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Permanent Court of Arbitration – Composition, functions, and members – Difference in PCA, ICJ & ICC

Permanent Court of Arbitration – Composition, functions, and members – Difference in PCA, ICJ & ICC

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  • GS 2 || International Relations || Global Justice || International Court of Justice

What is a Permanent Court of Arbitration?

  • The Permanent Court of Arbitration (PCA) is an intergovernmental organization located in The Hague, Netherlands.
  • The PCA is the oldest institution for international dispute resolutions.
  • It was established by the Convention for the Pacific Settlement of International Disputes in 1899

Purpose

  • It is an intergovernmental organization dedicated to serve the international community in the field of dispute resolution and to facilitate arbitration and other forms of dispute resolution between States.
  • It acts as an Arbitration tribunal.

Structure

  • The organization is not a United Nations agency, but the PCA is an official United Nations Observer.
  • The PCA is constituted of 122 states.
  • Three-part organization
    • Administrative Council – to oversee its policies and budgets
    • Members of the Court – a panel of independent potential arbitrators, and
    • International Bureau –  Secretariat, headed by the Secretary-General.

What kind of cases are resolved in PCA?

  • First permanent intergovernmental organization to provide arbitration.
  • The cases span a range of legal issues involving territorial and maritime boundaries, sovereignty, human rights, international investment, and international and regional trade.
  • It is not a court in the traditional sense but provides services of arbitral tribunal to resolve disputes that arise out of international agreements between member states, international organizations, or private parties.

Jurisdiction of PCA

  • Rulings are binding on the parties.
  • But the PCA has no powers to enforce the rulings.

Members

  • No sitting judges for the organization. Parties select their arbitrators
  • India is a member of PCA. India ratified the 1899 convention in 1950.

Important cases

  • Enrica Lexie case– A dispute about a shooting by two Italian marines off the western coast of India. The Tribunal ruled Italy to compensate India.
  • The Bangladesh v. India (Bay of Bengal Maritime Boundary) case – tribunal awarded Bangladesh 19,467 sq. km of the 25,602 sq. km sea area of the Bay of Bengal. India accepted the terms.
  • The recent Cairn Plc case and Vodafone Plc case – India lost both the cases and asked to pay compensation.

ICJ (International Court of Justice)

  • The International Court of Justice, sometimes known as the World Court is one of the six principal organs of the United Nations (UN).
  • It settles disputes between states following international law and gives advisory opinions on international legal issues.
  • The ICJ is the only international court that adjudicates general disputes between countries, with its rulings and opinions serving as primary sources of international law.
  • Established under UN Charter 1945 (which also established UNSC) to act as a principal Judicial organ of UN

Head Quarters  

  • Hague, The Netherland (Only principal UN organ not located in New York)

Membership

  • Members of UN automatically becomes the member of ICJ.
  • To get elected candidate has to get absolute majority in UNGA and UNSC
  • The ICJ is a panel of 15 judges elected by the General Assembly and Security Council for nine-year terms.
  • 5 Judges are elected for 3 years once.
  • No two Judges can be of the same nationality
  • Members can be re-elected.

Qualifications of ICJ judges

  • A judge should have a high moral character.
  • A judge should fit the qualifications of appointment of the highest judicial officers as prescribed by their respective states or.
  • A judge should be a jurisconsult of recognized competence in international law.

The 15 judges of the Court are distributed as per the regions

  • Three from Africa.
  • Two from Latin America and the Caribbean.
  • Three from Asia.
  • Five from Western Europe and other states.
  • Two from Eastern Europe.

India a member or not

  • India is a member of the UN so India is a member of ICJ also.
  • Indian Judge Dalveer Bhandari was re-elected in 2018.

Jurisdiction

  • ICJ Settles legal disputes between Nations only. ICJ settles disputes on issues of Sovereignty, trade, treaty violations, and interpretations, etc.
  • Once the country accepts UN intervention then the judgement is binding.
  • Judgments given in contentious cases between states are also binding
  • Court also gives advisory opinions to the Council, the General Assembly, and other authorized bodies on legal questions referred to it by these entities.

