICJ
judges had to be educated in the environmental and scientific aspects of the
dispute before they judged the case.
Finally, in most cases, international tribunals seem to
follow a “minimalist” view, through which they focus on the specific settlement
of disputes between the parties and devote only minimal attention to the
broader policy implications of their judgments for the development of law.
Scholars have noted this approach in many of the ICJ decisions.This
“minimalist” perspective limits the broader consideration of environmental
issues associated with specific disputes.
The development of a system that connects international
courts will be required to distribute cases among the ICE and other
international judicial bodies. Provisions establishing closer cooperation
between the courts would be useful.
National courts are not adequate to fully deal with
environmental cases arising at the international level or, in some cases, even
at the national icvd. Many environmental issues are transboundary in nature and
require international institutions to manage them. In She process of
globalization of the contemporary society, more and moiré transactions]
activities affect adversely the natural environment. Current international
judicial bodies function regimes whose purposes and values are not always
aligned with that of environmental protection, Some of these bodies were
established in an environmentally innocent era, when the prelection of Use
environment was not elevated as a fundamental societal value at the
International. Their procedural rules do not accommodate needs of environmental
victims. The mlernatior courts function within the nascent frameworks of
international law and often lack compulsory junsilictiorj and enforcement
mechanisms. In response to these weaknesses, there is a public demand for the
solution of environmental crises and “recent case-law indicates a growing
willingness of States and other actors to have recourse to international
mechanisms to resolve disputes relating to natural resources and the
environment. Although many proposals have been presented existing bodies, none
of this is sufficient on its own. An international environmental court
necessary. The academic community and the framers of the court should study carefully
UK examples of current international.
Conclusion
The Palestinian leadership “maintained” that the synagogues were “symbols of Israeli occupation.” Kofi Annan, the Secretary-General of the United Nations at the time, said the Palestinian Authority had a “moral responsibility to protect the synagogues as places with religious significance. Some believe that settlements need not necessarily be dismantled and evacuated, even if Israel withdraws from the territory where they stand, as they can remain under Palestinian rule. These ideas have been expressed both by left-wing Israelis, and by Palestinians who advocate the two-state solution, and by extreme Israeli right-wingers and settlers’ who object to any dismantling and claim links to the land than are stronger than the political boundaries of the state of Israel. The Israeli government has oftern threatened to dismantle so-called outposts. Some have actually been dismantled, occasionally with use of force; this led to settler violence.
Writer: Shahrima Mitu
LL.B(Hon’s), LL.M
Green University of Bangladesh
BLEAC 