ROLE OF INTERNATIONAL COURT OF JUSTICE IN

INTERNATIONAL ISSUES

Seminar Work
Submitted to Rajiv Gandhi National University of Law, Punjab in Partial Completion
of the Requirements for Paper-I (Law and Justice in Globalised World) of the LL.M.,
Second Semester

Supervised By: Submitted By:

Dr. Sukhvinder Virk Hemavathi S Shekhar
Roll No. : 16510
Ll.M., Second Semester

Rajiv Gandhi National University of Law, Punjab

Patiala -147006
 TABLE OF CONTENTS

1. INTRODUCTION.................................................................................................... 3

2. HISTORICAL DEVELOPMENT .......................................................................... 4

3. JURISDICTION OF THE COURT ....................................................................... 7

3.1 Types of Jurisdiction ............................................................................................. 7

3.2 Mainline and Incidental jurisdiction.................................................................... 7

3.3 Jurisdiction Rationae Personae ............................................................................ 7

3.4 Basis for Jurisdiction ............................................................................................. 8

3.4.1 Special Agreement .............................................................................................. 9

3.4.2 Jurisdictional Clause .......................................................................................... 9

3.4.3 Declarations made under Article 36(2) of the Statute ..................................... 9

3.4.4 The Doctrine of Forum Prorogatum ............................................................... 10

4. DECISIONS BY ICJ ON CERTAIN ISSUES .................................................... 11

4.1 CORFU CHANNEL CASE; UNITED KINGDOM v. ALBANIA( 1946) ...... 11

4.2 NOTTEBOHM CASE ; LIECHTENSTEIN V. GUATEMALA (1955) ......... 14

4.3 CAMEROON V. NIGERIA: EQUATORIAL GUINEA INTERVENING

(2002) ....................................................................................................................... 16

4.4 THE LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS:

ADVISORY OPINION OF 8 JULY 1996 ............................................................ 18

5. CONCLUSION ...................................................................................................... 20

BIBLIOGRAPHY ii

i
 1. INTRODUCTION

The world has changed dramatically and in terms of historical development it can
surely be said that we are witnessing a new era. These changes are equivalent to those
that led the international community to establish the League of Nations in 1919 and
the United Nations (UN) in 1945, giving rise to a number of questions regarding the
effect of these changes upon the structure of the international community. Because the
UN enjoys a central position in the international forum, and because it is considered
to be the only universal organisation, it is natural that many of these questions should
concern the future of the international legal order in terms of the expected role of the
UN (for example, its constitutional structure, the new role of its organs, the balance of
power in the work of these organs, and the relationship between them)

One of the purposes of the United Nations is to bring about by peaceful means, and in
conformity with the principles of justice and international law, adjustment or
settlement of international disputes or situations which might lead to a breach of the
peace. In order to achieve the above purpose, it was essential to establish a judicial
arm of the organization. It was therefore decided to establish a court named the
International Court of Justice. The International Court of Justice (ICJ) was established
in 1945 as the successor to the Permanent Court of International Justice.

According to the UN Charter, the International Court of Justice (ICJ) is one of the
principal organs of the UN. It therefore seems acceptable that international efforts
directed towards the development and improvement of the UN to cope with the new
challenges should touch upon the position of the ICJ and its role. The position of the
ICJ as the principal judicial organ of the UN may appear to be a recent phenomenon
in the history of international organisations and international adjudication. However,
the status of the ICJ was a product of developments that took place over centuries in
the arena of international organisations and international adjudication.

