Writting Sample PIL-libre

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Md Mustakimur Rahman

Nottingham Trent University

LLM in Public International Law

Module: PUBLIC INTERNATIONAL & HUMANITARIAN LAW

Critically assess the role of the International Court of Justice in settling disputes between

States involving the threat or use of force.


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Abstract: ICJ is an integral part and principle judicial organ of the UN therefore it plays vital role to

settle down international disputes concerning use of force. There is no automatic jurisdiction to hear

any case brought before the court but the court does work with consent of states. The court plays even

in the time of use forces and after the incident. The court gives decision and advisory opinion which is

depend of the situation of the incident. States are not bound to follow but to maintain peace states

should follow the decisions and opinion of the court.

Jurisdiction of the International Court of Justice (ICJ):

The State sovereignty doctrine prevents the ICJ to have compulsory jurisdiction;

therefore, ICJ has no automatic jurisdiction to hear cases brought against the States. Article

1(1) of the UN Charter provides the main purpose of the UN, which is To maintain

international peace and security, and to that end: to take effective collective measures for the

prevention and removal of threats to the peace, and for the suppression of acts of aggression

(..);1. This purpose can solve through Article 2(3) of the UN Charter which affirms All

Members shall settle their international disputes by peaceful means in such a manner that

international peace and security ()2. Article 2(4) is prohibition of use of force in

International relation but there are 2 exceptions in case of use of force which are: Collective

security (Article 39) and self-defence (Article 51)3. Article 36 of the Statute of the ICJ

provides jurisdiction of the court where court can deal with cases, which the parties refer to

the court4.

The ICJscontribution in disputes involving use of force or threat:

1Charter of the United Nations, June 26, 19452Ibid3

Dinstein, 2005, p 1034Statute of the International Court of Justice


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The court plays a vital role in maintaining international peace and security various ways5: by

settling dispute, by developing rules of international law and dispute concerning use of

force where the dispute is not only threatened, but it is also a breach of international

obligations6. In these particular cases, maintaining peace is a direct contribution from the

court and indirectly it will settle disputes and will develop international law.

Article 2(4) of the UN Charter prohibits any threat or use of force by one state against

another state in any unlawful manner, which will be inconsistent with the UN Charter. On

the other hand, Article 51 of the Charter provides that States can use forces against other

states for self-defence purposes. If any state use forces unlawfully against another, then it

will be a matter of dispute, which may be dealt by the ICJ. Although, there is no specific

definition of use of force in the UN Charter; in general, we can presume that the use of

force means some kind of an armed force by the state to coerce with another state7. The

dispute of use of force between states is an old and ongoing issue around the world, though

the first case involving use of force brought before the ICJ was Corfu Channel Case8 (UK v

Albania),but it was not related to the law on use of force9. However, the ICJ had opportunity

to hear the first case (Nicaragua case10) involving use of force. In this case, there were few

arguments by USA about court jurisdiction where USA argued that the claim involving use

for force brought by Nicaragua is breach of Charter; therefore, it is the matter of Security

Council and not ICJ11. The court replied that there is no doctrine of separation of power,

which can prevent the court from hearing any case which is dealt by the Security Council 12.

In the judgment of the case, the court founded that the uses of force was indirect which was

5Akande, 2011, p 266Ibid7Bilder, 1991, p38Corfu channel case I.C.J. Reports 1949, p. 244; General List No. 19 Akande, 2011, p 710Nicaragua case I.C.J. Reports 1986, p. 14; General List No. 7011

Akande, 2011, p 1512Ibid


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amount of breach the Article 2(4) of the UN Charter13. The court also considered that US

government has an obligation under Article 3 of the Geneva Convention which is not to

encourage persons or groups engaged in the conflict in Nicaragua14.

