India, Pak at loggerheads over ICJ jurisdiction

India and Pakistan have always used legal caveats to prevent one another from using the mechanism of the International Court of Justice to act against them — on the ground that ICJ does not have jurisdiction on matters involving the two Commonwealth countries.

In September 1974, New Delhi made it clear that India does not accept the ICJ’s jurisdiction over “disputes with the government of any state which is or has been a member of the Commonwealth of Nations”.

On August 10, 1999, Pakistani navy’s Atlantique plane was shot down for straying into Indian air space over the Rann of Kutch. On September 21, 1999, Pakistan instituted proceedings before the ICJ against India regarding the destruction of the  aircraft.

Pakistan relied on Article 17 of the General Act for Pacific Settlement of International Disputes, signed in Geneva on September 26, 1928, on the declarations of acceptance of the compulsory jurisdiction of the court made by the parties and on para 1 of Article 36 of the court’s statute.

But India reiterated its stand outlined by the declaration of 1974. Finally, in June 2000, the ICJ said India’s declaration contained, inter alia, a reservation according to which “disputes with the government of any state which is or has been a member of the Commonwealth of nations” are excluded from the court's jurisdiction.

Similarly, India could not sue Pakistan over the murder and mutilation of Captain Saurabh Kalia and five other soliders during the Kargil War in 1999. 

This time, India has taken Pakistan by surprise.  It has knocked at the doors of the ICJ at The Hague to pressurise Pakistan from carrying out its military court’s verdict handed to Kulbhusan Jadhav, a former Indian naval officer, held for spying.

This was after Islamabad refused consular access to him. 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), which deals with facilities that are to be provided to anyone held in a foreign country.

The protocol says any dispute arising out of the interpretation or application of VCCR shall lie within the jurisdiction of the ICJ.