International Court of Justice: Jurisdiction, India's Cases

The International Court of Justice, sitting in the Peace Palace at The Hague, is the principal judicial organ of the United Nations (Article 92 of the Charter). It succeeded the Permanent Court of International Justice in 1946, and its Statute is part of the Charter, so every UN member is a party to it. Its jurisdiction, however, rests on the consent of states. This note covers its composition, contentious and advisory jurisdiction, procedure and the cases involving India.

1. Composition

Figure 1: The bench

• Election. Judges are elected by absolute majorities in both the General Assembly and the Security Council, voting independently, from candidates nominated by national groups of the Permanent Court of Arbitration; no two judges may be nationals of the same state.
• Presidency. The President and Vice-President serve three year terms; Judge Iwasawa Yuji of Japan was elected President on 3 March 2025.
• Chambers. The Court may form chambers for particular cases, such as the Gulf of Maine (1984) and Frontier Dispute (1986) chambers.
• Indian judges. Sir Benegal Narsing Rau (1952 to 1953), Nagendra Singh (1973 to 1988, President 1985 to 1988), R.S. Pathak (1989 to 1991) and Dalveer Bhandari (from 2012, re-elected in 2017)

2. Contentious Jurisdiction

Figure 2: The two kinds of jurisdiction

• Consent. The Court decides disputes between states only with their consent, given in one of the ways in Article 36; under Article 36(6), the Court itself decides any dispute about its jurisdiction.
• Optional clause, Article 36(2). States may declare that they recognise the Court's jurisdiction as compulsory, in relation to any other state accepting the same obligation, in legal disputes concerning a treaty, any question of international law, a breach of an obligation, or reparation; about seventy states have made declarations.
• Reciprocity and reservations. Declarations often contain reservations, which the other party may invoke reciprocally; in Certain Norwegian Loans (France v Norway, 1957), Norway relied on France's self-judging reservation excluding matters essentially within national jurisdiction as understood by France, and the Court declined jurisdiction.
• Forum prorogatum. Consent may be given after an application is filed, by the respondent's conduct or express acceptance, as in Corfu Channel (1948) and Djibouti v France (2008)
• Monetary Gold principle. The Court cannot decide a case where the legal interests of a third state that has not consented would form the very subject matter of the decision (Monetary Gold, 1954; East Timor, 1995)

3. Provisional Measures and Judgments

Figure 3: Conditions for provisional measures

• Recent orders. Recent orders include The Gambia v Myanmar (2020), Ukraine v Russia (March 2022, ordering suspension of military operations) and South Africa v Israel (2024, under the Genocide Convention)
• Effect of judgments. Binding only between the parties and for the particular case (Article 59); final and without appeal (Article 60); the Court may interpret a judgment on request (Article 60) or revise it on discovery of a new decisive fact, within six months of discovery and ten years of the judgment (Article 61)
• Enforcement, Article 94. Each member undertakes to comply with judgments in cases to which it is a party; if a party fails, the other may have recourse to the Security Council, which may make recommendations or decide on measures; after Nicaragua (1986), a US veto blocked Council action.

4. Advisory Jurisdiction

• Who may request. The General Assembly or Security Council on any legal question; other organs and specialised agencies, if authorised by the Assembly, on legal questions arising within the scope of their activities (Article 96)
• Discretion. The Court may decline to give an opinion, but only for compelling reasons; it declined the WHO's request on nuclear weapons (1996) for want of competence.
• Leading opinions. Reparation for Injuries (1949), Reservations to the Genocide Convention (1951), Certain Expenses (1962), Namibia (1971), Western Sahara (1975), Nuclear Weapons (1996), the Wall (2004), Kosovo (2010), Chagos (2019), the Occupied Palestinian Territory (2024) and Climate Change (2025)

5. India and the Court

Figure 4: Cases involving India

• Right of Passage (Portugal v India), 1960. Portugal had a local customary right of passage for civilians and goods to Dadra and Nagar Haveli, but not for armed forces; India had not acted contrary to its obligations (Topic 8)
• Appeal relating to the Jurisdiction of the ICAO Council (India v Pakistan), 1972. India challenged the ICAO Council's jurisdiction over Pakistan's complaint about India's overflight ban; the Court held the Council had jurisdiction.
• Aerial Incident of 10 August 1999 (Pakistan v India), 2000. No jurisdiction, because of India's Commonwealth reservation (Topic 30)
• Marshall Islands v India, 2016. The case on nuclear disarmament negotiations was dismissed because no dispute existed when the application was filed, India not having been aware of the claim.
• Jadhav (India v Pakistan), 2019. Pakistan breached Article 36 of the consular convention (Topic 37)
• India's declaration. India accepted compulsory jurisdiction by a declaration of 1974 with wide reservations, including disputes with Commonwealth states, disputes the parties agreed to settle otherwise, and disputes relating to hostilities and self-defence.

6. Frequently Asked Questions

Can an individual or a company bring a case before the ICJ?

No. Under Article 34 of the Statute, only states may be parties in contentious cases. Individuals and companies depend on their state taking up their claim through diplomatic protection.

Why did the ICJ have no jurisdiction in Pakistan v India (2000)?

Because India's optional clause declaration excluded disputes with Commonwealth states, and the other bases Pakistan relied on, including the General Act of 1928 and the Charter, did not confer jurisdiction.

Are advisory opinions of the ICJ binding?

No. They are given to the requesting organ and do not bind states, except where an instrument provides otherwise. They carry great authority as statements of the law, as with Chagos (2019) and the climate opinion (2025).

What is reciprocity under the optional clause?

A state accepting compulsory jurisdiction does so only in relation to states accepting the same obligation, so the Court's jurisdiction extends only to the common ground of the two declarations, and a respondent may rely on a reservation in the applicant's declaration, as in Norwegian Loans (1957).

7. Related Topics

• Topic 9: General Principles, Judicial Decisions, Writers and Equity. Article 59 and precedent.
• Topic 48: Peaceful Settlement of Disputes. Judicial settlement.
• Topic 56: United Nations. Principal organs.