Reforming the International Court of Justice: the Urgency for a More Advanced Scope of Jurisdiction

It can be argued that in facing the paramount problems of the twenty first century, one of the core elements of establishing a world with friendly relation among States is by the constitution of a healthy judicial field considering the fact that disputes among States are in no way can be avoided. For more than seven decades the International Court of Justice has served the world and the Member States of the United Nations in particular with judicial service as it bears the function as the principal judicial organ of the United Nations. However, by analyzing the development of international law, while the ICJ has contributed to improving the relation between States by way of providing States with the proper settlement of disputes, the current system—mostly designed at a time of different global challenges and priorities— seems to have exceeded its capacity to be nimble and responsive to the needs of today’s world. This article seeks to offer recommendations on how to optimize the Court’s function by means of reforming its contentious jurisdiction. The purpose of this article is to open more possibilities to optimize the Court, by making the Court’s jurisdiction mandatory and compulsory to all States and offer a possibility of expansion of jurisdiction as to include ratione materiae jurisdiction.

Jacovides at the International Law Weekend 2005, 8 in the speech made by Judge Shi before the Sixth Committee of the General Assembly of UN in 2004, 9 and in many writings for instance the one by Gozie Obgodo in the Annual Survey of International & Comparative Law in 2012, 10 which has inspired this article a lot.
The article will hopefully become the answer to the question of whether the Court really lived up to the hopes of the international community. While the ICJ has contributed to improving the relation between States by way of providing States with the proper settlement of disputes, the current system-mostly designed at a time of different global challenges and priorities-seems to have exceeded its capacity to be nimble and responsive to the needs of today's world. This article will discuss on the effectiveness of the Court in fulfilling its function as the principal judicial organ of UN and how the writer thinks it is most appropriate to optimize the Court's works from a jurisdictional perspective, and to subsequently reform the Court into a body whose system is fit for the purpose, opportunities, and challenges presented by this era.
Chapter B will firstly address the general concept of jurisdiction of ICJ based on literature review and precedents. There we will also firstly elaborate briefly on the types of jurisdiction may be established by the Court. In Chapter C we will elaborate the problems that the author has seen to rise in

The Importance of Jurisdiction for an International Court and Its Difference with Admissibility
First and Foremost, it is necessary to assert that the regulation of the jurisdiction is an important aspect of international law, in particular for a judicial body such as the ICJ. It is recognized that jurisdiction is the sine qua non for the exercise of judicial powers. 11 Rules of jurisdiction reflect that there are limits to a State's sovereignty in legal authority, and that in some matters or under some conditions, there are other foreign legal authorities which are themselves legitimate over such States. 12 One of the many definitions of jurisdiction that perfectly captures its importance can be found in a case before the Supreme Court of Oklahoma in 1937 in which it was upheld that, "jurisdiction is the authority by which courts and judicial officers take cognizance of and decide cases." 13 In other words, it can be concluded that in cases where a court or judicial officer is proven to have acted with the absence of certain requisite authority, any attempt to take cognizance of, and decide upon any case, will be declared as null and void.
For international courts, jurisdiction plays the role as a policy tool in the hand of States-as the courts' mandate providers-and in the hands of specific sets of disputing parties. 14 Further, jurisdiction can also be regarded as a delegated authority, which in the case of international courts, jurisdiction of the court is delegated through the constitution of such court or the umbrella-organization.
In regard to its difference with admissibility, it is indeed one of the hardest legal questions ever asked. In his book, Yuval Shany explains that jurisdictional conditions and admissibility rules are separate and meant to apply at different stages of proceedings. Applied with discipline, jurisdiction is the legal power delegated to an international court to adjudicate a dispute-if the parties fulfill the jurisdictional requirements, the court must exercise its jurisdiction unless there is a valid reason not to. Such valid reasons include admissibility rules, to be used only with discretion and exceptionally. The conceptual problems arise because discipline is often lacking. 15 In order for the ICJ to 'adjudicate' a case, the court must as a preliminary matter determine both the issues of jurisdiction as well as the issues of admissibility. Jurisdiction issues "are those which ultimately derive from whether the Court has the right and power to consider the case brought by a state," while issues of admissibility determine whether the case itself is one proper for determination when brought before the Court. Therefore, issues of jurisdiction must precede any issues of admissibility since issues of admissibility 70 Padjadjaran Journal of International Law Volume 4, Number 1, January 2020 can only be raised when the Court's jurisdiction has been settled. 16

