India at the International Court of Justice

Prelims

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The International Court of Justice (ICJ) stayed the execution of Indian national Kulbhushan Jadhav by Pakistan.

This is not the first time that India has argued at the ICJ.

There are five previous cases that India was involved in at the Hague court.

  • Right of Passage over Indian Territory
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    Appeal relating to the jurisdiction of ‘civil overfly’ treaties

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    Trial of Pakistani Prisoners of War

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    Aerial Incident of August 10, 1999

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    Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament

Right of Passage over Indian Territory

Portugal vs India, 1955

In 1955, Portugal was still in control of two territories on the Indian subcontinent – Dadra and what was then called Nagar-Aveli. According to Portugal, the government of India prevented it from exercising the ‘Right of passage’ in its own territory in July 1954. Therefore, Portugal said it was ‘thus placed in a position in which it became impossible for it to exercise its rights of sovereignty over the enclaves’.

In 1960, the ICJ ruled in India’s favour, saying that ‘Portuguese sovereignty over the enclaves was subject to the regulation and control of India’.

Appeal relating to the jurisdiction of ‘civil overfly’ treaties

India vs Pakistan, 1971

Under the International Civil Aviation Convention and the International Air Services Transit agreement, Pakistani civil aircraft had ‘civil overfly’ rights over Indian territory. That means, its civil aircraft were allowed to fly over Indian territory.

In 1965, due to hostilities between India and Pakistan, such overflights were briefly discontinued. However, by February 1966, the two countries decided to restart ‘civil overfly’.

In 1971, after an Indian plane was hijacked, New Delhi retaliated by banning overflights by Pakistani aircraft. Pakistan alleged that India was in breach of the two treaties and submitted a complaint to the International Civil Aviation Organisation (ICAO). India, however, maintained that despite restarting ‘civil overfly ‘in 1966, the two treaties themselves were never revoked, and the provision of ‘civil overfly’ was since 1966 only allowed as a part of a ‘Special Regime’.

India therefore appealed to the ICJ, saying the ICAO has no jurisdiction in the matter because the treaties in question were not revived. India also argued that the ‘dispute could be resolved without reference to any treaties and therefore lay outside the competence of ICAO’.

The ICJ ruled that the ICAO did have jurisdiction in the matter, but also pointed out that there were irregularities within the civil aviation organisation.

Trial of Pakistani Prisoners of War

Pakistan vs India, 1973

Pakistan instituted proceedings against India on charges of genocide against 195 Pakistani nationals who were held as Prisoners of War (POW) in Indian custody.

On December 11, 1971, India had called upon the Pakistani forces in erstwhile East Pakistan to surrender to the Indian Army, assuring them they would be treated with respect. That led to many Pakistani army personnel surrendering.

Pakistan, however, withdrew the case from ICJ in December 1973, citing negotiations with India.

Aerial Incident of August 10, 1999

Pakistan vs India, 1999

A Pakistani naval aircraft with 16 people on board was shot down by the Indian Army for violating Indian airspace. The incident took place in the Rann of Kutch area in August 1999, just a month after the Kargil war ended.

Pakistan took India to the ICJ claiming that it had breached several obligations under the United Nationscharter. Pakistan also asked for compensation from for India’s ‘unjustified action’, both for the aircraft and for the heirs of those killed. The case was however dismissed by the ICJ, which said it has no jurisdiction in the matter.

Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament

The Pacific nation of Marshall Islands moved the ICJ against India, Pakistan and the United Kingdom, in three different cases, on the issue of nuclear disarmament. Marshall Islands alleged that India ‘breached customary international law obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament’. Although India is not a signatory to the nuclear Non-Proliferation Treaty (NPT), it is implicitly expected to keep its nuclear stockpile from growing.

India objected saying there was no dispute between the two countries (disputes being a prerequisite for intervention by ICJ). India’s objection was upheld by the court, which also ruled that it “cannot proceed to the merits of the case”.

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Raja Raja Cholan
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