1
2. HISTORICAL DEVELOPMENT

The development of international relations on the one hand, and the disaster of the
Second World War on the other hand, revealed to the world the necessity and
expediency of creating several permanent international institutions to enable states to
co-operate. There was a call for the establishment of an international organisation for
the maintenance of international peace and security among the Allied powers
during the Second World War. The establishment of the UN and its specialised
agencies was a logical consequence of this movement. During the Second World War,
the Allied powers made some suggestions about establishing a new world
organisation after the end of the war to play a leading role in maintaining international
peace and security. These bore fruit in the adoption of the UN Charter, which was
signed on 26 June 1945. With regard to the ICJ, there was no reference to it during the
first stages of the travaux preparatory.1 The idea of establishing an international court
appeared for the first time in the report of the Informal Inter-Allied Committee on the
Future of the Permanent Court of International Justice, which convened between 1943
and 1944. 2Two questions were considered by this Committee: first, whether to keep
the PCIJ with some modification to its Statute or to establish a new court by means of
a new Statute; second, whether this court would be institutionally integrated into the
new organisation. The above Committee did not deal with the first question because it
concluded that reference to the future court in this report should be regarded as
applicable whether that court be the Permanent Court of International Justice or a
newly-created body. With regard to the second question, the Committee found that it
was not desirable to connect the court with a future international organisation. In its
opinion, the PCIJ had suffered from its quasi-organic connection with the League, i
which resulted in its prestige being dependent upon the varying fortunes of the
League. The Committee also noted that this organic connection was undoubtedly
responsible for the unwillingness of some states to become parties to the PCIJs
Statute. Moreover, it was observed that any general international organisation would
in its early stages be of a tentative character and might undergo changes as the result
of experience. Therefore, it was desirable for the court to be on a permanent basis and

1
Neither the Moscow Declaration nor the Tehran Conference resulted in any reference to
the Court.
2
Hudson, M., The Succession of the International Court of Justice to the Permanent Court
of International Justice, AJIL, 51, 1957, p. 570.

2
not to be liable to be affected by changes that the organisation might undergo. Finally,
it was considered that such an organic connection between the court and a general
international organisation would not function satisfactorily unless the membership of
the two institutions was entirely, or at any rate practically, identical.
Although the Dumbarton Oaks proposal of 1944 did not deal with the question of
whether to keep the PCIJ or to establish a new court, it embodied the court within the
principal organs of the organisation. Chapter VII stated that the court should
constitute the principal judicial organ of the organisation. It also stated that this court
should be constituted by and function in accordance with a Statute that should be
annexed to and be a part of the Charter of the organisation. Furthermore, it pointed
out that the membership should be identical in both the court and the general
organisation.3
At the San Francisco Conference in 1945 there was a disagreement among the
participants regarding the question of whether to keep the PCIJ or to establish a new
court. Two different views were expressed.4 Some participants were in favour of
keeping the PCIJ and introducing some amendments to its Statute corresponding with
the new needs of the replacement of the League of Nations by the UN. This view was
based on the fact that there were in existence several hundred international treaties
that contain the so-called compromissory clause providing that in the event of dispute
the PCIJ should have the power to interpret the treaty, and that these treaties, despite
the war, would probably continue in force. Conversely, it was noted that, if there was
an intention to establish a court as part of the post-war organisation, it would be
technically easier to adopt a new court rather than revive the PCIJ. The latter view
was upheld for several reasons. First, it was noted that, if the PCIJ were to continue,
amendments in its Statute would be required as a result of the discontinuance of the
League of Nations. This was legally impossible in the light of the absence of any
provision for revision in the Statute of the PCIJ, and in the light of the absence of
some parties to the Statute - the Axis states - which were not represented at the UN
travaux preparatoires. Therefore, it was impossible to introduce any amendments
because the voting requirements could not be fulfilled. Second, it was impossible to
elect new judges because this election could be conducted only by the Assembly and

3
Hudson, M., The Twenty-Third Year of the Permanent Court of International Justice, and its
Future, AJIL, 39, 1945, p. 3;
4
Hilderbrand, R., Dumbarton Oaks. The Origins o f the United Nations and the Search for Post-War
Security, 1990, pp. 116-17.