Important cases

  • The Kulbhushan Jadhav case
    • India filed a complaint with the International Court of Justice (ICJ) against Pakistan for denying India consular access to Jadhav in violation of the Vienna Convention.
    • The International Court of Justice has ordered Pakistan to grant access and review Kulbhushan Jadhav’s sentence.
  • The Right of Passage over Indian Territory (Portugal v. India)
    • It was decided in 1954. The right of passage was granted to the Portuguese territories of Dadra and Nagar Haveli at the time, but not to armed forces, armed police, weapons, or ammunition.
  • In 1971, India said that the Council of the International Civil Aviation Organization (ICAO) had no jurisdiction over a complaint filed by Pakistan.
    • ICJ held that ICAO is indeed competent to entertain the complaint made to it by Pakistan.
  • In 1999, Pakistan entered into a dispute on the destruction of a Pakistani aircraft by India 1999. Pakistan said that the ICJ had jurisdiction in this issue.
    • ICJ concluded that it had no jurisdiction to entertain the application filed by Pakistan.

Effectiveness of ICJ

  • The International Court of Justice has a privileged institutional status as well as procedural instruments whose potential is often overlooked.
  • The International Court of Justice is an important part of the Charter’s machinery for peaceful conflict resolution as well as the overall framework for maintaining international peace and security that it developed.
  • Its decisions had also shed light on the functioning and duties of the Organization’s principal organs, as well as the limits of those functions, within the institution.
  • It has no jurisdiction to try individuals accused of war crimes or crimes against humanity. As it is not a criminal court,it does not have a prosecutor able to initiate proceedings.

ICC (International Criminal Court)

  • The International Criminal is an intergovernmental organization and international tribunal that sits in The Hague, Netherlands.
  • The ICC is the first and only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.
  • Setup under Rome Statute in 1998.
  • Observer Status in UN

Jurisdiction

  • The ICC lacks universal territorial jurisdiction, and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the United Nations Security Council.
  • The cooperation of non-party states is voluntary.
  • If the case is referred by UNSC then the judgement is binding on all UN members

Structure

  • The ICC has four principal organs
    • the Presidency,
    • the Judicial Divisions,
    • the Office of the Prosecutor and
    • the Registry
  • The President is the most senior judge chosen by his or her peers in the Judicial Division, which hears cases before the Court.

Prosecution

  • So far, 45 individuals have been indicted in the ICC, including Ugandan rebel leader Joseph Kony, former President Omar al-Bashir of Sudan, President Uhuru Kenyatta of Kenya, Libyan revolutionary Muammar Gaddafi, President Laurent Gbagbo of Ivory Coast, and former Vice President Jean-Pierre Bemba of the Democratic Republic of the Congo.
  • The ICC has faced several criticisms from states and society, including objections about its jurisdiction, accusations of bias, questioning of the fairness of its case selection and trial procedures, as well as doubts about its effectiveness.

Members

  • 18 judges elected among member countries.
  • States which become party to the Rome Statute become members of the ICC, serving on the Assembly of States Parties, which administers the court.
  • India is not a signatory to Rome Statute.

Rome Statute

  • A multilateral treaty that serves as the court’s foundational and governing document.
  • There are 123 ICC member states; 42 states have neither signed nor become parties to the Rome Statute.

Way forward

  • States should strongly promote ICC collaboration and help human rights defenders who are trying to bring international justice and the ICC’s mandate to fruition.
  • To improve its reputation, the court should expand its jurisdiction by including more permanent members of the United Nations and improving its inquiries and prosecutions.
  • The ICC’s position is critical because international justice can help post-conflict societies achieve long-term peace, stability, and equitable growth.
  • Having said that, it’s also important to note that the ICC uses seminars and conferences around the world to promote understanding and cooperation in all regions.

References