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CROSSROADS OF CONTENTION: INDIA AND PAKISTAN AT THE INTERNATIONAL COURT OF JUSTICE
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CROSSROADS OF CONTENTION: INDIA AND
PAKISTAN AT THE INTERNATIONAL COURT OF JUSTICE
“Two basic pillars are necessary for the establishment of public order:
the existence of a proper law and the machinery for enforcing it, including the
sanctions behind the law. In the Inter-State sphere, no order can be maintained
if there is no existence of a well-defined and well-codified International Law
and an effective agency to enforce it.”[3]
The atmosphere created by the Hague
Conferences of 1897 and 1907 fueled the need to establish a world court for the
international community. While neither permanent nor a judge, the creation of
the Permanent Court of Arbitration marked a significant move forward in
international law and the consolidation of an international legal system.
However, by the end of the First World War, no lasting concrete steps were
taken. The League of Nations Covenant required the drafting of proposals for
the establishment of a world court, and the Permanent Court of International
Justice (PCIJ) was established in 1920. It boosted attempts to establish
universal arbitral bodies. The Permanent Court was designed to work in
combination with arbitration to establish a fairly comprehensive mechanism for
the international community. It was conceived as a means of preventing
outbreaks of violence by making conflict resolution mechanisms readily
accessible within the context of a legal and organizational system.[4]
After WWII, the PCIJ was replaced by
the International Court of Justice, which is listed as the UN's "principal
judicial organ" in Article 92 of the Charter. In reality, it is a hybrid
of the Permanent Court and the International Court of Justice, with almost
identical statutes and jurisdiction and a continuous line of proceedings, with
no distinction made between those determined by the PCIJ and the ICJ. Following
the collapse of the League of Nations, participants at the Dumbarton Oaks
Meeting, which established the United Nations, wished to establish a direct
judicial connection between the League of Nations and the new UN.
HISTORY:
Since the ICJ is the successor to the
PCIJ, the PCIJ's Statute served as the current Court's legislative foundation.
The question then becomes how the whole tribunal may be modified while
maintaining the same Statute and the same State statements that the Court's
jurisdiction will remain intact. Considering the high productivity of the PCIJ's
cases during its years of operation, it was determined that it would be unfair
for the Court to bear the brunt of the League of Nations' shortcomings. As a
result, it was much easier to make a formal name change and leave the new Court
as the UN's principal judicial entity, while retaining a degree of consistency
in the work that the PCIJ had done since 1922 (the year the PCIJ made its first
decision.[5])
FUNCTIONS OF
ICJ:
It is not necessary to go to the
International Court of Justice. Both parties freely agree to the jurisdiction
of the case. As a result, any contesting party that files an application with
the ICJ agrees that it is prepared to obey the Court's decision on the issue at
hand.[6]
However, if one of the parties
refuses to accept a decision, the ICJ will not be able to enforce it against
that country. Judicial execution would be contrary not only to the principle of
state sovereignty, but also to past practice, which has shown that disputes
between nations can only be resolved by negotiation rather than coercion.
The ICJ's trials are divided into two
phases: a "written phase," in which the parties file and exchange
pleadings, and a "oral phase," in which the parties' representatives
and lawyers testify before the Court in public hearings.[7]
The Court's hearings are conducted in English and French, with both written and
oral submissions in one of the two languages being translated into the other.[8] The Court
deliberates in camera after the oral process of the proceedings. It then
announces its decision in a public meeting. There is no right of appeal against
the ruling. If one of the parties fails to comply with the ICJ's resolution,
the order entitles the matter to be brought before the United Nations Security
Council. The ICJ acts as a plenary body, but the parties may request that
smaller specialized chambers be formed.
Hypothesis
In the clash
between the principles of natural justice and international politics it is the
latter which takes precedence over the former.
Research Questions
1. Has ICJ
been biased in cases between India and Pakistan due to the international
reputation held by Pakistan? / Preconceived notion and bias against Pakistan in
the eyes of ICJ valid?
2. Does jurisdiction of ICJ exist after a country has explicitly denied jurisdiction?
3. Powers of ICJ in cases of non-observance of its judgement.?
4. Can ICJ have jurisdiction on a particular matter when countries have already signed a bilateral treaty to govern the event/situation?
