Why India went to ICJ after 46 yrs
The International Court of Justice (ICJ) late on Tuesday stayed the hanging of Indian national Kulbhushan Jadhav sentenced to death by a Pakistani military court on charges of spying.
The order came a day after India approached The Haguebased ICJ against the sentence by Pakistan’s field general court martial in April, sources said.
India has accused Pakistan of violating the Vienna Convention and said Jadhav was kidnapped from Iran where he was involved in business activities after retiring from the Indian Navy but Pakistan claimed to have arrested him from Balochistan on March 3, 2016.
AFTER 46 YEARS
This is the first time after 1971 that India has turned to the ICJ, established in 1945 by the United Nations charter, in a dispute with Pakistan.
In 1971, India withdrew Pakistan’s overflight rights after the hijacking of an Indian Airlines flight to Lahore in January.
Pakistan, citing the jurisdiction the International Civil Aviation Organisation, said India could not deny it the overflight as well as landing rights. The court ruled in its favour.
FEAR FOR KULBHUSHAN JADHAV’S LIFE
India moved the ICJ because it feared Pakistan could execute Jadhav without allowing him the legal remedies available to him in that country.
The Indian challenge is primarily based on Pakistan violating Vienna convention on consular relations. Among other things, the agreement allows diplomatic representatives to visit their nationals being held prisoner by the host country. India also argued that Pakistan ignored a treaty on consular access. Senior advocate Harish Salve is representing India.
PAKISTAN’S FIRST MOVE
Before Tuesday, India had taken Pakistan to the ICJ only once. Pakistan has done it twice. The first time was in 1973. Pakistan wanted to stop the repatriation of 195 of its nationals to Bangladesh from Indian custody after the 1971 war. But, a year later Pakistan withdrew the case. The 1971 India-Pakistan war led to the creation of Bangladesh.
THE SECOND MOVE
Pakistan took India to the ICJ in 1999 after its military plane was shot down in Indian air space over the Rann of Kutch. India contested the case on the issue of jurisdiction and the ICJ upheld New Delhi’s position.
WHY INDIA IS SHY OF ICJ
There is a reason why India hasn’t moved the ICJ in all these years. In September 1974, India spelt out the matters over which it would accept the jurisdiction of the ICJ, replacing a similar declaration made in 1959.
Among the matters over which India does not accept the ICJ jurisdiction are: “Disputes with the government of any state which is or has been a member of the Commonwealth of Nations.”.
Pakistan is a member of the Commonwealth, a grouping of 53 countries most of which are former British colonies. Also, moving the ICJ amounts to taking disputes with Pakistan to a multilateral forum, which New Delhi tends to avoid.
But, India believes the ICJ can look into Jadhav’s case as both the countries are signatories to the optional protocol of the Vienna convention on consular relations (VCCR). The protocol says any dispute arising out of the interpretation or application of VCCR shall lie within the jurisdiction of the ICJ. The ICJ was established by the UN charter in 1945. The statute of ICJ guide its work. All UN members are technically parties to ICJ but each country has made a declaration on the issues in which they would accept the court’s jurisdiction.
Its role is to settle legal disputes and give advice on questions referred to it by various UN bodies and specialised agencies. It has 15 judges, who are elected for a nine-year term by the UN general assembly and security council.
PAKISTAN IS A MEMBER OF THE COMMONWEALTH, A GROUPING OF 53 COUNTRIES MOST OF WHICH ARE FORMER BRITISH COLONIES. ALSO, MOVING THE ICJ AMOUNTS TO TAKING DISPUTES WITH PAKISTAN TO A MULTILATERAL FORUM, WHICH DELHI AVOID S