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February 18, 2019

Kulbhushan case hearing in ICJ today

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February 18, 2019

LAHORE: The hearing in 48-year old Indian spy Kulbhushan Jadhav's case will commence at the International Court of Justice (ICJ) at the Peace Palace in Holland's capital The Hague from Monday (today)

Kulbhushan was sentenced to death by a Pakistani military court on espionage charges in April 2017, following which India moved the ICJ, whose 10-member bench had restrained Pakistan from executing the apprehended spy till the case was adjudicated. The high-profile Indian spy, a serving Commander in Indian Navy, was apprehended on March 3, 2016 after illegally crossing into Pakistan from Iran.

Following its spy's arrest, India had approached the ICJ for "egregious" violation of the provisions of the Vienna Convention on Consular Relations, 1963, by Pakistan in this case. The ICJ, the principal judicial organ of the United Nations, was founded originally in 1922 as the Permanent Court of International Justice, and was renamed in 1946 when it was incorporated into the United Nations.

Research conducted by the "Jang Group and Geo Television Network" shows that since its creation in 1946, some 168 cases have been filed by various United Nations' member countries till date at this forum, which is composed of 15 judges and has a twofold role.

Its first role is to settle, in accordance with international law, legal disputes between States submitted to it by them and, second, to give advisory opinions on legal matters referred to it by duly authorized United Nations organs and specialized agencies. The Court's official languages are English and French.

The ICJ primarily serves as a deciding body in international disputes when its requirements for jurisdiction are met. Its secondary purpose is to serve as in an advisory role to the world community.

Judgments delivered by the Court (or by one of its Chambers) in disputes between States are binding upon the parties concerned. Article 94 of the United Nations Charter provides that "each Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party."

However, as the July 13, 2004 edition of the "Guardian" and "Encyclopedia Britannica" reveal, not all countries have abided by its verdicts.

For example, Albania had refused to pay £843,947 in damages to the United Kingdom in the Corfu Channel Case of 1949, the United States had declined to pay reparations to government of Nicaraguain 1986 and in 2004, Israel had rejected the international court of justice's opinion on the wall in Palestine.

As far as the United States is concerned, it had rubbished and ignored the ICJ verdict in 1986 after it had lost a case to Nicaragua. The ICJ had delivered a firm judgment against the United States, ruling that its military interventions in Nicaragua were contrary to international law.

The United States had ignored the decision and had not even turned up to render arguments to the court or to hear its final decision. The "Guardian" had written: "In the Nicaraguan case, the US chose not to submit itself to the court's jurisdiction."

It is imperative to note that the ICJ judgments are final and without appeal. If there is a dispute about the meaning or scope of a judgment, the only possibility is for one of the parties to make a request to the Court for an interpretation. In the event of the discovery of a fact hitherto unknown to the Court which might be a decisive factor, either party may apply for revision of the judgment.

As regards advisory opinions, it is usually for the United Nations organs and specialized agencies requesting them to give effect to them or not, by whichever means they see fit. Only States are eligible to appear before the ICJ in contentious cases.

The Court has no jurisdiction to deal with applications from individuals, non-governmental organizations, corporations or any other private entity. It cannot provide them with legal advice or help them in their dealings with national authorities.

However, a State may take up the case of one of its nationals and invoke against another State the wrongs which its national claims to have suffered at the hands of the latter; the dispute then becomes one between States.

The ICJ website states: "The Court can only hear a dispute when requested to do so by one or more States. It cannot deal with a dispute on its own initiative. Neither is it permitted, under its Statute, to investigate and rule on acts of sovereign States as it chooses.

The States involved in the dispute must also have access to the Court and have accepted its jurisdiction, in other words they must consent to the Court's considering the dispute in question. This is a fundamental principle governing the settlement of international disputes, since States are sovereign and free to choose how to resolve their disputes. "

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