2. Does jurisdiction of ICJ exist after a country has explicitly denied jurisdiction?
3. Powers of ICJ in cases of non-observance of its judgement.?
4. Can ICJ have jurisdiction on a particular matter when countries have already signed a bilateral treaty to govern the event/situation?
Research Methodology
The paper
adopts a combination of analytical and descriptive approach wherein the
research has been done primarily through case laws, books and journals.
Mode of Citation
Chapterization
In the first
chapter a basic introduction to the topic has been given. The several insights
that the researcher is going to have upon the topic has been discussed.
In
the second chapter the structure of court in detail as well as the role and
function of each and every agent.
In
the third chapter several cases of ICJ in which India was a necessary party
taken up.
As Leo Gross argues:
Confidence in the Court, its impartiality and
objectivity has been widely identified as a crucial factor in the role which it
might play in the changing pattern of international relations.[9]
There has been considerable care
taken to ensure that as many nationalities and legal structures as possible are
included.
•
JUDGES: Originally, the PCIJ consisted of eleven Judges and four
Deputy-Judges; however, the post of Deputy-Judge was abolished in 1936, and the
Court's membership was reduced to fifteen.
The
International Court of Justice (ICJ) is made up of fifteen judges who are
selected, regardless of nationality, from among individuals of high moral
character who have the credentials required in their respective countries for
election to the highest judicial offices, or who are jurisconsults with
recognized experience in international law.[10]
The process for appointing judges
incorporates legal and political aspects while attempting to limit the control
of nation states as much as possible. The judges of the Court are chosen from a
list of eligible persons drawn up by the PCA's national groups, or by newly
selected national groups in the case of UN members who are not represented in
the PCA, by the General Assembly and Security Council (voting separately).[11] This
clause was added to limit political influence in the appointment of judges. The
elections are held every three years, with five judges being elected each time.
The aspect of continuity among the Court is preserved in this way.
In reality, there is strong
cooperation between the Assembly and the Security Council in the election of
judges, and political considerations do obtrude, especially in light of Article
9 of the ICJ Law, which states that electors should bear in mind not only that
the individuals to be elected individually possess the qualifications needed,
but also that the body as a whole should possess the qualifications required.
This mechanism has been criticized
for being politicized, but given the conditions, it's difficult to see how it
could be avoided entirely. Individual judges' decisions can be critical,
particularly in delicate situations.
Members of the Court are chosen for a
nine-year term and are eligible for re-election.[12]
When on official duties, they possess diplomatic immunity and immunities,[13] and a
judge cannot be disqualified until the other judges of the Court agree that he
or she has failed to meet the necessary requirements.[14]
This includes the ban of members conducting certain legislative or managerial
roles or working in any other occupation. In no situation does a member act as
an agent, advocate, or lawyer, and no member may engage in the decision of a
case in which he has previously acted as an agent or advocate for one of the
parties.
If the parties to a lawsuit do not
have a judge with their nationality seated on the case, Article 31 of the ICJ
constitution gives them the option of naming ad hoc judges. This procedure
therefore aims to maintain perfect balance in the court such that parties who
want to take their case to the tribunal can be assured of its fairness and
impartiality. Ad hoc judges serve for a limited time, as opposed to the 15
permanent judges appointed by the General Assembly and Security Council. Ad hoc
judges, on the other hand, have also voted against the Establishment that had
selected them. - In the Nicaragua vs. Colombia situation, Jean-Pierre Cot.[15] In
another case, a respondent to a complaint can have an official language that is
not one of the Court's official languages.[16]
In such cases, the States can choose an ad hoc judge of a different nationality
with the assurance that the judge's mother tongue is one of the Court's
official languages, as in Nicaragua[17]
and Bahrain.[18]
An person with a recognized
trajectory in International Law or international law professors from reputable
universities must be selected as an ad hoc judge.[19]
Ad hoc judges must meet the same standards as permanent judges of the Court,
according to the Court's Legislation.[20]
•
PRESIDENT AND VICE-PRESIDENT: The Court's President and Vice-President
are chosen for a three-year term and may be re-elected.[21] The President is chosen in
a secret ballot election.
The President
is in charge of receiving communications from judges when they consider that he
ought not to sit on a special case. Additionally, if the President considers
that a judge should not sit on a case, he must communicate that consideration
to the judge. If they disagree, the Court shall decide.[22]
“The president shall
preside at all sessions of the Court, and he shall direct the operation and
supervise the administration of the Court,” according to Article 12 of the
Rules of Court.
