General Assembly or the Security Council

Certain problems, not attributable to the ICJ have however hampered the working of the ICJ. This is due to the fact that decisions given by the ICJ have to be implemented by the Security Council. Infact, a  all member nations of the UN are bound to comply with the decisions of the ICJ and the Security Council is responsible for the enforcement of the ICJ’s verdict. (Malanczuk 1997). This creates a problem when one of the respondents in a dispute case is a member of the security council. The enforcement by the Security Council is hindered by the exercise of the veto power vested with the permanent members.

Internationally, there is an increasing propensity of nations to take disputes to the ICJ, which in itself is a healthy indicator. However, the ICJ still remains a an underutilized resource for the resolution of disputes in a peaceful manner. The wealth of qualified legal experts and the cumulative experience at the disposal of the ICJ can and should be channelised to assess and deduce the jurisdiction matters more frequently to optimally employ the ICJ. The ICJ has been bestowed the status of the principle judicial arm  of the UN as per the provisions of the UN Charter and the Statute of the ICJ.

The charter of duties of the ICJ includes resolution of all disputes submitted by states in accordance with international laws, rendering legal advice on issues referred to it by the  General Assembly, The Security Council, authorized  UN agencies and specialized agencies. The jurisdiction of the court comprises all disputes submitted to it by States for settlement in accordance with international law; and additionally, it may also give advisory opinions on legal questions referred to it by the General Assembly or the Security Council or in the case of other duly authorized U.N. organs and specialized agencies. Is is necessary to have a more effective role for the ICJ  in the contex of the UN reforms to further strengthen the fundamental principles of the UN, i. e. that “all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. ”

The jurisdiction of the court should be acceptableto  all member nations of the UN without reservations, which should be withdrawn(especially of non-technical nature) either partially or completely .

The aspect of authority to the Secretary General to ask for legal advisory opinions from the ICJ should be decided upon in order to strengthen the SG’s role and of the UN. In the post- adjudicative phase, the decision of the court should be binding to all parties and duly  enforced by the Security Council. The SG and the UN should utilize their good offices to ensure that the decisions/judgement of the court is implemented .

Unfortunately, it has been the experience in the past, that non-compliance with certain judgments and orders on provisional measures rendered by the Court-both binding on the Parties and without appeal-has unfortunately occurred and may be repeated in future. This happens especially if one of the parties is a member of the Security Council or one of its strongest allies. The exercise of veto power needs to be refined and revised to ensure fair and impartial enforcement of justice.

Before invoking Article  94(2) of the Charter, it would be preferable that the SG utilizes his good office to impress upon the disputing parties regarding the binding nature of the ICJ’s judgement. Alternatively, there is a dire need to redefine the veto power vested with the members of the security council to ensure fair enforcement of the ICJ’s verdict. Conclusion However, until the time this issue is resolved, the role of the ICJ in international disputes is seriously inhibited due to this exploitation of the veto power.

Unless the judgement of the ICJ is seen and enforced as binding to all nations equally, the prestige and importance of the ICJ is severely hampered. In this case, the role of the ICJ is restricted to giving advisory opinions to the various cases referred to it by the UN and other UN affiliated organizations. It can assist the development of International laws for defining the aspects of jurisdiction, self defence , human rights and sovereeignity of nations. Besides it can also render assistance to the international law organizations related to environment, territorial disputes, environment , human rights and the like.

It must however be remembered that the enforcement in the case of all other laws and legal entities will continue to be affected in the crucial aspect of implementation and enforcement is subject to the veto power by the select nations. This ambiguity has to be removed to make the ICJ live upto the original role it has been designed for by the international community of nations. Only then will it have the faith  and trust of nations, when it is seen as a strictly apolitical, impartial, and powerful orgainsation, whose conduct and dealings cannot be subverted or undermined by certain nations.

Here, I do not mean the US alone, throughout History of the ICJ, all the five members of the Security Council have at some stage and for narrow interests exercised the veto right and scuttled the appropriate progress of justice. 

References

Arend . A. C. (1985) and A. R. Colls . ed‘The Falklands War and the Failure of the International Order The Falklands War 52,54-5 Art. 64 of the Vienna Convention on the Law of Treaties (supra note 1) and  Yearbook of the ILC (1976 H) 87. Bailey D. Sam Daws . ed. (1998)Sydney; The Procedure of the UN Security Council Clarendon Press. (Oxford1998)  437.