International Court of Justice (ICJ)

ICJ directs Pakistan to review or reconsider Kulbhushan Jadhav’s sentence under provisions of 1963 Vienna Convention.

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• In its judgment, the ICJ ruled in favour of India and found that Pakistan breached own commitments to the Vienna convention on consular relations, and also rejecting its contention that the convention doesn’t apply to the charges of espionage and terrorism levelled against Mr. Jadhav.
• These recommendations can only ensure a fair trial process for him in Pakistan, and not his release.
• The present ICJ verdict constitutes a major diplomatic and legal victory for India.

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.
• He was sentenced to death on charges of espionage and terrorism in April 2017.
• India has maintained that he was running a business in Iran and 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 him.
• Pakistan countered it with another argument questioning the jurisdiction of the ICJ in a case that involves.
• 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.
• Despite repeated attempts, Pakistan had denied India consular access to him under Article 36 of the Vienna Convention on Consular Relations. It has also stood in gross violation of the ICCPR (International Covenant on Civil and Political Rights).

International Court of Justice

• It is the principal judicial organ of the United Nations (UN), with its seat at The Hague.
• It was established in 1945 after half a century of international conflict in the form of two World Wars 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.
• It is an autonomous body that is permanently in session, which 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 serve a three-year term, and can appoint administrative personnel as necessary.

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.

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.
• It 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.
• It also gives 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.

Drawbacks of the court

• Absence of binding, which means that the 193 member states of the ICJ do not necessarily have to accept the jurisdiction, since it raises the question of sovereignty of the countries.
• Organizations, private enterprises, and individuals cannot have their cases taken to the International Court of appeal a national supreme court’s ruling.
• Other existing international thematic courts, such as the International Criminal Court, are not under the umbrella of the International Court.
• Such dualistic structure between various international courts sometimes makes it hard for the courts to engage in effective and collective jurisdiction.
• It does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of cases, even those to which they consented to be bound.