3
the Council of the League of Nations, which was on the verge of collapse. Finally,
some states that participated in the travaux preparatoires, such as the Soviet Union,
were not parties to the PCIJs Statute. In the light of the above, the First Committee of
the Fourth Commission of the San Francisco Conference decided, for the first time, to
propose the creation of a new court.With regard to the position of the new court
within the new organisation, the Rapporteur of Committee IV/I noted that the new
international court should play an important role in the new organisation. The
Rapporteur emphasised that the court had to be one of the principal organs and its
Statute therefore should be a part of the Charter. It was also stressed that the court was
not established upon any different basis than that of the General Assembly (GA), the
Security Council (SC), and other organs of the organisation. The San Francisco
Conference therefore decided to establish a new court which would be designated the
principal judicial organ of the UN. The Conference also decided that the Statute of
the court would be annexed to and form an integral part of the Charter. As a
consequence, the PCIJ was officially dissolved in 1946, by a resolution of the
Assembly of the League convened for the last time, and the new court, the ICJ, started
functioning on 18 April 1946.
The court was established to achieve one of the purposes of the United Nations that is
to say to adjust or settle international disputes or situations which might lead to the
breach of the peace. A question arises as to how far a court has been successful in
achieving the object? The answer will be that the Court has tried in its level best to
achieve the objects by deciding various cases placed before it regardless of various
draw backs it is facing since its inception such as the issue of jurisdiction etc.

4
3. JURISDICTION OF THE COURT

3.1 Types of Jurisdiction

The International Court of Justice possesses two types of jurisdiction:
(i) Contentious jurisdiction
Contentious jurisdiction involves States that submit the dispute by consent to the
Court for a binding decision.
(ii) Advisory jurisdiction
Advisory jurisdiction, on the other hand, concerns questions referred to the Court by
the General Assembly, the Security Council or other organs and specialized agencies
of the United Nations. Those questions can only refer to legal questions arising within
the scope of their activities. Advisory opinions given by the International Court of
Justice are not binding.5

3.2 Mainline and Incidental jurisdiction

A distinction can be made between incidental jurisdiction and mainline jurisdiction.
Incidental jurisdiction relates to a series of miscellaneous and interlocutory matters;
for example the power of the Court to decide a dispute as to its own jurisdiction in a
given case; its general authority to control the proceedings; its ability to deal with
interim measures of protection; and the discontinuance of a case. Mainline
jurisdiction, on the other hand, concerns the power of the Court to render a binding
decision on the substance and merits of a case placed before it.

3.3 Jurisdiction Rationae Personae

The Statute of the ICJ establishes that for contentious jurisdiction, only States can be
parties before the Court (Article 34(1) of the Statute of the ICJ). However, States are
entitled to sponsor the claims of their nationals against other States. This is generally
done by way of diplomatic protection. Such protection under international law can be
exercised by the State of nationality only after the person concerned has exhausted

5
Since 1946 the Court has given 24 Advisory Opinions, concerning, inter alia, the admission to United
Nations membership, reparation for injuries suffered in the service of the United Nations, the territorial
status of South-West Africa (Namibia) and Western Sahara, judgments rendered by international
administrative tribunals, expenses of certain United Nations operations, the applicability of the United
Nations Headquarters Agreement, the status of human rights rapporteurs, and the legality of the threat
or use of nuclear weapons. See the general information concerning the International Court of Justice, of
25 October 2002 (www.icj-cij.org)

5
local/judicial remedies available in the jurisdiction of the State in which the person
has suffered the legal injury.
Exhaustion of local remedies is more than a procedural requirement. Without their
exhaustion, no remedies for legal injury can be envisaged at the international level.
On the other hand, for a foreign national to exhaust local remedies, such remedies
should not only be available, but they should also be effective and not merely notional
or illusory. However, these are matters for judgement in a given case.
The question has also been raised as to whether an individual could renounce through
a contract with a foreign government his/her right to seek diplomatic protection from
the State of his or her nationality. It is argued that the exercise of diplomatic
protection is a right of the State, and its nationals cannot therefore seek its exemption
through a contract; this can only be exercised at the discretion of the State. It is also
common nowadays for States to agree, in bilateral treaties, to submit dispute
concerning foreign investment directly to arbitration outside their jurisdiction without
requiring the investing company or individuals to exhaust local remedies. It is
understood that a State cannot sponsor the claims of its national against another State
of which he or she or the entity is also a national. Further, in the case of persons with
dual or multiple nationality, only the State with which the person enjoys a genuine
link can exercise diplomatic protection. It is also held that where the legal interests
of company are injured in a foreign jurisdiction, only the State in whose jurisdiction
the company is incorporated has the right to sponsor its claims and not the State of
nationality of the shareholders, even if they constitute a majority share holding in the
company, except where:
(1) the rights of the shareholders are directly affected;
(2) the company has ceased to exist in the country of incorporation; and
(3) The State of incorporation is the country responsible for the injury of the
company. 6

