Hearing of Kulbhushan Yadav Case in International Court of Justice

  • Category
    World Affairs
  • Published
    21st Feb, 2019

Context

During the on-going hearing of Kulbhushan Yadav case, the International Court of Justice (ICJ) refused to entertain Pakistan's request to adjourn the hearing in the case of Kulbhushan Jadhav to appoint a new ad-hoc judge.

About

What is International Court of Justice?

  • It is the principal judicial organ of the United Nations.
  • It was established in 1945 by the San Francisco Conference, which also created the UN.
  • All members of the UN are parties to the statute of the ICJ, and non-members may also become parties.

What is the composition of ICJ?

  • The ICJ is a continuing and autonomous body that is permanently in session.
  • It consists of 15 judges of which no two of whom may be nationals of the same state
  • These are elected to nine-year terms by majority votes in the UN General Assembly and the Security Council.
  • The judges, one-third of whom are elected every three years, are eligible for re-election.
  • The judges elect their own president and vice president, each of whom serves a three-year term, and can appoint administrative personnel as necessary.

What is the primary function of ICJ?

  • The court’s primary function is to pass judgment upon disputes between sovereign states. Only states may be parties in cases before the court, and no state can be sued before the World Court unless it consents to such an action.
  • Under article 36 of the court’s statute, any state may consent to the court’s compulsory jurisdiction in advance by filing a declaration to that effect with the UN secretary-general.

Are the decisions of ICJ binding on the related parties?

  • The court’s decisions are binding, and its broad jurisdiction encompasses “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.

How are cases resolved before ICJ?

Cases before the ICJ are resolved in one of three ways:-

  • They can be settled by the parties at any time during the proceedings;
  • A state can discontinue the proceedings and withdraw at any point; or
  • The court can deliver a verdict.
  • The ICJ decides disputes in accordance with international law as reflected in international conventions, international custom, general principles of law recognized by civilized nations, judicial decisions, and writings of the most highly qualified experts on international law.

Are the courts decisions binding?

  • The court’s decisions are binding on the parties and have been concerned with issues such as land and maritime boundaries, territorial sovereignty, diplomatic relations, the right of asylum, nationality, and economic rights.
  • The ICJ is also empowered to give advisory opinions on legal questions at the request of other organs of the UN and its specialized agencies when authorized to do so by the General Assembly.

                                          Vienna Convention

    • The Vienna Convention on Consular Relations of 1963 is an international treaty that defines a framework for consular relations between independent states.
    • A consul normally operates out of an embassy in another country, and performs two functions: (1) protecting in the host country the interests of their countrymen, and (2) furthering the commercial and economic relations between the two states.
    • The treaty provides for consular immunity. The treaty has been ratified by 179 states.Advisory opinions are not binding and are only consultative, though they are considered important.

Background

  • Kulbhushan Jadhav, a former Indian Navy officer, was arrested by Pakistani officials in March 2016, on suspicion of espionage and sabotage activities against the country.
  • Claiming that Jadhav was an Indian spy, the Pakistani military court sentenced him to death.
  • India has maintained that Mr Jadhav, a former naval officer-turned-businessman, was innocent and he had been kidnapped by Pakistani intelligence agencies from Iran.
  • India took Pakistan to the ICJ on the grounds that Islamabad violated the Vienna Convention by denying consular access to Kulbhushan Jadhav.
  • Pakistan countered it with another argument questioning the jurisdiction of the ICJ in a case that involves, according to Pakistan, a spy.
  • Pakistan has invoked the reservation under the UN charter (including India's reservation as part of the Commonwealth) and the bilateral agreement between India and Pakistan whereby consular access can be denied to those caught in acts of espionage.

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