Kulbhushan Jadhav Case: Understanding the International Court of Justice (ICJ)



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Apart from the recent and unfortunate Pulwama attack, the case of Kulbhushan Jadhav has been another bone of contention between India and Pakistan. The final hearing was finally initiated and taken by the legal team of both the nations in the world court at The Hague in The Netherlands – International Court of Justice (ICJ). ICJ shares its own elaborative set of history and establishment.

India took Pakistan to ICJ on the grounds that Islamabad violated for egregious violations of the Vienna Convention on Consular Relations, 1963 in the case of Indian national Jadhav’s detention, denying consular access,   trial, and sentencing to death. Pakistan meanwhile questioned the jurisdiction of the ICJ in a case that involves, according to Pakistan, a spy. It added that India and Pakistan have a bilateral agreement whereby consular access can be denied to those caught in acts of espionage. The final hearing has been concluded this march while the preliminary hearing was completed last year. Let us understand what is ICJ or World Court.

What is ICJ?

The International Court of Justice (hereinafter, the ICJ or the Court) established by the charter of the United Nations is the principal judicial organ of the United Nations which functions from The Hague, Netherlands. It succeeded the Permanent Court of International Justice (PCIJ) which was conceptualized with League of Nations. It can be understood as a forum for the settlement of international disputes among States which functions according to the Statue of International Court of Justice

Composition of ICJ

The International Court of Justice is comprised of 15 judges elected for a period of nine years; elected regardless of their nationality from among persons of high moral character who possess the qualification required in their respective country for appointment to the highest judicial offices or are Juris consults of recognized competence in International Law and more than one national of any State may be a member of the Court. The judges represent the main legal systems of the world. The Court elects, for a term of three years, the President and Vice-President of the Court. Justice Dalveer Bhandari is the Indian representative elected as Judge last year.

The Court is assisted by a Registry, headed by a Registrar. Elections are held every three years for five vacancies of the Court each time. Eligible as judges are persons of high moral character and possessing the qualifications required in their respective countries for appointment to the highest judicial offices, or jurisconsults of recognized competence in international law.

The election is held simultaneously both in the General Assembly and in the Security Council, each voting independently of the other. In order to get elected, a candidate must obtain an absolute majority in both forums.

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The International Court of Justice possesses mainly three types of jurisdiction:

(i) Contentious jurisdiction: Contentious jurisdiction involves States that submit the dispute by consent to the Court for a binding decision by the way of treaty or on matter specifically enumerated in the charter under Article 36.

The only contentious cases the ICJ can hear are cases between States. Individuals have no right of direct access. This is an important difference between the ICJ and other human rights institutions that allow some type of direct access.

(ii) Compulsory Jurisdiction: The State parties to the Statute of the Court may “at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court” (Art. 36, para. 2, of the Statute).

Each State which has recognized the compulsory jurisdiction of the Court has in principle the right to bring any one or more other States, which have accepted the same obligation, before the Court, by filing an application instituting proceedings with the Court. Conversely, it undertakes to appear before the Court should proceedings be instituted against it by one or more other such States

 (iii) Advisory jurisdiction: Advisory jurisdiction concerns questions referred to the Court by the General Assembly, the Security Council or other organs and specialized agencies of the United Nations. Those questions can only refer to legal questions arising within the scope of their activities. Advisory opinions given by the International Court of Justice are not binding

Applicable Law

Matters before the International Court of Justice are decided in accordance with international law. According to the statute, the Court is required to apply:

  1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
  2. International custom, as evidence of a general practice accepted as Law;
  3. The general principles of law recognized by civilized nations;
  4. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Further, while the primary function of the Court is to settle the dispute in accordance with international law, Article 38(2) gives power to the Court to decide a dispute ex aqueo et bono, that is on the basis of equity, if the parties agree.

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Some Landmark verdicts delivered by ICJ

Recently the court in its advisory jurisdiction decided the legality of the wall built in Israel Case.

In Nicaragua(1986)case ICJ laid down the basic principle that consent of the state parties to the dispute is the basis of the court’s jurisdiction in contentious cases.

Some other popular cases are Crofu Channel case (UK v Albania, 1947), Fisheries case(UK v Norway, 1949), Asylum Case (Columbia v Peru, 1949), North Sea Continental Shelf Case (West Germany v Denmark, 1967), Trial of Pakistani Prisoner war (Pakistan v India, 1973), Legality of threat of use of Nuclear weapon (WHO, 1995), Right Of Safe Passage (India v. Portugal).

Image Sources:

Image 1- Pixabay

Image 2- The Hindu

Image 3- The Hindu

Kumar Lav Dibya Author

Author is a Special Project Correspondent with The Analysis.

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