•
REGISTRAR: As “an separate and autonomous register is a necessary
prerequisite for an independent judiciary,” the Registrar is the chief
administrative officer of a court or tribunal.
The Court elects the
Registrar[23] for a
seven-year term, and he or she may be re-elected. The Registrar's
responsibilities are specified in Article 26 of the ICJ Rules.
Over the independent states, there is
no single political power. As a result, without the permission of the sovereign
nations, no International Tribunal can exercise authority over them. The
parties' permission is required for the ICJ to exercise jurisdiction. Many ICJ
decisions support the idea of the ICJ's authority being founded on consent. The
International Court of Justice (ICJ) ruled in the Corfu Channel case[24] that the
parties' agreement confers authority over the court.
The rigidity of the concept of consensual
foundation of authority has been quite mitigated by court pronouncements
pertaining to the way under which the consent through is conveyed. It has been
apparent from the experience of both the old and modern courts that it makes no
difference if or when permission is granted. Consent does not have to be
conveyed in a precise manner, and it does not have to be granted until the
proceedings are begun.[25] As a
result, it is clear that the parties' consent will not be articulated and may
be decided by their actions. Such actions may be inferred by the respondent
State's written pleadings or whether the respondent State has argued the merits
of the case without contesting the ICJ's jurisdiction.
Doctrine of “Forum Prorogatum”: Prorogated jurisdiction is a Roman law entity
that allows jurisdiction to be bestowed over an existing tribunal that is not
otherwise qualified by the litigants during the trials. The theory of forum
prorogatum is the product of pronouncements from both the PCIJ and the IC in
international law. Acceptance to a unilateral order to appear before the judge
confers authority over the court, according to the theory.
The International Court of Justice's
law controls its activities. While all UN members are potentially party to the
statute[26], the ICJ
does not have authority over lawsuits involving them. And with the parties'
approval does the ICJ gain authority.
India has declared the areas of which
it recognises the ICJ's jurisdiction. India repealed and restored its previous
declaration from September 1959 in September 1974.
Among the matters over which India
does not accept ICJ jurisdiction are:
Ø Disputes
with the government of any State which is or has been a Member of the
Commonwealth of Nations, and
Ø Disputes
relating to or connected with facts or situations of hostilities, armed
conflicts, individual or collective actions taken in self-defense.
Ø The
declaration, which includes other exceptions as well, has been ratified by
Parliament.
3. INDIAN CASES AT THE ICJ
There are six incidents when Indian
cases were put before the ICJ. Four of the cases put before the ICJ were
regarding issues with Pakistan.
•
Case About Right of
Passage over Indian Territory[27] (Portugal Vs India, 1955): Portugal had filed a
lawsuit against India in 1954, alleging that it had been denied access to the
Portugese territories of Dadra and Nagar Haveli. In 1960, the International
Court of Justice ruled in India's favour, noting that India's denial of passage
was protected by its authority to govern and control Portugal's right of
passage.
•
Appeal Regarding the
Jurisdiction of ICAO Council[28] (India Vs Pakistan, 1971): In 1971, India
challenged the International Civil Aviation Organization's (ICAO) authority to
rule on Pakistan's appeal that India not deny it flight and landing privileges.
After the January 1971 hijacking of an Indian Airlines flight to Lahore and the
hijackers' gutting of the plane, India revoked Pakistan's overflight rights.
The International Court of Justice ruled against India stating that ICAO had
jurisdiction in this case.
•
Case Concerning the Trial
of Pakistani Prisoners of War[29] (Pakistan Vs India,
1973):
Pakistan lodged a lawsuit in 1973 to prohibit the repatriation to Bangladesh of
195 Pakistani citizens detained in Indian detention during the 1971 war to face
genocide charges, but the case was dismissed the following year. Pakistan, as a
Commonwealth member, can no longer take India to the International Court of
Justice after 1974.
•
Aerial Incident of 1999[30] (Pakistan Vs India,
1999):
Pakistan lodged a lawsuit with the International Court of Justice (ICJ) in 1999
over a controversy over India's 1999 demolition of a Pakistani aircraft.
Pakistan argued that the International Court of Justice (ICJ) has authority
over the case. India, on the other hand, challenged the International Court of
Justice's jurisdiction in the matter, arguing that Pakistan's appeal to the ICJ
did not apply to any treaty or agreement in effect between the two countries.