Since Nicaragua, the court has been asked to deal 26 cases involving use of force and 2

advisory opinions15.This case also inspired the other states to bring their cases involving use

of force before the ICJ. One of the successful claims wasAerial incident16case brought by Iran

against USA in 1988. USA paid the compensation without acknowledges the liability17. The

oil platform18 case was also argued about jurisdiction about the ICJ by USA under Amity

Treaty 1955. USA argued that Amity Treaty does not cover use of force; therefore, ICJ does

not have jurisdiction to hear this case. However, the court interpreted the treaty and said

that any action is incompatible with the treaty is a violation of the treaty and if the violation

occurs through use of force then court can have jurisdiction to hear the case involving

breach of international obligations. Moreover, Article 1 of the Amity Treaty says that both

Iran and USA will keep the peace between states which was violated by USA; therefore,

court have jurisdiction19. In this case, the court had technical role to deal the matter of use of

force. In the case of Cameroon v Nigeria20, the court found that Nigeria violated Article 2(4) of

the Charter; therefore, Nigeria is responsible.

ICJ and its power to grant provisional measures in the matter of use of force:

13Ibid14Zegveld, 2003, p 815 Akande, 2011, p 716Aerial Incident of 3 July 198817Gray, 2003, p 618Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I. C. J. Reports 200319

Ibid20Cameroon v. Nigeria, ICJ Reports (2002), at para. 310.


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Article 41 of the Statue21 of the ICJ has given jurisdiction to the ICJ to grant provisional

measure if the court believes that it is required for preventing serious humanitarian

intervention. Since 1946 until 2010, there are 28 cases where provisional measures were

requested, in which the court had granted 14, rejected 13 and withdrew 1 case22. In the

Frontier dispute23, both Mali and Burkina requested for measure and court accepted it to

prevent further dispute. The court plays a very important role through granting provisional

measures in the time of disputes of use of force and threat. A most recent example can be

given where provisional measures was granted in the armed conflicted context and it was

important to grant for protecting people from further harm. This court order was issued in

2008 in the armed conflict between Russia and Georgia24. Though this is a power by the

court to grant provisional measure but there are some requirements have to be met to

request provisional measures25: the court has to have prima facie jurisdiction, the order is

necessary and there must have urgency26.

One of the main problems to refuse provisional measure is where the court has no prima

facie jurisdiction and this can happen through reservation or any treaty between states. In

Bosnia v Herzegovina genocide case of legality of use of force, the court refused to grant

provisional measure because USA had reservation on the Genocide Convention27. This

reservation has been creating problems for hearing cases before the court, because of lack of

prima facie jurisdiction. It does mean that the court will have no roll without prima facie

jurisdiction. This question has arisen in some debates between judges and academics. Some

judges argue that in cases involving use of force requests for provisional measure should not

21The ICJ statute22Gentian, 2010, p 1223Frontier Dispute(Provisional Measures), ICJ Reports, (1986) 3.24Ibid25Ibid26

Ibid27Gray, 2003, p 12


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be refused because of prima facie jurisdiction28. As we know that the ICJ is the supreme

judicial organ of the UN; therefore, ICJ has some special obligations to maintain

international peace and security. Hence court should have proprio motu which means in

some cases (cases concerning legality of use of force) court should have its own initiative to

maintain peace and security29. When Yugoslavia asked for Order against 10 NATO states to

cease their force from Kosovo, Judge Shi said in her dissenting opinion that court should

have its own initiative to prevent the dispute and not to extend it further 30. In the case of

Lockerbie,judge Weeramantry said in his dissenting opinion that if international law is to

grow and serve the cause of peace, the Court cannot avoid its responsibility in this regard31.

In my personal opinion that I will agree with reservation mechanism and states may ignore

the jurisdiction of court but how states will ignore the responsibility of the damages through

the use of force? The State responsibility was ensured under Article 1 of the International

Law Commission 2001, which is Every Internationally wrongful act of a State entails the

International responsibility of that State32. The essence of State responsibility is to make

reparation for wrongful act done by the State, which is one of the principles of International

law. Article 31(1) of the International Law Commission 2001 provides that it is a State

responsibility to make full reparation for the injury for the wrongful act33. If the court and

security council can work in parallel in some cases except chapter VII of the UN charter than

ICJ should have power to take its own initiatives to control the international peace and

security from threat or use of force.