Contentious Jurisdiction of the ICJ
The contentious jurisdiction of the Court is indicated through Article 38 of the Court's Statute in which it is stated that the function of the Court is to decide on disputes submitted to it. 17 Hence it can be inferred from such provision, that the contentious jurisdiction of the ICJ can only be invoked in cases where a genuine dispute of a legal nature can be proven to exist. 18 The Court itself had determined in its earlier cases that the existence of a "dispute" between the Parties constitutes "the primary condition for the Court to exercise its judicial function." 19 Further, quoting from the Permanent Court of International Justice ("PCIJ"), "(a)dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons." 20 The other critical basis for ICJ in exercising its jurisdiction in contentious cases is the consent of the parties. Article 36 of the Court's Statute stipulates that "(t)he 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," 21 and in the next paragraph the existence of consent is further elaborated as to be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time. 22 Series A,No. 2,p. 11. See also recently, I.C.J., Judgment, 1 April 2011, Application of the International Convention on the Elimination of All through a variety of forms, ranging from unconditional consent to consent based upon reciprocity or consent limited in time.
The consent of the Parties may be explicit or implicit and is derived from several areas, primarily i.e. (a) by special agreement; (b) by clauses in treaties or conventions; (c) by the State's acceptance of the Court's compulsory jurisdiction.

a. Special Agreement between the State Parties
The method of special agreement has its legal basis in Article 36 paragraph 1 of the Court's Statute. Such cases normally come before the Court by notification to the Registry of an agreement known as the Compromis which was concluded by the Parties especially for this purpose. 23 This method was used in the Corfu Channel case, 24 the Minquiers and Ecrehos case, 25 and in several others.

b. Treaties and Conventions
In the second half of Article 36 paragraph 1 of the Court's Statute, it is provided that the jurisdiction of the Court also comprises all matters specially provided for in treaties and conventions in force. 26 The provision seeks to render the State Parties the chance to also consent to the Court's jurisdiction in bilateral or multilateral treaties by the conclusion of ICJ's jurisdiction clauses among its means of settling disputes in such treaties. law, the existence of any fact whichif established-would constitute a breach of an international obligation, and the nature or extent of the reparation to be made for the breach of an international obligation, as provided in Article 36 paragraph 2. 30

Advisory Jurisdiction of the ICJ
Since States alone are entitled to appear before the Court, 31 public (governmental) international organizations cannot be parties to a case before it. However, a special procedure, the advisory procedure, is available to such organizations and to them alone. This procedure is available to five United Nations organs, fifteen specialized agencies and one related organization. 32 In contrary to judgments, and except in rare cases where it is expressly provided that they shall have binding force (for instance, as in the Convention on the Privileges and Immunities of the United Nations, the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, and the Headquarters Agreement between the United Nations and the United States of America), the Court's advisory opinions are not binding. The requesting organ, agency or organization remains free to decide, as it sees fit, what effect to give to these opinions. 33 This advisory procedure of the Court can also play an 'indirect' part in preventing disputes and conflicts from developing, by clarifying the legal parameters within which a problem may be resolved.

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C. PROBLEM ARISING FROM THE CURRENT SCOPE OF ICJ
This article seeks to highlight the jurisdiction of the Court particularly the contentious jurisdiction. While performing its role as the principal judicial organ of the UN, and basically the World, the author sees that the ICJ had faced certain hardships arising within the scope of its contentious jurisdiction as follows. housekeeping. To criticism of its approach, the ICJ says that the role of its Advisory Opinions is to advise organs of the United Nations and UN specialized agencies what the law is in respect of a particular problem, and so help the requester deal with the problem in the future. It is not the task of an Advisory Opinion to the ICJ to settle disputes. However, the advisory procedure provides the Court with a very real way of participating and contributing to the overall objectives of the United Nations. In addition to offering legal guidance to the requesting bodies, it can play a role in international dispute resolution. 37 Nevertheless, the statistics had shown that not so many legal questions that are 'politically controversial' submitted to the ICJ, but rather more on the housekeeping matters only. Therefore, the Court's potential to give clarification regarding certain legal parameters are not utilized to its optimal limit.

The failure of the Court's Compulsory Jurisdiction to be Compulsory
The Court provides the State Parties with a compulsory jurisdiction while the member parties to the ICJ are free to accept or reject the compulsory jurisdiction of the Court. This concept clearly undermines the authority of the Court to adjudicate relevant international issues of fact and law, as the Court will often face State Parties not recognizing its jurisdiction which will certainly refrain it from optimizing its function to settle disputes between States.
A total of 73 states have recognized the compulsory jurisdiction of the Court (with or without reservation