Pakistan's argument that the Shimla Accord requires disputes between the two
countries to be referred to the ICJ was dismissed by the court in 2000. The ICJ
decided that it lacked authority to hear Pakistan's application. Around the
same time, the court encouraged both sides to use diplomatic means to overcome
their differences.
•
Kulbhushan Jadhav Case[31] (India vs.
Pakistan): Kulbhushan Sudhir Jadhav, born 16 April 1970[32] is an Indian national
arrested over charges of terrorism and spying for India’s intelligence agency,
the Research and Analysis Wing (RAW).[33]
According to Pakistan, they arrested
Kulbhushan Jadhav from Mashkel area in the province of Balochistan, Pakistan on
3rd March, 2016.[34] It was
alleged that Kulbhushan was involved in espionage and sabotage activities
against Pakistan.
He was detained on March 3, 2016,
during a counter-intelligence operation in Balochistan, according to the
Pakistani government. He was a former commander in the Indian Navy who was
engaged in terrorist activities within Pakistan, according to the Pakistani
government. The Indian government acknowledged Jadhav as a former naval officer
but denied any links to him, claiming that he retired early and was kidnapped
in Iran, where he was doing business after leaving the Indian Navy.
Kulbhushan Jadhav was charged with
espionage and found guilty by a court under Section 3 of the Official Secrets
Act of 1923 and Section 59 of the Pakistan Army Act of 1952. After a
three-and-a-half-month hearing, Jadhav was sentenced to death in a Field
General Court Martial on April 10, 2017.
The situation escalated into a major
flashpoint in India-Pakistan relations. India had requested consular access to
Mr. Jadhav on several occasions, as well as a verified copy of the charge sheet
and the verdict. Pakistan has turned down India's offer a total of 13 times.
India went to the International Court of Justice (ICJ) for help.
India requested for four temporary
reliefs from the ICJ[35], which
were:
a)
The death penalty levied on Kulbhushan should be suspended.;
b)
Restitution in interregnum (restoring to prior condition) by
declaring that Pakistan has:
i.
Violated Article 36(1)(b)[36] of the Vienna Convention on
Consular Relations, 1963 by denying it access to Kulbhushan.
ii.
Defied elementary human rights under Article 14 of the
International Covenant on Civil and Political Rights, 1966.[37]
c) Limiting Pakistan's
right to carry out the death sentence;
d) If Pakistan is unable
to revoke the conviction decision against Kulbhushan, the ICJ should consider
Pakistan's decision to be in breach of international law.
The International Court
of Justice (ICJ) in The Hague unanimously acknowledged India's appeal against
Kulbhushan Jadhav's death penalty imposed by Pakistan. The tribunal, headed by
Judge Ronny Abraham, asked Pakistan not to execute Kulbhushan Jadhav until the
International Court of Justice issued a final ruling in the case.[38] There
were several issues before the ICJ:
1. Whether ICJ has jurisdiction to decide the case?
2. Are the rights alleged by India plausible?
3. Is there a link between the rights claimed and provisional measures
requested?
4. Is there a risk of irreparable prejudice and urgency?
?
The ICJ started its analysis of the case's first issue by deciding
if it had authority to hear it. According to the Court, India claimed
jurisdiction under Article 1 of the Vienna Convention's Optional Protocol,
which states that the Court has jurisdiction over "disputes arising out of
the reading or implementation of the Vienna Convention."
According to
the Court, both India and Pakistan disagree on the issue of India's consular
assistance to Kulbhushan Jadhav under the Vienna Convention. The activities
claimed by India-failure Pakistan's to include the necessary consular notices
in regard to Jadhav's arrest and detention tend to fall within the framework of
the Vienna Convention, according to the Court.
According to
the Court, this was enough to show that it had prima facie authority under
Article 1 of the Optional Protocol. The presence of a bilateral agreement
between the parties in 2008[39]
would not affect the ICJ's conclusion on jurisdiction.
?
In relation to the second question in the case, the Court noted
that Article 36 (paragraph 1) of the Vienna Convention acknowledges rights to
consular notification and communication between a State (India) and its
citizens, as well as the responsibilities of the detaining State (Pakistan) to
notify the individual concerned of his rights without delay. India has stated
that this clause has been breached.
According to
the ICJ, India's claimed rights seem to be possible.
?