3.4 Basis for Jurisdiction

The basis for jurisdiction is the consent of the States parties to a dispute. Consent can
be expressed in one of the following ways:7

6
Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), ICJ Reports
7
Even though the engagement of jurisdiction of the Court is essentially based on the concurring wills
or consent expressed through declarations submitted by States, such an engagement is not treated in the

6
3.4.1 Special Agreement
The conclusion of a special agreement (compromis) to submit the dispute after it has
arisen. For example, a compromis was concluded between Hungary and Slovakia on 7
April 1993, by which they submitted to the Court the dispute concerning the
Gabcikovo Nagymaros Project.8

3.4.2 Jurisdictional Clause

Another way of conferring jurisdiction on the Court is through the inclusion of a
jurisdictional clause in a treaty. Generally, through this compromissory clause the
States parties agree, in advance, to submit to the Court any dispute concerning the
implementation and interpretation of the treaty.
Article 36(2) of Statute of ICJ
The jurisdiction of the Court comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force.
Several treaties contain such compromissory clauses conferring jurisdiction upon the
Court in respect of the parties to those treaties.

3.4.3 Declarations made under Article 36(2) of the Statute

The jurisdiction of the International Court of Justice also exists by virtue of
declarations made by States, that they recognize as compulsory its jurisdiction in
relation to any other State accepting the same obligation in all legal disputes
concerning the matters specified in Article 36(2) of the Statute. This method of
conferring jurisdiction on the ICJ is also known as the Optional Clause.9 The States
Parties to the present Statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement in relation to any of the States

practice of the Court as a treaty arrangement. In interpreting this engagement, the Court will look at
the underlying intention of the State making the declaration, the declaration itself being the expression
of a unilateral act of policy to accept the jurisdiction of the Court for disputes coming within its scope
(Rosenne S, 1997 p. 812).
8
The dispute concerned the construction and operation of the Gabcikovo-Nagyamaros Barrage system.
See Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports, 1997, p. 7.
9
States enjoy wide liberty in formulating, limiting, modifying and terminating their declarations under
Article 36(2), Fisheries Jurisdiction Case (Spain v. Canada), ICJ Reports 1998, paras. 44, 52 and 54.
See also Phosphates in Morocco judgment, 1938, PCIJ Series A/B No. 74, p. 23 (the jurisdiction exists
only in the limits within which it has been given and accepted). The Anglo-Itanian Oil Co. case (United
Kingdom v. Iran), ICJ Reports 1952, p. 104. (In interpreting the intention of the parties the Court
would look to all the elements in a declaration as a unity and not seek a mere grammatical
interpretation.)

7
accepting the same obligations, the jurisdiction of the court in all legal disputes
concerning:
a) the interpretation of a treaty;
b) any question of international law;
c) the existence of any fact which, if established, would constitutea breach of an
international obligation;
d) the nature or extent of the reparation to be made for the breach of an international
obligation.

3.4.4 The Doctrine of Forum Prorogatum

In accordance with the Forum Prorogatum doctrine, the Court infers the consent of the
State, expressed in an informal and implied manner, and after the case has been
brought before it. The Court has upheld its jurisdiction even where consent has been
given after the initiation of proceedings, in an implied or informal way or by a
succession of acts.10

10
In the Mavrommatis case, the Court regarded it as immaterial that the ratification of the Treaty of
Lausanne (on the basis of which Greece, in part, invoked the Courts jurisdiction) took place after the
initiation of the proceedings. Mavrommatis case (1924), PCIJ Series A, No. 2, p. 34. Similarly, in the
Rights of Minorities of Upper Silesia the Court inferred consent from the failure of the Polish
Government to raise the question of jurisdiction in its counter-memorial, its pleading on merits, and its
statements subsequent to the filing of the counter-memorial before the League Council. PCIJ (1928)
series A/B no. 15,pp. 24-26.