Novena Clementine Naomi
Reforming the International Court of Justice: Analysis on the Urgency for a More Advanced Scope of Jurisdiction Strait number shows the minimum participation of Member States to the UN in preserving the principal judicial nature of the Court. Not only that it is a number so low in comparison to the total of Member States which is 193 states, matters are further complicated by reservations to the acceptances of compulsory jurisdiction, which serve to limit their scope. 39 The reservations that have been made in declarations by states under the optional clause, restricting the jurisdiction of the ICJ, vary a great deal from state to state, and are usually an attempt to prevent the Court becoming involved in a dispute which is felt to concern vital interests. 40 Furthermore, the Court's compulsory jurisdiction gets even more ill-equipped due to the fact that four out of five permanent members of the Security Council have expressed their rejections towards such compulsory jurisdiction. By virtue of this fact, it is reasonable to be worried over the Court's prestige in the face of the international community. The ICJ as the only body with adjudication power within the UN, should have possessed a distinctive power amongst States, yet in reality it seems that the attitude of the permanent members of the Security Council-as powerful member parties-have leached off the influence of the Court and instead are now advocating the wrong campaign to encourage the melt-down of the Court's powers. In such a case, hence it is possible that somewhere in the near future this trend will end up with the Court losing its compulsory jurisdiction completely. One of the latest remarkable jurisdiction matters raised within the ICJ was Marshall Islands' legal crusade against nuclear weapons states back in 2014, which due to jurisdiction issues were mostly dead on arrival. 41 Of nine ICJ suits filed against the nuclear weapons states, six never progressed for lack of jurisdiction, and there is nothing the Court can do in its power to call for those States. Moreover, this series of proceedings have shown the other side of the compulsory jurisdiction, in which it is found out that apparently Marshall Islands did not recognize the Court's compulsory jurisdiction until one year and one day before initiating such proceedings. 42 Indeed, the ICJ Statute merely requires that State Parties to the proceedings have declarations in force on the same day. 43 However this provision resulted only in the impression that the ICJ has a weak jurisdiction which subsequently will generate a judicial system prone to "hit-n-run" litigation.

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Volume 4, Number 1, January 2020 Nevertheless, the world had become the witness of many violations to international law not getting adjudicated properly due to the mere fact that none of the Parties, not even the violated ones, submitted the matter to the ICJ or any other tribunals.
One of the recent example is the issue on United States' transfer of their embassy in Israel from Tel Aviv to Jerusalem, indicating their recognition of Jerusalem as the capital of Israel, while neglecting Palestine and the fact that Jerusalem itself is a disputed area that had since after the Arab-Israeli war of 1948 been divided along armistice lines drawn between Israel and Jordan. 47 The United States' conduct is clearly in contradiction with the principles and policies of the United Nations. It also undermines the US Administration's self-declared aim to broker lasting peace between Israelis and Palestinians. In this matter, never even once the ICJ was dragged in, regardless of the existence of a dispute, all due to the simple fact that no party brought it to the face of the Court. However, shouldn't it be odd for the UN's principal judicial organ to remain silent on the matter when in fact it has the function to resolve and adjudicate especially in such cases where there exists a prima facie violation of international law? Another

D. THE RECOMMENDATION ON ICJ'S JURISDICTION
Having established the problems refraining the ICJ to operate to its fullest. The ICJ continues to command the pre-eminent position as the "principal judicial organ" of the United Nations, but to renew the influence and efficacy of the Court, vital reforms concerning the problems outlined above must be undertaken. Henceforth, the author has three recommendations particularly concerning the contentious jurisdiction of the Court.

Expansion in the Field of Application of the Court's Advisory Opinion
All this time, the field of application of the Court's advisory opinion has always been restricted to the five United Nations organs, fifteen specialized agencies and one related organization. 54 I strongly feel that, in a comprehensive plan for a reformed and more effective United Nations, there exists ample room for such proposals for the fuller utilization of the International Court of Justice in general and of its advisory jurisdiction in particular. The issue was also raised in 1998 in the Charter Committee Report (U.N. Doc. A/53/33). A third possibility is to authorize national supreme courts as well as international courts and tribunals to request advisory opinions on certain difficult or disputed questions of international law so as to allow for uniform interpretation for such rules and principles. 56

Render the Jurisdiction of ICJ as Mandatory and Compulsory to All State Parties
The Court's Statute shall be amended with a view towards making the jurisdiction of the Court mandatory and compulsory to all State Parties. The current situation is basically allowing States to cherry-pick the jurisdiction of the Court, which in many ways will certainly strip the Court off its own powers and designated prestige as the principal judicial organ of the UN. By making the Court's jurisdiction as mandatory and compulsory to all State Parties, not only that the ICJ will regain its leached powers, the strong and wrong precedence made by the unacceptance by the permanent members of the Security Council will be tackled down once and for all. Some might regard this act as authoritarian, however the elimination of this optional clause does not affect the right of States to first and foremost enter the preliminary objection procedure. It is noteworthy that the 56 Judge Shi, Loc.cit.