On the third question, the ICJ stated that the requested steps are
intended to protect the rights set out in Article 36, paragraph 1 of the Vienna
Convention. The Court noted that the rights asserted by India and the
provisional steps sought have a relation.
?
In reference to the fourth question, the Court said that the
simple fact that Kulbhushan Jadhav is on trial for murder and may be executed
is sufficient to prove that there is a possibility of irreparable damage to
India's interests. Pakistan has stated that the execution of Kulbhushan Jadhav
would most likely not take place before August 2017, according to the ICJ. This
ensures that an execution may happen at any time before the Court renders its
final judgement in the case. Pakistan has not issued any guarantee that
Kulbhushan Jadhav will not be executed until the Court makes its final verdict,
according to the ICJ. As a result, the Court stated that it is confident that
the current case is urgent.
The Court ordered Pakistan to take
all available steps to prevent Kulbhushan Jadhav from being executed pending
the outcome of the case, and Pakistan to notify the Court of all actions taken
to carry out the direction.[40]
In terms of defensive logic,
Pakistan's situation had a variety of alternatives. The following points may be
used as defensive lines:
- Pakistan should have
targeted the case's jurisdictional dimension on a technical level. The
ICJ's authority jurisprudence is far from simple. It's a risky job to use
Article 36(1) of the ICJ Statute to attach Article I of the OP-VCCR. Since
Article 36(1) of the ICJ Statute refers to compromissory jurisdiction,
while Article I of the OP-VCCR refers to compulsory jurisdiction, the ICJ
will have to investigate the grounds of the essence of the jurisdiction it
will assume.[41]
The apparent conflict between
the forms of authority would undoubtedly aid Pakistan in demonstrating the
ICJ's jurisdictional shortcomings.
- In their essay “ICJ's
Restricted Authority” two foreign lawyers from Pakistan, Sikandar Ahmed Shah and Abid
Rizvi, have discussed the line of claims. Their arguments are that:
- The ICJ's
jurisdiction is limited because it can only look at the interpretation or
application of the VCCR;
- Because Pakistan is
a dualist state that requires international legal obligations to be
legislated nationally before they can be considered binding, the VCCR was
not legislated nationally in the Diplomatic and Consular Privileges Act,
1972, and hence it cannot be interpreted.
- Given the
extraordinary situations that exist between India and Pakistan, the
relevant international law is International Humanitarian Law. The rule of
military war can be extended under these situations and in light of the
Additional Protocol I to the Geneva Conventions, 1977 (AP-I). Article 46
of the AP-I deals with spies who are not afforded the same immunity as
soldiers or prisoners of war. He is only qualified to the basic rights
set out in Article 75 of the AP-I. Widening the AP-I to this situation
would invariably mean acknowledging the continuation of an international
military war between India and Pakistan; this stance must be taken with
caution, since it could have unintended legal implications for the two
countries' Kashmir dispute.
- The scholars cite
the Medellin vs. Texas dispute, which was settled by the United States
Supreme Court in 2008. The case concerned the permeability of
international law into national law in the absence of relevant national
laws. The case was similar to the Kulbhushan case, in which consular
entry was refused to a rapist who had gang raped two girls in Texas among
others. It should be recalled that the Medellin decision was based on the
Avena case, which was settled in 2004 and in which the US denied consular
entry to 54 Mexican nationals. The International Court of Justice had
ruled in Mexico's favour, but the US Supreme Court refused to follow the
ICJ's decision.
- Article 30 of the ICJ
Statute states that the ICJ will establish guidelines for carrying out its
functions. As a result, in 1978, it drafted the Rules of Court. Since
there is no statutory framework for a stay in the legal system under which
the ICJ operates, India has applied for a “provisional measure” order
against Pakistan under Rule 74(4). Since Rule 74 (4) of the ICJ Law is not
a result of the treaty-making process, Pakistan will dispute the Rule's
very foundation in its pleadings. Even if it were not, the Rule's language
is soft. “Pending the Court's meeting, the President should call upon the
parties to proceed in such a manner that any order the Court may make on
the proposal for provisional steps will have the necessary effects,” it
says.