8
4. DECISIONS BY ICJ ON CERTAIN ISSUES

4.1 CORFU CHANNEL CASE; UNITED KINGDOM v. ALBANIA( 1946)

FACTS:
On May 15th. 1946 the British warships passed through the Channel without the
approval of the Albanian government and were shot at. Later, on October 22nd, 1946,
a squadron of British warships (two cruisers and two destroyers), left the port of
Corfu and proceeded northward through a channel previously swept for mines in the
North Corfu Strait. Both destroyers were struck by mine and were heavily damaged.
This incident resulted also in many deaths. The two ships were mined in Albanian
territorial waters in a previously swept and check-swept channel.
After the explosions of October 22nd, the United Kingdom Government sent a note to
the Albanian Government, in which it announced its intention to sweep the Corfu
Channel shortly. The Albanian reply, which was received in London on October 31st,
stated that the Albanian Government would not give its consent to this unless the
operation in question took place outside Albanian territorial waters. Meanwhile, at
the United Kingdom Government's request, the International Central Mine Clearance
Board decided, in a resolution of November 1st, 1946, that there should be a further
sweep of the Channel, subject to Albania's consent. The United Kingdom
Government having informed the Albanian Government, in a communication of
November 10th, that the proposed sweep would take place on November 12th, the
Albanian Government replied on the 11th, protesting against this 'unilateral decision
of His Majesty's Government'. It said it did not consider it inconvenient that the
British fleet should undertake the sweeping of the channel of navigation, but added
that, before sweeping was carried out, it considered it indispensable to decide what
area of the sea should be deemed to constitute this channel, and proposed the
establishment of a Mixed Commission for the purpose.
It ended by saying that any sweeping undertaken without the consent of the Albanian
Government outside the channel thus constituted, i.e., inside Albanian territorial
waters where foreign warships have no reason to sail, could only be considered as a
deliberate violation of Albanian territory and sovereignty. After this exchange of
notes, 'Operation Retail' took place on November 12th and 13th.
One fact of particular importance is that the North Corfu Channel constitutes a
frontier between Albania and Greece, that a part of it is wholly within the territorial
9
waters of these States, and that the Strait is of special importance to Greece by reason
of the traffic to and from the port of Corfu.

ISSUES
The British government claimed the minefield which caused the explosions was laid
between May 15th, 1946, and October 22nd, 1946, by or with the approval or
knowledge of the Albanian Government. Thus Albania was responsible for the
explosions and loss of life and had to compensate the UK government.
In addition to the passage of the United Kingdom warships on October 22nd, 1946,
the second question in the Special Agreement relates to the acts of the Royal Navy in
Albanian waters on November 12th and 13th, 1946 when the British government
carried out a minesweeping operation called 'Operation Retail' without the consent of
Albania. UK held the opinion the passage on October 22nd, 1946 was innocent and
that according to rules of international law it had the right to innocent passage through
the North Corfu Channel as it is considered part of international highways and does
not need a previous approval of the territorial state.

The Albanian Government does not dispute that the North Corfu Channel is a strait in
the geographical sense; but it denies that this Channel belongs to the class of
international highways through which a right of passage exists, on the grounds that it
is only of secondary importance and not even a necessary route between two parts of
the high seas, and that it is used almost exclusively for local traffic to and from the
ports of Corfu. Thus a previous approval of the territorial state is necessary.

1) Should the North Corfu Channel as it is considered part of international highways?

2) Is Albania responsible under international law for the explosions which occurred
on the 22nd October 1946 in Albanian waters and for the damage and loss of human
life which resulted from them and is there any duty to pay compensation?'

ANALYSIS
The court analyses the geographical situation of the channel connects two parts of the
high seas and is in fact frequently being used for international navigation. Taking into
account these various considerations, the Court concludes that the North Corfu
Channel should be considered as belonging to the class of international highways
10
through which an innocent passage does not need special approval and cannot be
prohibited by a coastal State in time of peace.

