Anchor: Teena Jha
- In the wake of the terror attack at Pulwama, relations between India and Pakistan are at their lowest ebb. But even before the attack, the two neighbours, were engaged in an equally tense face-off at the International Court of Justice headquarters at the Hague, with legal teams from both sides presenting their arguments in the Kulbhushan Jadhav case.
- The case relates to retired Indian Naval officer Kulbhushan Jadhav who was kidnapped by Pakistani security forces in 2016.
- A Pakistani military court sentenced him to death in April 2017.
- On being challenged by India, the ICJ stayed Jadhav’s execution pending trial.
- The ICJ had conducted a four-day public hearing in the month of February 2019.
- And both India and Pakistan have presented their first round of arguments.
- This edition of In-Depth will look at the claims and counter-claims of both countries, the case of Kulbhushan Jadhav, the role of the ICJ in arbitrating legal cases between nations, and what effect does its verdicts have.
The International Court of Justice or the ICJ, is the principal judicial organ of the United Nations. It settles legal disputes between member countries and gives advisory opinions to authorized UN organs, and specialized agencies. The ICJ comprises a panel of 15 judges, elected by the General Assembly and the Security Council. These judges are elected for 9 year terms, and the Court sits in the Peace Palace in the Hague, Netherlands.
A Brief History:
The International Court of Justice was established in 1945 by a UN Charter and it began work in 1946, as a successor to the Permanent Court of International Justice. The statute of the International Court of Justice, similar to that of its predecessor, is the main constitutional document, constituting and regulating the Court. The Court engages in a wide range of judicial activity. Chapter 14 of the UN Charter authorizes the UN Security Council to enforce court ruling. However, such enforcement is subject to the veto power of the 5 permanent members of the Security Council.
Composition of the International Court of Justice (ICJ):
- The ICJ is composed of 15 judges, who are elected to nine-year terms by the UNGA (United Nations General Assembly) and the United Nations Security Council (UNSC).
- This is from a list of people nominated by the national groups in the Permanent Court of Arbitration.
- The Election process for the judges is set out in Articles 4-19 of the ICJ statute.
- Elections are staggered with 5 judges elected every 3 years to ensure continuity within the Court.
- Should a judge die in office, the practice has generally been to elect a judge in a special election to complete the term.
- Further, no two judges may be nationals of the same country.
- According to Article 9, the membership of the Court is supposed to represent the main forms of civilization and of the principal legal systems of the world. Essentially, that has meant common law, civil law, and socialist law.
- The judges in the ICJ are chosen to represent all geographic regions of the world. This is not based on a formal rule- it is just an informal understanding between nations.
- There are 5 seats for western countries, three for Africa, two for Eastern European countries, three for Asian countries, and two for Latin American and Caribbean countries.
- For most of ICJ’s history, France, Russia, China, the U.K., and the United States of America have always had a judge serving, thereby, occupying 3 of the western seats, 1 of the Asian seats, and 1 of the Eastern European seats- there have only been a few exceptions to this.
- Of these exceptions is one when China did not have a judge from 1967 to 1985, and British judge, Sir Christopher Greenwood being withdrawn as a candidate for election for a second nine-year term on the bench in 2017, leaving no judges from the United Kingdom on the Court.
- Indian judge, Dalveer Bhandari, instead took this seat.
What does the statute say?
- Article 6 of the statute provides that all judges should be elected regardless of their nationality. Further, they should be of high moral character.
- They should have either qualified for the highest judicial office in their home States, or known as lawyers with sufficient competence in international law.
- Judicial independence is dealt with in Articles 16-18
- Judges of the ICJ are not able to hold any other post or act as counsel.
- A judge can be dismissed only by unanimous vote of other members of the Court.
- Judges at the ICJ may deliver joint judgements or give their own separate opinions.
- Decisions and advisory opinions are by majority
- In the event of equal division, the President’s vote becomes decisive.
- Judges may also deliver separate dissenting opinions.
Ad Hoc Judges:
- Article 31 sets out a procedure whereby Ad hoc judges sit on contentious cases before the Court. This system allows any party to a contentious case, to select one additional person to sit as a judge on that case only.
- It is thus possible that as many as 17 judges may sit on one case.
- The provision for Ad Hoc judges has been made to encourage States to submit cases
- If a state knows that it will have a judicial officer who can participate in deliberation and offer other judges local knowledge and an understanding of the state’s perspective, then it may be more willing to submit to the jurisdiction of the Court.
