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May 13, 2017

ICJ lacks jurisdiction in Kulbhushan case

Top Story

May 13, 2017

ISLAMABAD: Despite the fact that on March 29 Pakistan had informed the International Court of Justice (ICJ) that it was withdrawing the jurisdiction of the court from all issues related to its domestic and national security, why did the court entertain a plea from India over the Kulbhushan Jadhav case?

Also legal experts ask, normally it can take years for the ICJ to entertain a plea, why did the court take up New Delhi’s plea in a matter of days, specially when Pakistan in its March 29 notification had taken away certain matters from the jurisdiction of the court? When the Indian government wilfully misinterpreted a statement from the ICJ, and leaked to its media that the ICJ had granted a "stay" to the execution on the Indian spy, why did not the ICJ issue a clarification of this misinterpretation?

Pakistan has been mulling over its official response in brainstorming sessions for the past two days where a cross section of experts have helped to frame a response.

When asked if Pakistan was aware that the ICJ did not have jurisdiction in the latest case against it, why it had not made this public an official responded, “We do not want to give a knee-jerk response at this stage. Shortly a formal statement from the government will be issued”.

Pakistan’s decision had come after the 2016 Marshall Islands case against India, Pakistan and the UK for not taking steps to end the nuclear arms race. Pakistan had won this landmark case along with the other two countries.

The United States withdrew from the ICJ’s compulsory jurisdiction in 1986 after the court ruled it owed Nicaragua war reparations. 

The UN notification as confirmed to The News by a senior Foreign Office official notifies that the ICJ would no longer have jurisdiction over: “Disputes relating to or connected with any aspect of hostilities, armed conflicts, individual or collective self-defence or the discharge of any functions pursuant to any decision or recommendation of international bodies, the deployment of armed forces abroad, as well as action relating and ancillary thereto in which Pakistan is, has been or may in future be involved.”

Meanwhile, the ICJ has notified that it will hold a public hearing on May 15 in the case pertaining to the conviction of Indian spy Kulbhushan Jadhav.

It was Pakistan’s permanent representative to the United Nations Dr Maleeha Lodhi who signed Pakistan’s notification to the ICJ that the “Government of the Islamic Republic of Pakistan reserves the right at any time, by means of a written notification addressed to the Secretary-General of the United Nations, and with effect from the moment of such notification, either to amend or terminate this Declaration. This Declaration revokes and substitutes the previous Declaration made on 12 September 1960”.

The Secretary-General of the United Nations, acting in his capacity as depositary, had issued a notification giving Pakistan’s stance.

The operative part of the notification states further, “President of the Islamic Republic of Pakistan to declare that [the] Government of the Islamic Republic of Pakistan recognizes as compulsory ipso facto and without special agreement in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice under the Statute of the International Court of Justice. Provided that this Declaration shall not apply to: a) disputes the resolution of which the parties shall entrust to other tribunals by virtue of agreements already in existence or which may be concluded in the future; or b) disputes relating to questions which fall essentially within the domestic jurisdiction of the Islamic Republic of Pakistan; c) disputes relating to or connected with any aspect of hostilities, armed conflicts, individual or collective self-defence or the discharge of any functions pursuant to any decision or recommendation of international bodies, the deployment of armed forces abroad, as well as action relating and ancillary thereto in which Pakistan is, has been or may in future be involved; d) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court; e) all matters related to the national security of the Islamic Republic of Pakistan; f) disputes arising under a multilateral treaty or any other international obligation that the Islamic Republic of Pakistan has specifically undertaken unless: i) all the parties to the treaty affected by the decision are also parties to the case before the Court, or ii) the Government of the Islamic Republic of Pakistan specifically agrees to jurisdiction, and iii) the Government of the Islamic Republic of Pakistan is also a Party to the treaty. g) any dispute about the delimitation of maritime zones, including the territorial sea, the exclusive economic zone, the continental shelf, the exclusive fishery zone and other zones of national maritime jurisdiction or the exploitation of any disputed area adjacent to any such maritime zone; (I.4) Attention: Treaty Services of Ministries of Foreign Affairs and of international organizations concerned.”