The UK government claims that on October 22nd, 1946, Albania neither notified the
existence of the minefield, nor warned the British warships of the danger they were
approaching. According to the principle of state responsibility, they should have done
all necessary steps immediately to warn ships near the danger zone, more especially
those that were approaching that zone. In fact, nothing was attempted by the Albanian
authorities to prevent the disaster. These grave omissions involve the international
responsibility of Albania.
But Albania's obligation to notify shipping of the existence of mines in her waters
depends on her having obtained knowledge of that fact in sufficient time before
October 22nd; and the duty of the Albanian coastal authorities to warn the British
ships depends on the time that elapsed between the moment that these ships were
reported and the moment of the first explosion.

CONCLUSION
1) On the first question put by the Special Agreement of March 25th, 1948, the court
gives judgment that the People's Republic of Albania is responsible under
international law for the explosions which occurred on October 22nd, 1946, in
Albanian waters, and for the damage and loss of human life that resulted there from;
and Reserves for further consideration the assessment of the amount of compensation
and regulates the procedure on this subject.

2) On the second question put by the Special Agreement on the violation of state
sovereignty, the court gives judgment that the United Kingdom did not violate the
sovereignty of the People's Republic of Albania by reason of the acts of the British
Navy in Albanian waters on October 22nd, 1946; and unanimously, gives judgment
that by reason of the acts of the British Navy in Albanian waters in the course of the
Operation of November 12th and 13th, 1946, the United Kingdom violated the
sovereignty of the People's Republic of Albania, and that this declaration by the Court
constitutes in itself appropriate satisfaction.

11
4.2 NOTTEBOHM CASE ; LIECHTENSTEIN V. GUATEMALA (1955)

FACTS:
Nottebohm, a German national by birth, took up residence in Guatemala in 1905, and
also made it the centre of his business activities. He visited Germany just before the
outbreak of the Second World War, and then again in around March 1939. In October
of the same year, about a month after the war began, he went to Liechtenstein and
applied there for naturalization. This was granted to him on 13 October 1939. After
receiving the Liechtenstein passport he applied for a Guatemalan visa. When he
returned to Guatemala in 1940 the change of his nationality was registered in the
Register of Aliens. A similar amendment was also made to his identity document, and
the Civil Registry of Guatemala issued another certificate to the same effect. In 1943
he was arrested as a result of war measures and taken to the United States, where he
was interned for more than two years. After his release in 1946 he was not allowed to
return to Guatemala. He then left for Liechtenstein. In 1949, his properties in
Guatemala were confiscated. In 1951, Liechtenstein took up the matter of Nottebohm
and filed an application before the International Court of Justice against Guatemala
alleging wrongful acts and claiming restitution and compensation.

PRELIMINARY OBJECTIONS:
Guatemala objected to the jurisdiction of the Court on the ground that the declaration
it made had expired on 26 January 1952, a few weeks after the filing of the
application and long before the Court could adjudicate on the case. Guatemala
questioned the power of the Court under Article 36(6) of the Statute, arguing that it
was confined to the question of whether the dispute was within the categories
mentioned in Article 36(2) of the Statute. It urged the Court not to pronounce upon
the Declaration, which was valid only for a specified term. The Court held that it was
an international tribunal, which was pre-established by an international instrument
defining its jurisdiction and regulating its operations. It was also pointed out that it
was the principal judicial organ of the United Nations. Accordingly, in the absence of
any agreement to the contrary the Court like any other international tribunal, not being
an arbitral
tribunal constituted by a special agreement by the Parties, had the power under Article
36(6) to interpret the instruments, which govern its jurisdiction. It also held that once
12
the Court seized of the matter, it had to exercise its power, and the lapse of the
Declaration thereafter did not affect the jurisdiction of the Court. The Court
unanimously, therefore, rejected the preliminary objection by an order issued on 18
November 1953.

ISSUES
On the merits of the case, Liechtenstein claimed in its application restitution and
compensation on the ground that Guatemala had acted towards Nottebohm, a citizen
of Liechtenstein, in a manner contrary to international law. Guatemala, on the other
hand, argued that Liechtensteins claim was inadmissible. While it relied on several
grounds for this purpose, a primary ground on which it sought to oppose the claim of
Liechtenstein concerned the nationality of Nottebohm, on whose behalf Liechtenstein
had approached the Court. The main issue in this case therefore revolved around the
alleged irregularity of Nottebohms naturalization in Liechtenstein or Nottebohms
Liechtenstein nationality.