- India has stated that
it plans to challenge the military court's conviction and death sentence; however,
the ICJ is unlikely to consider this argument. Pakistan's best bet is to
contend that it followed its own laws and that the case was handled by a
judge with authority over those offences. The death penalty and military
courts are also part of Pakistan's criminal justice system, and is based
on the UN Charter's "principle of sovereign freedom" (Article
2(1)).[42]
- The Agreement on Consular Access (ACA) among
Pakistan and India, which was concluded on May 21, 2008, may be taken into
account into Pakistan's technical security qua jurisdiction. The ACA
stipulated that “in case of conviction, imprisonment, or punishment
rendered on political or security grounds, each party may examine the case
on its merits,” according to clause (vi). The language of ACA clause (vi)
is broad, which may encourage Pakistan to claim that the impact of Article
1 of the OP-VCCR has been superseded by the ACA, as echoed in the Joint
Statement of May 21, 2008. (after the Foreign Minister level review of the
Fourth Round of Composite Dialogue between India and Pakistan).
In any case where India was a party
before the ICJ, the court tested its jurisdiction and ultimately determined the
case. In the case of Kulbhushan Jadhav, the ICJ issued temporary
relief/provisional steps, i.e. a stay of execution of Kulbhushan Jadhav, after
being prima facie satisfied about the validity of India's case and the
availability of its authority over the conflict, by invoking the clauses of the
aforementioned articles. Both India and Pakistan are signatories to the Vienna
Convention on Consular Relations of 1963, which provides for consular
assistance to their citizens awaiting prosecution in other countries and
confers unequivocally and compulsorily jurisdiction in the International Court
of Justice. Furthermore, the well-known international law doctrine of
"pacta sunt servanda" demands that negotiations entered into in good
faith be carried out in good faith, with any infringement constituting a
violation of international law. When viewed against this perspective, it is
clear that consular access to India was refused, despite the fact that it is
well recognised that Pakistani military tribunals are opaque, work in breach of
national and international fair trial requirements, and refuse to offer
fairness, evidence, and even adequate redress to those facing charges.
The case of Kulbhushan Jadhav was a
starting point for the International Court of Justice (ICJ) to dispel the myth
that international law is the last bastion of jurisprudence.
The International Court of Justice
(ICJ) released its final judgement on the Kulbhushan Jadhav case involving
India and Pakistan on July 17, 2019. The court found that Pakistan had violated
its obligations under the 1963 VCCR with a 15-1 majority decision in India's
favour.[43] However,
since the International Court of Justice will only offer partial relief,
Kulbhushan Jadhav's arrest and pending death penalty remain unclear at best.[44]
After being refused entry for the previous
13 times, Pakistan eventually allowed Indian diplomats and family members
(mother and wife) to meet with Jadhav on September 2, 2019, after which
consular access was rejected once more. Even during this meeting, it was
alleged that Jadhav was being pressured to repeat a false Pakistani story.[45]
4.
CONCLUSION
The International Court of Justice,
which is based in the Netherlands, is the UN's primary judicial body. It is
independent of both the UN legislative branch (the Security Council and the General
Assembly) and the executive branch (the UN Secretary-General) (the
Secretariat). The Court contributes to the implementation of international law
by making rulings on disputes between states and issuing advisory opinions to
support other UN bodies.
The International Court of Justice
has no way of applying its decisions, which still have little legal
jurisdiction. If a country doesn't even want an unfavorable decision, it will
refuse to allow the appeal to be considered and resolved by the Judge.
This is a major deviation from
domestic courts' binding nature. The long-term stability of the Universal Court
of Justice is predicated on its constitutional validity. If it constantly
released unpopular decisions against influential states, and those states rejected
the rulings, any kind of foreign diplomatic recognition would be jeopardized.
Overall, the world court would be unable to take up politically contentious
cases of relevance because it is acting in a diplomatic setting.
Nonetheless, it offers a new platform
for hope in the settlement of world crises, one that is aligned with the United
Nations' mandate.
In a recent press publication, the
United Nations stated that in the past, various countries used to show some
level of respect for the International Court of Justice's decisions and
directives. Nobody needs to be bound by the words of others in today's world.
The United States has failed to attempt to regulate the amount of waste it
produces in the atmosphere and refuses to acknowledge that this is the world's
second-most polluting region. India and Pakistan are at war, and so there is no
way to avert possible violence after the Indian Parliament's revocation of
Article 370 of the Indian Constitution. As a result, although the ICJ was once
the legal authority in the field of international law, its ability to apply its
own decision is steadily dwindling in this intolerant world.
