International

What is the ICJ's role in the Kulbushan Jadhav trial?

A horse carriage stands in front of the Peace Palace that houses the ICJ in The Hague in 2013.   | Photo Credit: Reuters

The International Court of Justice on Monday ruled that Pakistan’s treatment of Indian national, Kulbhshan Jadhav, is a gross violation of international laws and stalled his execution. In doing so, the ICJ has opened a wide debate about its origins, operations and binding value of its judgements.

Here’s a low-down on the International Court of Justice:

What is the ICJ?

The principal judicial wing of the United Nations, the ICJ was established in June, 1945 by the Charter of the United Nations. It is the only organ of the UN that is not headquartered in New York. The seat of the Court is in the Peace Palace in The Hague, Netherlands.

It consists of 15 judges elected for a period of 9 years by the UN General Assembly and the Security Council. Once elected, the judges cease to be representatives of their countries and functions as officers of the Court.

The Court’s current president is Justice Ronny Abraham of France, and Justice Dalveer Bhandari from India is among the 15 members.

Who are its members?

All members of the UN are de facto members of the ICJ. Accordingly, India was among the founding members when the ICJ was established in 1945. Pakistan became a member after a month of its independence on 30 September 1947.

However, as per the UN Charter, a non-member state can be included in the ICJ as a party to a dispute on the recommendation of the Security Council and the General Assembly.

What are its origins?

The creation of the ICJ is the culmination of multi-pronged efforts aimed at establishing peace, stability and international security. After World War I, the League of Nations was established as a measure to avoid a second such war. In accordance with this spirit, Article 14 of the League of Nations called for the establishment of a court to solve international disputes in 1920. This became a reality when the Permanent Court of International Justice (PCIJ) was founded at the Peace Palace inThe Hague in Netherlands in 1922.

However, the beginning of the World War II in 1939 was a strong indication of the failure of theLeague of Nations. Moreover, the war meant the role of PCIJ was all but relevant and the court for some years now had experienced diminished activity.

The Dumbarton Oaks and San Francisco Conferences held by the Allied powers of WWII in 1944-1945 period recognised the growing need for an international body that would work impartially to protect ‘succeeding generations from the scourge of war’. In view of this, a UN Charter was adopted which legitimised the established of a UN body and 6 principal organs, including the International Court of Justice.

What is its jurisdiction and binding value?

The ICJ is a world court with dual jurisdictional powers: advisory jurisdiction and jurisdiction in contentious cases. The former relates to the jurisdiction of the Court in providing legal opinions and recommendations on matters refereed to it by the organs and specialised agencies of the UN. Jurisdiction in contentious cases arises when disputes of a legal nature are submitted to it by the States. It has jurisdiction to rule in disputes pertaining to UN member states.

India and Pakistan are signatories to the Optional Protocol of the Vienna Convention concerning Compulsory Settlement of Disputes. As per the Protocol, all disputes relating to the interpretation and/or application of the Vienna Convention on Consular Relations falls under “compulsory jurisdiction” of the ICJ.

The judgements of the ICJ are considered binding and are without appeal for the parties concerned. It is rare for a decision not to be implemented. However, the Court itself has no direct powers to ensure implementation of its judgements and members States can approach the UN Security Council for matters relating to non-compliance with ICJ rulings.

How does this relate to the Kulbushan Jadhav trial?

In a petition filed by senior advocate Harish Salve on May 8, India listed details of the Jadhav case and accused Pakistan of “egregious violation” of the Vienna Convention on Consular Relations. This includes Pakistan’s denial of information regarding Jadhav’s trial, demands for consular access that were repeatedly turned down over 15 times, and suggesting that access would only be granted in exchange for information about Jadhav’s life in India.

The Court has now directed the Pakistan Prime Minister “to act in such a way as will enable any order the Court may make on this request to have had its appropriate effects”. In saying so, the Court has effectively stayed his execution.

The Vienna Conventions on Consular Relations of 1963 is an international treaty that establishes and governs consular relations between independent states. Accordingly, a consul has two primary functions as emissary of an embassy:

    Protecting the interests of their countrymen in the host country.

    Furthering economic and commercial relations between the two States.

How is the ICJ different from the International Criminal Court?

The International Criminal Court (ICC) was established in July, 2002 as per the provisions of the Rome Statute of the International Criminal Court. The Court deals with four core international crimes which are genocide, crimes against humanity, war crimes and crimes of aggression and is allowed to act only when States are “unable” or “unwilling” to act by themselves.

While the ICC is charged with criminal prosecution of individuals involved in the above mentioned crimes, the ICJ is solely meant to address legal questions and disputes between States. Moreover, governing doctrines vary, with ICJ falling under the UN Charter and the Statute of the ICJ; the ICC is governed by the Rome Statute.

All members of the UN are de facto members of the ICJ while only 103 States that are party to the Rome Statute are members of the ICC.

The article has been edited for a factual error


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Printable version | Jan 22, 2022 7:08:34 PM | https://www.thehindu.com/news/international/what-is-the-icjs-role-in-the-kulbushan-jadhav-trial/article18419512.ece

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