CONCLUSION
The Court accordingly confined its examination to whether the naturalization
conferred on Nottebohm could be legally upheld as a basis for the proceedings before
the Court. The Court did not question the right of Liechtenstein to grant its nationality
to any person according to its laws. It was mainly concerned with the legal right of
that State at the international level to provide diplomatic protection in respect of every
person claimed as its nationals against another State.
The central point that the Court stressed in this case was that, nationality is a legal
bond having as its basis a social factor of attachment, a genuine connection of
existence, interests and sentiments. The Court then found, on the basis of the facts of
the case, that Nottebohm did not have a bond of attachment or a genuine link with
Liechtenstein. It was also of the opinion that Nottebohm continued to have a close
connection with Guatemala and that this was not affected by his naturalization in
Liechtenstein. For this reason, the Court came to the conclusion by 11 votes to 3 that
Guatemala was under no obligation to recognize the nationality accorded by
Liechtenstein, and hence that Liechtenstein did not have the right to extend its
diplomatic protection to Nottebohm against Guatemala.

13
4.3 CAMEROON V. NIGERIA: EQUATORIAL GUINEA INTERVENING
(2002)

FACTS
Cameroon and Nigeria had a long-standing dispute regarding the boundary between
the two countries as set by the Colonial powers through various treaties. The dispute
was over the boundary in lake Chad and the Bakassi Peninsula. This disputed region
did not come into contest until 1994 when Nigeria had begun occupying various parts
of the region. The government of Cameroon filed the case in the ICJ to try and
further delineate the maritime boundary that was set forth in 197511.
Nigeria then filed with the ICJ arguments over jurisdiction that was based on the state
sovereignty of Nigeria and freeing it from interference. Where the ICJ then turned
was back to the various treaties between the former colonizers that set the
boundaries12.
Because of the muddles history and often changing treaties it was difficult to grasp
entirely the broad scope of the how the boundary was first established. Both countries
wanted control over the disputed region due to its oil rich mineral content,
and who ever had control of it also was able to use its maritime control. Oil was what
made this into a much more complex and difficult case involving the boundary. The
court then rejected Cameroons claims of state responsibility and Nigerias. Thus why
the case reverted back to the 1919 Franco-British declaration (Milner-Simon
Declaration3).
Importance
Much of this case shows the current situation in former colonies around the world. As
nations struggle to grad natural resources and other pieces of land, they often run into
a complex mire of issues. Since many of the boundaries were set prior the current
governments existence, and by foreign colonizers, it tends to exacerbate the problems.
1. This case is a new beginning to long-standing boundary disputes since it used
circumstantial and complex evidence to make claims of sovereignty.
2. It also disallows countries to seek compensation for other countries
destruction and occupation of land during disputes.

11
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial
Guinea Intervening) Pieter H. F. Bekker The American Journal of International Law, Vol. 97, No. 2.
(Apr., 2003), pp. 387-398.
12
Ibid

14
Decisions and Reasoning
1. How to delineate the boundaries through the complex mire of Treaties, ICJ chose
the 1919 treaty
2. The Bakassi region was part of the Cameroon British protectorate as determined
by the United Nations until 1961.
3. The court denied the existence of a precedence that allowed Nigeria to claim
Bakassi since Cameroon had not been administrating it while Nigeria had.
4. The maritime boundary was set using the 1975 treaty between the two and the
commonly accepted boundary between the two that had been used internationally.

CONCLUSION
This case is extremely complex in nature and uses a wholly different route to
determination than most ICJ cases. It relied on various evidence that was extremely
finite and often in dispute due to the complexity of the treaties involved. As well it set
the precedence for non-compensation during border disputes. The final thing the case
opened up was the non removal of Nigerian citizens from Cameroon land, thus
leaving them locked in place and with Cameroon now responsible for their
administration.