28Ibid, p 2329Ibid30Ibid31Ibid32

Dinstein, 2005, p 10433Ibid


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Use of force and self-defence:

Self-defence is an exception of Article 2(4) where States can use forces. In 1996, the ICJ stated

in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons that the

Charter do not specified any weapon to use in self-defence. It neither expressly prohibits nor

agreed to use any force including nuclear weapon34. This was a dispute involving use of

force and the ICJ played a vital role in respect of law and made a legal solution. In 2004, ICJ

gave another Advisory Opinion on dispute of a wall in the Palestinianterritory. ICJ stated that

self-defence is inherent right but Judge Higgins stated in her opinion that nothing is written

in the Article 51 where self-defence is only available when an armed attack is made by a

state35. Though the Charter just stated that States can use any force for self-defence but it did

not mention any specific rules as to how and when States can use any force. As we have seen

in the 1996 Advisory Opinion where court cited that the States can use force for self-defence

but with conditions of necessity and proportionality. The element of necessity and

proportionality is customary international law, which was reaffirmed by the ICJ in 2003 in

the Oil Platform case36. In order to give an Advisory Opinion in 2004 on the legality of Wall in

the Occupied Palestine Territory, the Court drawn a distinction between cross-border terrorism

and Occupied territories where Judge Higgins says in her opinion that self-defence is

available only when an armed attack made by a state37.

Legal gap between law and the ICJ to hear cases concerning use of force:

One of the problems is Optional clause, which will protect states from future dispute

concerning use of force38. Israel, India and El-Salvador made reservation after Nicaragua

case which excluded the use of force. This reservation creates a legal gap between law and

34Advisory Opinion 199635Dinstein, 2005, p 20436Ibid, p 20937

Dinstein, 2005, p 20438Gray, 2003, p 14


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the jurisdiction of the ICJ where the court is unable to hear cases before ICJ. In the case

Aerial incident which was between Pakistan v India and the court had to rely on reservation

so therefore court had no jurisdiction under Optional clause39. This kind of reservation is not

only excluding the jurisdiction to hear cases before ICJ but also may create further problem

of interpretation. As we can see in 1993 Greece made a reservation with different forms

words, which excludes any dispute relating to military action taken by Greece for national

defence40. A clear image can be drawn between Charter and reservation where reservation is

just a clause of the Charter and on the other hand, the main purpose of the Charter is to

maintain international peace and security. Critically reservation clause makes clash with the

main purpose of Charter; therefore, it is a question of matter in the international community

whether states want further dispute between states by preventing ICJ to hear case before it

involves the use of force or states wants to keep international peace? In the other hand what

will be court role even after reservation? Can court give any extra attention within the legal

framework of its power to settle any dispute relating use of force or threat?

ICJs limitation:

I have discussed previously, that States are not bound to accept jurisdiction of the court

under International law and UN Charter. Therefore, States using force without justifying

anything. Since 1945 the UN, Security Council, International Court of Justice (ICJ) and

recently created International Criminal Court (ICC) are working for international peace and

security but the question is how far have they achieved to fulfil their aim and where are the

gaps for further achievement? In the last 4 decades, there were so many international

disputes created involving use of force but all are not settled yet. Some states are avoiding

their responsibility for violating International peace because of loopholes of laws and even

ICJ do have jurisdiction to hear cases because of legal conflicts.

39

Aerial Incident of 10 August 1999, Pakistan/India, ICJ Reports (1999); 39 ILM (2000) 1116.

40Gray, 2003, p 14


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Conclusion:

The 21st centurys International law should be stronger where Human Rights law,

Humanitarian laws will prevail. In some cases, ICJ should have its own initiatives and those

will be compulsory for every member states of the UN. Specifically in cases of involving use

of force, court should have prima facie jurisdiction to control any international dispute and

prevent from further disputes. States reservation power makes the ICJ weak to hear case

before the court; therefore, any reservation made by States should not exceed the border line

which will prevent the ICJ to hear case before it. If the ultimate goal of UN is to International

maintain peace and security than the power of ICJ should not be narrow as it has now. It

seems that States has so many doors to run away from responsibilities where ICJ has a

narrow window with locked door.


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Bibliography

Books:

BROWNLY, I., 1963, International law and the Use of Force by States, Oxford University Press.

DINSTEIN, Y., 2005, War Aggression and Self-Defence, 4thEd, Cambridge University Press.

