Kulbhushan Jadhav And The ICJ: A Legal Analysis

How strong can be the International Court of Justice in giving relief to Kulbhushan Jadhav and his family? This vexed question of fact and law has engaged the attention of many students of law and legal practitioners and now it is increasingly felt in India that the effectiveness of ICJ is highly critical for global peace and progress in the 21st Century.

Under the United Nations regime, the ICJ otherwise known as the ‘world court’  is the “Principal Judicial Organ” charged with two primary functions, namely, to assist in the resolution of disputes between states and to provide advisory opinion to specified international originations. Established under the UN Charter, the court is governed by the Charter, the statute of the ICJ and the Rules of procedure adopted by the Judges and amended from time to time, as well as the Practice Directions adopted in October, 2001.

In terms of Article 93 of the UN Charter all members of the United Nations are automatically parties to the court’s statute. Non-Un members can also become parties to the courts statutes under article 93(2) of the Charter. Once a state is a party to the court’s statute it is entitled to participate in cases before the court. As per Article 38 of the ICJ statute while deciding cases the court needs to apply international conventions, international Custom and the general principles of law recognized by civilized nations. It also refers to academic  writings i.e the teachings of most highly qualified publicists of the various nations and previous judicial decisions, which though not binding, have great persuasive value.

On 14.04.1978 the ICJ, to streamline its functioning and having regard to chapter XIV of the charter of the united nations, and further having regard to the statute of the court annexed to the said charter and exercising powers in terms of Article 30 of the said statute has framed exhaustive Rules of Court (1978) laying down the procedure to invoke the jurisdiction of the ICJ.  Section D sub-section 1 of these Rules deal with interim protection proceedings. Article 73 and 74 of the 1978 Rules of Court provide as under:-

         Article 73

         “1.     A written request for the indication of provisional measures may be made by a party at any time during the course of the proceedings in the case in connection with which the request is made.

  1. The request shall specify the reasons therefore, the possible consequences if it is not granted, and the measures requested. A certified copy shall forthwith be transmitted by the Registrar to the other party.

         Article 74

  1. A request for the indication of provisional measures shall have priority over all other cases.
  2. The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency.
  3. The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it. The Court shall received and take into account any observations that may be presented to it before the closure of the oral proceedings.
  4. Pending the meeting of the Court, the President may call upon the  parties to act in such a way as will enable  any order the Court may make on the request for provisional measures to have its appropriate effects.”

In the case of Kulbhushan Jadhav the ICJ being prima facie satisfied about the merits of India’s case and the availability of its jurisdiction over the dispute has granted interim relief/provisional measures i.e. stay of execution of Kulbhushan Jadhav by invoking the provisions of the aforesaid articles. It is a matter of record that both India and Pakistan are signatories to the Vienna Convention on Consular Relations 1963 providing for consular assistance to their nationals who are facing trial in other counties and unequivocally and compulsorily conferring jurisdiction in the ICJ.  Additionally, the doctrine of “pacta sunt servanda” which is a well recognized doctrine in international law requires that treaties entered into in good faith have to be carried out in good faith and any breach thereof amounts to violation of international law. Examined from this back drop there is no manner of doubt that consular access to India has been denied even though it is well known that military tribunals in Pakistan are opaque and  operate in violation of national and international fair trial standards and fail to provide justice, truth and even proper remedies to under trials.

No doubt in the present case in terms of Article 36 of the ICJ statute the court has jurisdiction which has been recognized as compulsory ipsofacto and without special agreement. In almost identical fact-situation i.e. in the Lagrand case and in the case of Avena and other Mexican Nationals the ICJ has exercised its jurisdiction, stayed the execution and directed review and retrial.  The case of Kulbhushan Jadhav is a test case for the ICJ to dispel the impression that international law is the vanishing point of jurisprudence.

J.K.Das is a Senior Advocate in Supreme Court of India.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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  • Pranjal Kishore says:

    With respect, there is no ‘stay’ on the order. A communication under Article 74(4) as the one issued to Pakistan here is not binding. It is issued by the President. And not by the Court. So in theory, Pakistan could go ahead today and execute Jadhav. This will be without prejudice to the final decision regarding the violation of Article 36 VCCR. But there is no stay/interim/provisional measure as of today.

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