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4.4 THE LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS:
ADVISORY OPINION OF 8 JULY 1996

FACTS
The advisory opinion given by the ICJ was originally brought by the U.N. seeking to
come to terms with the threats and significance of using nuclear weapons. The court
was then charged to find some ground on which nuclear weapons were to be used as
either a threat or in practice. The advisory opinion was sought by the World Health
Organization (WHO) and by using the general assembly power, the U.N. then decided
to pass the case to the ICJ. This was to be a means to discern the implication of
nuclear weapons with the changing of the world scheme and how the interplay of
international law was concerned.

IMPORTANCE
Where this advisory opinion comes into significant play is in the international
discourse of threat deterrence and nuclear weapons. By posing the question to the ICJ,
the WHO and the U.N. would then be able to take an official stance on the use of
nuclear opinions. What the advisory opinion was really looking at was the
proliferation of nuclear weapons. When that is coupled with the pervasive threat
structure that had not been entirely disassembled with the end of the cold war. In
addition any banning of the threat or use would automatically escalate states to having
to use the conventional war option.
1. Can Nuclear weapons be used as both a threat, and as a credible use of
military force?
2. What, if any would be the repercussion for having, using, or threatening with
nuclear weapons?

DECISIONS AND REASONING

1. The ICJ has a clear jurisdiction under the U.N. charter, it was charged by the U.N.
to render an advisory opinion13.
2. The legal question did not enter; previous precedent addressed it14.

13
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950, p. 71
14
Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15

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3. The genocide question can be wholly applied to this issue, this due to the nature of
the weapons and since they can be used in military applications. Unique character of
nuclear weapons does not factor as well, since any weapon can have similar
devastating effects when applied.
4. The difficulty in defines a weapon as an offensive or defensive capability means
that nuclear weapons cannot be rendered either. It is a weapon to be applied as the
situation dictates and is always permissible in self-defense.
5. Finally state sovereignty cannot be superceded, as The Hague convention, and
other law of war treaties never prevents a certain class of weapon. While customary to
not use weapons, due to the nature of weapons that can be multitude, banning the use
of nuclear weapons is not appropriate.

CONCLUSION
The 1996 judgment by the ICJ makes it perfectly permissible to use nuclear weapons
as a means to force, and threat. The special nature of nuclear weapons does not render
them into a class above and warranting their banning. As well the ICJ realizes that the
immense proliferation, and removal of means to operate in an international
environment might actually make the threat of force higher. Thus it seems most
appropriate and in line with the international situation to allow the usage of nuclear
weapons.

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5. CONCLUSION

It seems obvious that the emergence of the notion of international organisations had
an effect upon the existence of permanent international courts. As noted above, one of
the major obstacles to the creation and development of a permanent international
tribunal in the early stages was the fact that no international organisations were in
existence. The attempts at arbitration that took place prior to 1889 failed to produce a
consistent and permanent body of arbitral law because they were both irregular and
spasmodic. A step forward was taken by the conclusion of The Hague Conventions of
1899 and 1907 for the pacific settlement of international disputes and the
establishment of the PCA. Needless to say, despite the fact that the PCA is not a court
of law stricto sensu, it was a great step towards the institutionalisation of the
international tribunal and a cornerstone of the idea of a true permanent court for the
settlement of international disputes.
The court was established to achieve one of the purposes of the United Nations that is
to say to adjust or settle international disputes or situations which might lead to the
breach of the peace. In 1946, the International Court of Justice (ICJ) was designated
as the institution to play an important legal role in the resolution of border conflicts
among UN member states, and legal doctrines were established as prerequisites in
determining the relative merits of claims and their final disposition. Since its
establishment, the ICJ has become the principal judicial organ of the UN entrusted
with the resolution of legal disputes between sovereign states. The court consists of
fifteen judges elected by the UN General Assembly and confirmed by the Security
Council.
A question arises as to how far a court has been successful in achieving the object?
The answer will be that the Court has tried in its level best to achieve the objects by
deciding various cases placed before it regardless of various draw backs it is facing
since its inception such as the issue of jurisdiction etc.It is recommended that the
Court should be given full power in the issue of jurisdiction concerning disputes
between nations, individuals and International Organizations in order to enable the
Court to play major roles in resolving international conflicts and disputes.

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