[1] Research Scholar, University of
Lucknow
[2] Judicial Magistrate First Class,
Rajmahal, Sahibgunj, Jharkhand Judicial Services
[3] Nagendra Singh, “International Court of Justice – Watchman of the
World Peace and Order” (18 October 1970) 87
[4] Rosenne’s Law and Practice, Vol. I,
Chapter 1, para. I.4.
[5] Designation
of Workers’ Delegate for the Netherlands at the Third Session of the
International Labour Conference, Advisory Opinion (31st of July
1922) PCIJ.
[6] Article 94 (1) of the UN Charter.
[7] Article 43 of the Statute of the
International Court of Justice.
[9] Leo Gross, ‘The International Court of
justice: Consideration of Requirements for Enhancing its Role in the
International Legal Order’, AJIL, Vol.65(1971)
p.281.
[10] Article 2, Statute of the ICJ
[11] Aricles 4 and 5 of the ICJ statute. In
practice, governments exercise a major influence upon the nomination process of
the national groups. Merrills, International Dispute Settlement, p. 134
[12] Article 13 of the ICJ Statute.
[13] Article 19 of the ICJ Statute.
[14] Article 18 of the ICJ Statute.
[15] Territorial and Maritime Dispute (Nicaragua vs.
Colombia), Judgement, 19th November 2012. Available at https://www.icj-cij.org/en/case/124 accessed on 25/03/2021 at 02:04 PM.
[16] Article 39 of the Statute: The official languages of
the ICJ are English and French.
[17] Nicaragua chose Mr. Gilbert Guillaune – France;
Dispute regarding Navigational and Related Rights (Costa Rice vs. Nicaragua),
Judgment, I.C.J. Reports 2009, p. 213 https://www.icj-cij.org/en/case/133 accessed on 25/03/2021 at 02:04 PM.
[18] Bahrain chose Mr. Yves Fortier; Maritime Delimitation
and Territorial Questions between Qatar and Bahrain, Merits, Judgement, I.C.J.
Reports 2001, p. 46 https://www.icj-cij.org/en/case/87
accessed on 25/03/2021 at 02:04 PM.
[19] Professors Pellet, Crawford, Kohen, Brownlie and
Abi-Saab.
[20] Articles 4 and 5 of the Statute of the ICJ
[21] Article 21 of the Statute of ICJ
[22] Article 24 of the Statute of ICJ
[23] Article 21 of the Statute of ICJ
[24] United Kingdom vs Albania, 1948 available at https://www.icj-cij.org/en/case/1 accessed on 25/03/2021 at 02:04 PM.
[25] Ibid.
[32] Kulbhushan Yadav, alias (alleged- Hussain Mubarak
Patel), “What the ICJ had to say in the Kulbhushan Yadav Case”, The Wire on 18
July 2019 available at https://thewire.in/law/full-text-kulbhushan-jadhav-icj-judgment accessed on 25/03/2021 at 02:04 PM.
[33] Salman Masood (29 March 2016) “Pakistan releases
Video of Indian Officer, saying that he’s a spy”. The New York Times on 30
March 2016, available at https://www.nytimes.com/2016/03/30/world/asia/pakistan-releases-video-of-indian-officer-saying-hes-a-spy.html accessed on 25/03/2021 at 02:04 PM.
[34] “Pakistan claims arrest of ‘RAW Agent’ in
Balochistan. What happens next” The Wire on 27 March 2016 available https://thewire.in/diplomacy/pakistan-claims-arrest-of-raw-agent-in-balochistan-what-happens-next at accessed on 25/03/2021 at 02:04 PM.
[35] Press Release, International Court of Justice on 9
May 2017 available at https://www.icj-cij.org/files/case-related/168/19420.pdf accessed on 25/03/2021 at 02:04 PM.
[36] Article 36 (1) (b): “With a view to facilitating the
exercise of consular functions relating to nationals of the sending State:
(a)…
(b) if he so requests,
the competent authorities of the receiving State shall, without delay, inform
the consular post of the sending State if, within its consular district, a
national of that State is arrested or committed to prison or to custody pending
trial or is detained in any other manner. Any communication addressed to the
consular post by the person arrested, in prison, custody or detention shall be
forwarded by the said authorities without delay. The said authorities shall
inform the person concerned without delay of his rights under this subparagraph;”
[37] Article 14 of the ICCPR reads: “All persons shall be
equal before the courts and tribunals:
1. In the determination
of any criminal charge against him, or of his rights and obligations in a suit
at law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The Press and the public
may be excluded from all or part of a trial for reasons of morals, public order
or national security in a democratic society, or when the interest of the
private lives of the parties so requires, or to the extent strictly necessary
in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice; but any judgement rendered in a criminal
case or in a suit at law shall be made public except where the interest of
juvenile persons otherwise requires or the proceedings concern matrimonial
disputes or the guardianship of children.