- Although this system does not sit well with the judicial nature of the body, it is usually of little practical consequence.
- Ad Hoc judges usually vote in favour of the state that appointed them and thus cancel each other out.
- The International Court of Justice is a World Court. The member States of the United Nations are automatic parties to the Statute, subject to certain conditions. The States who are not party to the UN Charter may also become parties to the Statute.
Jurisdiction of the International Court of Justice:
The International Court of Justice acts as a world court and is the principal legal organ of the United Nations. The Court’s jurisdiction is two-fold:
- It decides in accordance with the international law, disputes of a legal nature that are submitted to it by States.
- It also gives advisory opinions on legal questions at the request of the organs of the United Nations, specialized agencies or one related organization authorized to make such a request.
The Court’s part is to settle as per the international law, legal matters submitted to it by States and to give admonitory opinions on legal enquiries referred to it by authorized United Nations organs.
- In the exercise of its jurisdiction in contentious cases, the International Court of Justice settles disputes of a legal nature that are submitted to it by States in accordance with international law.
- An international legal dispute can be defined as a disagreement on a question of law or fact, a conflict or a clash of legal views or interests.
- Only States may apply to or appear before the International Court of Justice (ICJ).
- International organizations, other authorities, and private individuals are not entitled to institute proceedings before the ICJ court.
- Article 35 of the statute defines the conditions under which the States may access the Court.
- Article 35 states that the Court is open to the State parties to the Statute, and that it is intended to regulate access to the Court by States which are not parties to the Statute.
- The conditions under which such States may access the Court are determined by the Security Council, but with the proviso that under no circumstances, shall such conditions place the parties in a position of inequality before the Court.
- The Court can only deal with a dispute when the States concerned have recognized its jurisdiction.
- No State can, therefore, be a party to proceedings before the Court unless it has in some manner or other contested thereto;
- Further, since States alone are entitled to go before the Court, public/governmental/international organizations cannot be parties to a case before the Court.
- However, a special procedure, namely the ‘Advisory Procedure’, is available to such organizations and to them alone. This procedure is available to 5 United Nations organs, the 15th specialized agencies, and 1 related organization.
- Though based on contentious proceedings, advisory proceedings have distinctive features that have resulted from the special nature and purpose of the ‘advisory’ function.
A Note on Advisory Proceedings:
- Advisory proceedings begin with the filing of a written request for an advisory opinion addressed to the Registrar by the United Nations Secretary-General or the director or the Secretary-General of the entity requesting the opinion.
- In urgent cases, the Court may take all appropriate measures to speed up the proceedings.
- To assemble all the necessary information about the question submitted to it, the Court is empowered to hold written and oral proceedings.
- Also, despite having no binding force, the Court’s advisory opinions, nevertheless, carry great legal weight and moral authority. They are often an instrument of preventive diplomacy and help to keep the peace.
- It is also important to note that the member countries are signatories to the various conventions like the Geneva Convention, the Vienna Convention etc.
- In their own way, advisory opinions also contribute to the clarification and development of international law and thereby to the strengthening of peaceful relations between States.
Kulbhushan Jadhav case: A Perspective
- The International Court of Justice was recently holding a 4-day long public rally on the Kulbhushan Jadhav case.
- India had urged the ICJ to annul Kulbhushan Jadhav’s death sentence by a Pakistani military court.
- Pakistan however, continues to claim that Kulbhushan Jadhav was an instrument of India’s official policy on terror.
- The International Court of Justice, began a 4-day public hearing, in the Kulbhushan Jadhav case on 18th February, 2019. In the first round of arguments, India accused Pakistan of using Kulbhushan Jadhav as a propaganda tool.
- Indian Counsel at the ICJ, Harish Salve built the case on the two broad issues.
- The Indian Counsel at the ICJ said that Pakistan breached the Vienna Convention on Consular Access and the process of resolution.
- He told the 15-judge court that Pakistan’s story on Kulbhushan Jadhav is solely based on rhetoric, highlighting that Pakistan filed the FIR almost a month after the arrest of Jadhav.
- Salve also attacked Jadhav’s trial by a secret military court in Pakistan, which he said was opaque to the outside world.
- Further, Pakistan provided no credible evidence to show Jadhav’s involvement in any act of terrorism.
- Salve pointed out that as per International Standards, military courts must be independent, impartial, and competent and respect a minimum guarantee of fairness.
- However, the Pakistani military courts are not independent and proceedings before them fall far short of national and international fair trial standards.
