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ICJ to consider Kulbhushan Jadhav’s case

Jurisdiction of ICJ

International Court of Justice (ICJ) derives its jurisdiction from a voluntary declaration by each State that accepts its jurisdiction. Islamic Republic of Pakistan has filed a fresh declaration submitting to the jurisdiction of ICJ on March 29, 2017.
ICJ is the principal judicial organ of the United Nations. It was established by the United Nations Charter, signed in 1945 at San Francisco (United States), and began work in 1946 in the Peace Palace, The Hague (Netherlands).

The Court, which is composed of 15 judges, has a dual role: in accordance with international law, settling legal disputes between States submitted to it by them and giving advisory opinions on legal matters referred to it by duly authorized United Nations organs and specialized agencies.

Only States are eligible to appear before the Court in contentious cases. At present, this basically means the 192 United Nations Member States.

The Court has no jurisdiction to deal with applications from individuals, non-governmental organizations, corporations or any other private entity. It cannot provide them with legal counselling or help them in their dealings with the authorities of any State whatever.

However, a State may take up the case of one of its nationals and invoke against another State the wrongs which its national claims to have suffered at the hands of the latter; the dispute then becomes one between States.

Background of Kulbhushan Jadhav’s case

Pakistan allegedly arrested, detained, tried, convicted and sentenced to death an Indian National Mr. Kulbhushan Sudhir Jadhav, and he is currently under a death sentence handed out by a Military Court Martial without giving him consular access which is mandatory under Article 36 of Vienna Convention.
On 8 May 2017, India to protect Kulbhush Jadhav filed a petition before ICJ  and an application for interim measures.  ICJ had granted interim protection and has fixed today the hearing on main petition.

Possible Defence of Pakistan

There are two possible defences which Pakistan can raise to oust the jurisdiction of the International Court of Justice:

  1. Existence of Bilateral Treaty
  2. Grant of Consular access is against its national security.

Bilateral treaty:

The bilateral treaty between India and Pakistan merely fixes a 3 months time within which the consular access shall be granted to the prisoner. It does not supersede the Vienna Convention. Therefore it is going to be interesting to see the formulation of arguments by Pakistan on this defence.

National Security:

This defence is even more ludicrous. If this defence is granted then it will be open to all States which are signatories to Vienna Convention to say two words “National Security” like open sesme and get over with the obligation of Vienna Convention. Therefore even if plea of national security is raised, it must be obligatory upon the Pakistan to substantiate it with credible threat perception based on evidence and not a mere paranoia.

I am looking forward to watch the proceedings which are slated to be covered live.

 

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About Sandeep Bhalla

A lawyer, thinker, author, Linux/Ubuntu power user but often an economist or gardener or philosopher or cook or photographer depending upon the current thought and environment. View all posts by Sandeep Bhalla

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