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Jamia Millia Islamia

Public International Law Project

Project topic: ‘India and International Court of Justice’.

Course Name:B.A.L.L.B(Regular), 4th Semester.

Rollno.- 53

Submitted to:Dr. Noorjahan Ma’am .

Prepared by: Sarthak Sharma

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Introduction:

The International court of Justice(ICJ) was established on 26th June,1945 as a fruit beared out of
the San Francisco Conference in 1945. The ICJ is the successor of Permanent court of
International Justice which was established in 1920 by league of Nations which preceded the
current United Nation. After the end of Second world war both League of Nations and
Permanent court of International justice were dissolved and were replaced by United nations and
ICJ respectively. However, the Statute of ICJ forms its basis and its major part from that of its
Predecessor. Presently it has 193 member states with India being its original member since its
very inception. India was among the original members of United Nations that signed the
Declaration by United Nations at Washington D.C in October,1944 and it also participated in the
United Nations Conference on International Organization held at San Francisco from 25 April to
26 June,1945 that eventually led to the establishment of ICJ. The ICJ which is also called as
world court in some parts of the world is the only organ/body of the United Nations which is
present outside New York. It is headquartered in The Hague in Netherlands. The Fifteen Judges
bench of ICJ sits at Peace palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands.1

Coming to the Relationship between India and the International Court of Justice, as already
stated that India is one of the Original member of this renowned and esteemed temple of Justice
which has world’s widest and largest Jurisdiction and is literary at the utmost Apex Level in the
field of Law courts. The topmost position in the ICJ is that of the President and India has been
Lucky enough to represent this top job once out of the twenty five terms of President, this
esteemed institution had ever had. Nagendra Singh had been the only Indian till now to be the
President of ICJ who had served on the chair between 1985-1988. The first President of ICJ was
Jose Gustavo Guerrero who belonged to EL Salvador while the Current president is Abdulqawi
Yusuf who is a citizen of Somalia. The term of judges at International Court of Justice is 9 years
and various prominent Indian Judges such as Maharaj Sri Nagendra Singh, B.N. Rao, R.S pathak
and Dalveer Bhandari have been Judges at the ICJ. Currently, out of the fifteen judges at the ICJ,
Dalveer Bhandari is the sole Indian National present at the Bench.

1
Official Address of ICJ as printed on its orders, Press Release.

2
India as a Party at ICJ:

 Portugal vs India (1957)2

This case is regarding the right of passage of Portugal government over the Indian Territory. In
the present matter the portuguese government submitted an application in the court requesting it
to recognize and declare that portugal was the holder or beneficiary of a right of passage between
its territory of Damao and its enclaves of Dadra and Nagar-Aveli. The Applicant(Protuguese
Government) demanded removal of all restrictions and obstructions made by the Indian
Government and pleaded that it deserved absolute right of transit of its persons and goods,
including Armed forces in its enclaves situated in and around Dadra and Nagar Aveli over which
it had absolute sovereignity. The application also referred to the declaratory provision under
which the Portugal and Indian government have accepted the compulsory jurisdiction of the
court.3 In response to the application moved by the Portuguese Government in the world court
the government of India raised six Preliminary Objections to the jurisdiction of the court. In its
Judgement dated 26 November,1957 the court rejected 1st to 4th Objections made by the Indian
Counsels, however the 5th and the 6th Objections were joined on merits by 13:4 and 15:2
majority. Ultimately the decision of the court came in favour of Portugal and it held that a Right
of passage does exists in regional customs. Dissenting Opinions were given by Judge M.C
Chagla, Judge Helge Klaestad and Vice president Judge Badawi. The area of law dealt in this
case was that of customary law, and the issue raised was ‘ can there be regional customary law?’
The court while dealing with the plea of Indian counsels that stated that practice between only
two states was not sufficient to form a local custom was rejected by the court. The court rejected
this reasoning, finding no reason why a century and a quarter old practice based on mutual rights
and obligations was insufficient for local custom to arise. Thus, this local practice prevailed over
any general rule. The Ratio of this case was also followed in the North Sea Continental Shelf
case.4

2
Right of Passage over Indian Territory case.[1960] ICJ Rep 6

3
Article 36, Paragraph 2 of the Statute of ICJ.
4
Federal Republic of Germany v Denmark and v Netherlands(1969) ICJ Rep 3

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 India vs Pakistan (1972)5

In this matter Appeal was filed by the government of India wherein it raised preliminary
objections to the jurisdiction of the council of International Civil Aviation Organisation, which
was subsequently rejected and in turn india Appealed before the World Court. The facts that led
to the above case were, that, on 4th Feburary, 1971 an Indian aircraft was hijacked and was
diverted to Pakistan by some Terrorists due to which conflict was raised between the two
neighbouring nations and India in response suspended all pakistani Civil aircraft from entering
its overflight territory. This move by India was contended by pakistan as violative of the 1944
Convention on International Civil aviation and also of the International Air services Transit
agreement that were both signed in Chicago, and thus complained to the ICAO council, over
whose Jurisdiction India raised an Appeal in the ICJ. The ICAO council in its order dated 29th
July,1971 decalred itself competent in the abovesaid matter and dismissed the preliminary
Objection raised by the Indian Government. Subsequently on 30th August, 1971 India filed an
appeal against the order of the ICAO council in the world court under Article 84 of the Chicago
convention. The Court while delivering its verdict on 18 August,1972 upheld the competency of
ICAO council to entertain the Complaint and the Application filed before it by the Government
of Pakistan, thus rejecting the Plea from the Indian side. Furthermore, the court also rejected the
objection made from the Pakinstani side questioning the competency of the court to entertain the
appeal filed by India and held that it has the Jurisdiction in regard to this matter. However, the
Appeal by was rejected by the court by 14:2 Majority, dissenting opinion being of Judge
Morozov and Judge Nagendra Singh.