- Harish Salve said that according to Article 36 of the Vienna Convention, a country must be informed about the detention of its citizens. However, Pakistan did not inform India about Kulbhushan Jadhav’s arrest.
- Without consular access, India has no information on what happened to Jadhav in Pakistan.
- Since his arrest, India has sent 13 reminders to Pakistan for consular access to Jadhav, but Islamabad is yet to act.
- Pakistan, on the other hand, called India’s claims to release Jadhav, outlandish.
- Pakistan’s legal counsel alleged that India did not answer key questions about Kulbhushan Jadhav.
- Pakistan claims that its security forces arrested Jadhav from the restive Balochistan province on 3rd March, 2016 after he reportedly entered from Iran. However, India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Indian Navy.
Kulbhushan Jadhav was sentenced to death by a Pakistani military court for espionage and terrorism in April 2017. In May, 2017, India moved the ICJ against the farcical trial by the military Court of Pakistan. On 18th May, 2017, a ten member bench of the ICJ setup after the 2nd World War, to resolve international disputes, restrained Pakistan from executing Kulbhushan Jadhav, till adjudication of the case.
Various Disputes between Countries have ended up before the International Court of Justice.
The first case between United Kingdom Vs. Albania entered the General List of the Court and was submitted on 22nd May, 1947. Until 1st January, 2019, 176 cases have entered the General List.
India has been involved in the cases of the ICJ on 6 occasions, including the present one (Kulbhushan Jadhav). On four of these six occasions, Pakistan was the opposing party.
It is important to note that in contentious issues, involving one State against another, the names of the parties are separated by abbreviation. When a dispute is submitted on the basis of special agreement between two states, the names of the parties, are separated by an oblique mark.
Between 22nd May, 1947, and 1st January, 2019, a total of 176 cases were entered in the general list.
In fact, some interesting cases that came for hearing were:
- The Iran Hostage crisis that involved a diplomatic standoff between Iran and the United States of America. As a matter of fact, 52 American diplomats and citizens were held hostage for 444 days, from November 4th 1979, to January 20th 1981.
The Court had called for an immediate restoration of the embassy to America and release of the hostages. It marked the longest hostage crisis in recorded history.
The Court indicated provisional measures for ensuring immediate restoration of the Embassy premises.
- The Republic of Nicaragua Vs. The United States of America
In 1986, the ICJ ruled in favour of Nicaragua and against the U.S. and awarded reparations to Nicaragua. The ICJ said that the U.S. violated international law by supporting the Contras in their rebellion against the Nicaraguan government.
The United States avoided the proceedings after claiming that the Court had no jurisdiction to hear the case.
- On 9th January, 2003, Mexico accused America of violating articles, 5 and 36 of the Vienna Convention on Consular Relations, with respect to 54 Mexican nationals who were sentenced to death in certain states of the U.S. In its judgement on 31st March, 2004, the Court found that the U.S. breached obligations.
- India was involved in 6 cases at the ICJ, including:
-The Kulbhushan Jadhav case
– In 1955 Portugal claimed that it had a right of passage through the territory of India to ensure communications between its territory of Daman and Dadra and Nagar Haveli. India contended that the events that took place in Dadra on July 21st, and 22nd, 1954, overthrew Portuguese authority in these enclaves, creating tension in the surrounding Indian Territory.
The ICJ ruled that India had not acted contrary to its obligations.
- In 1971, India said that the Council of International Civil Aviation Organization had no jurisdiction on a complaint filed by Pakistan. Deciding on the case in 1972, the ICJ rejected Pakistan’s objection that the ICJ had no jurisdiction to entertain India’s appeal.
- It also held that the ICAO is indeed competent to entertain the complaint made to it by Pakistan.
- In 1973, Pakistan sought proceedings against India on the charges of genocide against 195 Pakistani nationals, prisoners of war, in Indian custody. The case ended after both India and Pakistan governments held discussions and came to an agreement on the issue.
- In 1999, Pakistan entered into a dispute on the destruction of a Pakistani aircraft by India. Pakistan said that the ICJ had jurisdiction in the issue. However, the ICJ concluded that it had no jurisdiction to entertain the application filed by Pakistan.
- In 2014, the Republic of the Marshall Islands instituted proceedings against all nuclear weapon states, contending breach of customary law obligations on nuclear disarmament. India said that the ICJ had no jurisdiction in this case.
- In the 2016 decision, the Court accepted that it cannot proceed to the merits of the case because of a lack of jurisdiction.
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