2. Everyone charged with
a criminal offence shall have the right to be presumed innocent until proved
guilty according to law.
3. In the determination
of any criminal charge against him, everyone shall be entitled to the following
minimum guarantees, in full equality:
(a) To be informed
promptly and in detail in a language which he understands of the nature and
cause of the charge against him;
(b) To have adequate time
and facilities for the preparation of his defense and to communicate with
counsel of his own choosing;
(c) To be tried without
undue delay;
(d) To be tried in his
presence, and to defend himself in person or through legal assistance of his
own choosing; to be informed, if he does not have legal assistance, of this
right; and to have legal assistance assigned to him, in any case where the
interests of justice so require, and without payment by him in any such case if
he does not have sufficient means to pay for it;
(e) To examine, or have
examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses
against him;
(f) To have the free
assistance of an interpreter if he cannot understand or speak the language used
in court;
(g) Not to be compelled
to testify against himself or to confess guilt.
4. In the case of
juvenile persons, the procedure shall be such as will take account of their age
and the desirability of promoting their rehabilitation.
5. Everyone convicted of
a crime shall have the right to his conviction and sentence being reviewed by a
higher tribunal according to law.
6. When a person has by a
final decision been convicted of a criminal offence and when subsequently his
conviction has been reversed or he has been pardoned on the ground that a new
or newly discovered fact shows conclusively that there has been a miscarriage
of justice, the person who has suffered punishment as a result of such
conviction shall be compensated according to law, unless it is proved that the
non-disclosure of the unknown fact in time is wholly or partly attributable to
him.
7. No one shall be liable
to be tried or punished again for an offence for which he has already been
finally convicted or acquitted in accordance with the law and penal procedure
of each country.”
[38] Press Release, International Court of Justice,
available at
https://www.thehindu.com/news/international/article18484722.ece/BINARY/ICJ%20verdict%20staying%20Kulbhushan%20Jadhav%20execution accessed on 25/03/2021 at 02:04 PM.
[39] “India, Pakistan ink deal on consular access for
prisoners” India Today on 21 May 2008, available at https://www.indiatoday.in/latest-headlines/story/india-pakistan-ink-deal-on-consular-access-for-prisoners-25525-2008-05-21 accessed on 25/03/2021 at 02:04 PM.
[40] Press release, International Court of Justice on 18
May 2017, available at https://www.icj-cij.org/files/case-related/168/19440.pdf accessed on 25/03/2021 at 02:04 PM.
[41] Article 1 of OP-VCCR reads: “Disputes arising out of
the interpretation or application of the Convention shall lie within the
compulsory jurisdiction of the International Court of Justice and may
accordingly be brought before the Court by an application made by any party to
the dispute being a Party to the present Protocol”
[42] Article 2(1) reads: “The Organization is
based on the principle of the sovereign equality of all its Members.”
[43] International Court of Justice, available at https://www.icj-cij.org/files/case-related/168/168-20190717-JUD-01-00-EN.pdf accessed on 25/03/2021 at 02:04 PM.
[44] “The Kulbhushan Jadhav Verdict: A certain win, with
uncertain outcomes” Observer Research Foundation on 19 July 2019 available at https://www.orfonline.org/expert-speak/the-kulbhushan-jadhav-verdict-a-certain-win-with-uncertain-outcomes-53188/ accessed on 25/03/2021 at 02:04 PM.
[45] “Kulbhushan Jadhav was under pressure to parrot false
Pakistani narrative : India after consular meet” India Today on 3 September
2019 available at https://www.indiatoday.in/india/story/kulbhushan-jadhav-was-under-pressure-to-parrot-false-pakistani-narrative-india-after-consular-meet-1594608-2019-09-02 accessed on 25/03/2021 at 02:04 PM.
Article Information
CROSSROADS OF CONTENTION: INDIA AND PAKISTAN AT THE INTERNATIONAL COURT OF JUSTICE
Authors: UTKARSH PANDEY, MANSI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/04
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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