GRAY, C., 2008, International law and the Use of Force, 3rdEd, Oxford University Press.

ZEGVELD, L., 2003, The Accountability of Armed Opposition Groups in International law, 1stEd,

Cambridge University Press.

Journals and Articles:

AKANDE, D., 2011, The Contribution of the International Court of Justice and the Law of the Use

of Force, The European Journal of International Law, see:http://www.ejiltalk.org/the-

contribution-of-the-international-court-of-justice-and-the-law-of-the-use-of-force/[accessed

13thNovember 2012].

BIANCHI, A., 2009, The International Regulation of the Use of Force: The Politics of Interpretive

Method,Leiden Journal of International Law, Vol. 22, Issue 4, PP 651-676.

BILDER, R. B., 1991, Judicial Procedures Relating to the Use of Force, Virginia Journal of

International Law, Vol. 31, Issue 2, PP 249-289.

DAMROSCH, L.F., 2012, The Impact of the Nicaragua Case on the Court and Its Role: Harmful,

Helpful, or In Between?, Leiden Journal of International Law, Vol. 25, Issue 1, PP 135-147.

GORDON, G., 2009, Landmarks: The Oil Platforms Opinion: An Elephant in the Eye of a Needle,

Amsterdam Law Forum, North America, Available at:

http://ojs.ubvu.vu.nl/alf/article/view/70/105. [Accessed: 25th November 2012.]
http://www.ejiltalk.org/the-contribution-of-the-international-court-of-justice-and-the-law-of-the-use-of-force/http://www.ejiltalk.org/the-contribution-of-the-international-court-of-justice-and-the-law-of-the-use-of-force/http://www.ejiltalk.org/the-contribution-of-the-international-court-of-justice-and-the-law-of-the-use-of-force/http://www.ejiltalk.org/the-contribution-of-the-international-court-of-justice-and-the-law-of-the-use-of-force/http://ojs.ubvu.vu.nl/alf/article/view/70/105http://ojs.ubvu.vu.nl/alf/article/view/70/105http://ojs.ubvu.vu.nl/alf/article/view/70/105http://www.ejiltalk.org/the-contribution-of-the-international-court-of-justice-and-the-law-of-the-use-of-force/http://www.ejiltalk.org/the-contribution-of-the-international-court-of-justice-and-the-law-of-the-use-of-force/


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GRAY, C., 2003, The Use and Abuse of the International Court of Justice: Cases concerning the Use

of Force after Nicaragua, The European Journal of International Law, Vol. 14, Issue 5, PP 867

905.

HOSS, C., VILLALPNADO, S. and SIVAKUMARAN, S., 2012, International Court of Justice:

Nicaragua: 25 years later,Leiden Journal of International Law, Vol. 25, Issue No. 1, PP 131-

133.

LLAMZON, A.P., 2007, Jurisdiction and Compliance in Recent Decisions of the International

Court of Justice, European Journal of International Law, Vol. 18, Issue 5.

RUIZ, N. O., and AGUADO, E. S., 2005, Exploring the Limits of International Law relating to the

Use of Force in Self-defence, The European Journal of International Law, Vol. 16 no.3, PP 499-

524.

SIMMA, B., 1999, NATO, the UN and the Use of Force, The European Journal of International

Law, Vol. 10, PP 1-22.

SOFAER, A.D., 2004,The International Court of Justice and Armed Conflict, Northwestern

University Journal of International Human Rights, Vol.1.

TAMS, C. J., 2009, The Use of Force against Terrorists, European Journal of International Law,

Vol. 20, Issue No. 2, PP 1-34.

YUSUF, J. A. A., 2012, Symposium: The Nicaragua Case 25 Years Later, Leiden Journal of

International Law, Vol. 25, Issue 2, PP 461-470.

ZYBERI, G., 2010, Provisional Measures of the International Court of Justice in Armed Conflict

Situations, Leiden Journal of International Law, Vol.23, Issue 3, PP 571-584.

Legislations:


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UN Charter 1945

Geneva Convention 1, 1945

International Law Commission 2001

Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons , [1996] ICJ

Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory,2004

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