 Pakistan vs India (1973)6

In this case Appeal was filed by Pakistan against India in May, 1973 when it alleged India to
Handover 195 Pakistani Prisoners of Indo-Pak war to Bangladesh and try them for acts of
genocide and crimes against Humanity. However, later on negotiations took place between the
two nations and the Court removed the case from the list by an order dated 15the december,
1973.

5
Appeal relating to the Jurisdiction of the ICAO Council.
6
Trial of Pakistani prisoners of war, ICJ Rep 328.

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 Pakistan vs India (2000)7

The above mentioned matter arose due to the Aerial incident that happened on 10th August, 1999
in which a Pakistani naval aircraft was allegedly shot down by the Indian Air force. In response
to this action of India, the Pakistani Government moved an application instituting proceedings
against Republic of India. India in turn contended its preliminary objection that it was not
subjected to the Jurisdiction of the court. It was observed by the court that Pakistan had strongly
relied on Article 17 of the General Act for Pacific Settlement of International disputes, signed at
geneva on 26th sepetember,1928 and on Article 36, para 1 of the Statute. The question was
forwarded in the court that wheather the General Act of 1928 applies to the two nations, even
after their accession to Independence in 1947 as they have never explicitly accepted the same.
The ICJ in its final order dated 21 June,2000 by a majority of 14:2 upheld the Indian contention
and declared that it had no jurisdiction to adjudicate upon the dispute brought before it by
Pakistan against India. The Judgement said there is “a fundamental distinction between the
acceptance by a state of the court’s Jurisdiction and the compatibility of particular acts with
International law.” The court directed the states that its lack of Jurisdiction did’nt relieve states
of their obligation to settle their disputes by peceful means.

 Marshall Islands vs India (2016)8

In the Present matter the Government of Marshall Islands filed a number of Applications,
including one against India on 24th April,2014. In addition to India it had also filed application
against UK and Pakistan. The Appellant alleged India of not fulfilling its obligtions relating to
the cessation of the nuclear arms race and to nuclear disarmment. The court ruled with 9:7
Majority in favour of Indian advocacy and thus accepted the Indian argument that the court lacks
Jurisdiction over this matter. The court said “The existence of a legal dispute between two states
is a precondition for the court to take up a case involving them, but India’s advocacy of
disarmment showed there was none”.

7
Aerial incident of 10 August,1999
8
Obligations Concerning negotiations relating to Cessation of the Nuclear Arms race and to Nuclear Disarmment.

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 India vs Pakistan (2019)9

In this case Appeal was filed from the Indian contingent alleging Pakistan of breaching the
provisiosns of Article 36 of the Vienna Convention on Consular relations,1963 by not providing
him access to adequate legal means and not mking him accessible to the consular officers of
India. India prayed before the court to annul the decision of the Pakistan’s Military court in
respect to this matter. The matter is currently in process and the verdict by the court is still
awaited. The last proceeding were held on 18th Feburary,2019. The Court had already restrained
Pakistan from executing Jhadhav till the adjudication of the case. India had maintained its
contention in that Jhadhav was kidnapped from Iran where he had business interests after retiring
from the navy whereas Pakistan had alleged that Kulbhushan Jadhav is a spy, a Research and
Analysis wing (RAW) agent, working in Baluchistan. Pakistan’s contention has been that ICJ
has no Jurisdiction over this matter.

Coclusion:

It can be concluded that the World court or International court of Justice(ICJ) is the only court in
the whole world of a universal character with general jurisdiction. In respect to India, the ICJ had
been of keen importance since India became a Sovereign republic. It is an interesting fact that till
now India has been Party to ICJ at six different occasions and out of these, in four instances the
opposite party to India has been Pakistan. Various Proficient Indian Lawyers like Harish Salve
who is one of India’s most expensive lawyers have represented at this esteemed institution.
Moreover, many Indian Judges and Jurists have also served at the ICJ including the current
Justice Dalveer Bhandari. Nagendra singh, Raghunandan Swarup Pathak, BN Rao have been
some other proficient names in this regard. With the advancement in Technology and Science
and increasing rate of diplomatic and other international relations, the workload and importance
of the ICJ is also positively increasing in the universal arena.

9
Kulbhushan Jhadhav Case.

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Bibliography:

 Official orders and Press Releases by the ICJ


 International law & Human Rights, Dr. S.K. Kapoor
 International courts and tribunals, William Schabas
 Public International law, S.K Verma