KULBHUSHAN CASE A TEST FOR ICJ
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| Photo of Indian naval officer Kulbhushan Jadhav who has been sentenced to death by a Pakistani court on charges of ‘espionage’. |
The Kargil war was barely over. Tensions between India and Pakistan were already running high when on August 10th 1999 a Pakistan Navy aircraft on a routine training flight along Indian border near Run of Kutch was shot down. India had acted in violation of Pakistan's airspace and Pakistan had suffered not only the loss of aircraft but also of 16 lives.
On September 21st Pakistan took the matter to the International Court of Justice (ICJ), filing a petition under UN Charter and General Act of 1928. In its final verdict, the ICJ noted:
"... the Islamic Republic of Pakistan (hereinafter called "Pakistan") filed in the Registry of the Court an application instituting proceedings against the Republic of India (hereinafter called "India") in respect of a dispute relating to the destruction, on 10 August 1999 of a Pakistani aircraft. In its Application, Pakistan founded the jurisdiction of the Court on Article 36, Paragraphs 1 and 2, of the Statute and the declarations whereby the two Parties have recognized the compulsory jurisdiction of the Court.
"Pursuant to Article 40, paragraph 2, of the Statute, the Application was forthwith communicated to the Indian Government by the Registrar; and, pursuant to Paragraph 3 of that Article, all States entitled to appear before the Court were notified of the Application."
Pakistan requested the Court to judge and declare as follows:
" that the acts of India (as stated above) constitute breaches of the various obligations under the Charter of the United Nations, customary international law and treaties specified in the body of this Application for which the Republic of India bears exclusive legal responsibility;
"That India is under an obligation to make reparations to the Islamic Republic of Pakistan for the loss of the aircraft and as compensation to the heirs of those killed as a result of the breaches of the obligations committed by it under the Charter of the United Nations and relevant rules of customary international law and treaty provisions."
International Court of Justice named this case as AERIAL INCIDENT OF 10 AUGUST 1999 (PAKISTAN v. INDIA). From Pakistan side, the case was pleaded by Mr. Jamshed A. Hamid, Legal Adviser, Ministry of Foreign Affairs, Mr. Aziz A. Munshi, Attorney General for Pakistan and Minister of Law and Mr Pirzada as Adhoc judge. Public sittings were held from 3 to 6 April 2000, at which the Court heard oral arguments and replies of: For Pakistan: Mr. Hamid, H.E. Mr. Munshi, Sir Elihu Lauterpacht, Dr. Kemicha. For India: H.E. Mr. Menon, H.E. Mr. Sorabjee, Mr. Brownlie, Mr. Pellet, and Dr. Sreenivasa Rao.
India vigorously challenged the jurisdiction of the ICJ and pleaded to dismiss the case. In its reply India stated that:
"the General Act of 1928 is no longer in force and that, even if it was, it could not be effectively invoked as a basis for the Court's jurisdiction".
It argued that numerous provisions of the General Act, and in particular Articles 6, 7, 9 and 43 to 47 thereof, refer to organs of the League of Nations or to the Permanent Court of International Justice; that, in consequence of the demise of those institutions, the General Act had "lost its original efficacy"; that the United Nations General Assembly so found when in 1949 it adopted a new General Act; that "those parties to the old General Act which have not ratified the new act" cannot rely upon the old Act except "'in so far as it might still be operative', that is, in so far . . . as the amended provisions are not involved"; that Article 17 is among those amended in 1949 and that, as a result, Pakistan cannot invoke it.
To oppose General Act1928, India presented its foreign minister‘s statement declaring that:
"I have the honor to refer to the General Act of 26th September 1928 for the Pacific Settlement of International Disputes, which was accepted for British India by the then His Majesty's Secretary of State for India by a communication addressed to the Secretariat of the League of Nations dated 21st May 1931, and which was later revised on 15th February 1939. The Government of India never regarded themselves as bound by the General Act of 1928 since her Independence in 1947, whether by succession or otherwise. Accordingly, India has never been and is not a party to the General Act of 1928 ever since her Independence.
India also invoked Simla Agreement
India argued that the Simla Accord "is no more than an arrangement between India and Pakistan first to enter into negotiations in case of any difference, and following such negotiations, to refer the matter to any other method of settlement to the extent that there is any further and specific agreement between the parties"."), the two States declared themselves "resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon " India also referred to Lahore Declaration of 1998 wherein Prime Ministers Nawaz Sharif and Atal Behari Vajpai had agreed to resolving issues in bilateral talks and reiterated the Simla Accord.
On June 21st 2000 International Court of Justice announced its verdict in favor of India and declared that the court had no jurisdiction to hear this case. Verdict as on website of ICJ is as under:
As regards India and Pakistan, that obligation was restated more particularly in the Simla Accord of 2 July 1972, which provides that "the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them". Moreover, the Lahore Declaration of 21 February 1999 reiterated "the determination of both countries to implementing the Simla Agreement".
Accordingly. the Court reminds the Parties of their obligation to settle their disputes by peaceful means, and in particular the dispute arising out of the aerial incident of 10 August 1999, in conformity with the obligations which they have undertaken (cf. Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of' the Court, Judgment, 1. C. J. Reports 1998, p. 456, para. 56). 56. For these reasons, By fourteen votes to two, that it has no jurisdiction to entertain the Application filed by the Islamic Republic of Pakistan on 21 September 1999. IN FAVOUR : President Guillaume ; Vice-President Shi ; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, ParraAranguren, Kooijmans, Buergenthal; Judgc ad hoc Reddy; AGAINST: Judge Al-Khasawneh; Judge ad hoc Pirzada
17 years later, India who opposed Pakistan’s case by invoking bilateralism under Simla Accord and Lahore Declaration has knocked at the door of same court to seek provisional measures in Kulbhushan Sudhir Jadhav's case. Jadhav is an Indian naval officer, caught red handed from Pakistan’s Baluchistan province. Pakistan has tried Mr. Jhadav and a military court has handed down death sentence.
The International Court of Justice has fixed the first hearing on Monday 15 May 2017 in HAGUE. The court will hear the oral observations on the said date from both sides on the Indian request to grant a stay order against hanging of Mr. Jhadav. India has also prayed for a declaration of "egregious violations of the Vienna Convention on Consular Relations”.
According to several senior jurists it’s time for Pakistan to give India a taste of its own medicine of Simla Accord and Lahore Declaration which call for both countries to settle disputes bilaterally. For ages India has sought refuge behind these agreements to deny multilateral talks in case of Indian-held Kashmir and other outstanding issues. The jurist are of the view that India will lose this case. Others believe that this is going to be a test case for the International Court of Justice which disposed of Pakistan's case in 2000 accepting lack of jurisdiction. From Pakistan, Attorney General Mr. Ashtar Aosaaf will plead the case. Most independent analysts says that the Indian government needs a face saving device to placate its people and to be able to argue that it can protect and rescue its undercover agents in Pakistan and other hostile countries.
The hearing is around the corner. Pakistan appears determined to challenge the ICJ jurisdiction. The government appears confident that it can prevail on the same grounds as India did 17 years ago.
Writer Jabbar Chaudhary is senior Journalist in Pakistan and often write on Pak India relations
