PAKISTAN IN THE INTERNATIONAL COURT OF JUSTICE D O W N LO A D
„concerned‟ to „apply in full‟ the Geneva Conventions of 1949 with regards
to „wounded and sick, the prisoners of war and civilian population‟ . The
right to repatriation of the POWs is contained in Article 118 of the Geneva
Convention Relative to the Treatment of the Prisoners of War, and as per the
Commentary of the International Committee of the Red Cross, the right is
inalienable, which means that no conditions could be attached to this right to
repatriation. Amongst other issues, India and Pakistan kept negotiating the
repatriation of the POWs. In the meanwhile, Mr. Mujibur Rehman
demanded India to hand it over 195 POWs that Bangladesh wanted to
prosecute for crimes against humanity and genocide. Vide Presidential Order
No. 8 of 1972, the President of Bangladesh (which was by then not
recognized by Pakistan as an independent state) announced that it would
prosecute the „collaborators of Pakistan‟ for war crimes. In May 1973,
Pakistan instituted proceedings against India in the ICJ. As a provisional
measure, it asked the ICJ to direct India to hand over to Pakistan the 195
POWs being demanded by Bangladesh. The case was under consideration at
the ICJ, when on 28 th August, 1973, India and Pakistan signed Delhi
Agreement and agreed to repatriate the POWs including 195 wanted POWs
by Bangladesh. The agreement of repatriation of 195 POWs did not come on
easy terms. In return, the Indians and Bengalis negotiated the recognition of
Bangladesh by Pakistan. The ICJ did not decide on the issue and the case
was removed from the list of the ICJ on the request of Pakistan. An
important point, which may merit mention here, is that Pakistan based its
claim, inter-alia, on the ground of exclusive claim of jurisdiction under
Article VI of the Convention on the Prevention and Punishment of the
Genocide 1947 to which Pakistan and India both were signatories. Pakistan‟s
claim was legally sound as by then it had not recognized Bangladesh: the
strength of the argument, however, was not tested in the ICJ.
3. THE AERIAL INCIDENT CASE (1999):
On 10th August, 1999, Pakistan‟s naval airplane Atlantique was shot down
by Indian Air Force. The defence of India was that the airplane had violated
its airspace. The matter was taken to the ICJ by Pakistan with a claim of 60
million dollars in reparation. India objected to the jurisdiction of the ICJ.
PAKISTAN IN THE INTERNATIONAL COURT OF JUSTICE D O W N LO A D
The claim of Pakistan was based on Article 17 of the General Act for Pacific
Settlement of International Disputes signed at Geneva on 26 th September,
1928 by the then Government of India. India took exception to the
succeeding legal consequences of the General Act after it was declared
independent in 1947. The ICJ discounted India‟s exception and granted its
plea for not being bound by the General Act of 1928. The case started on
st st
21 September, 1999 and ended on 21 June, 2000.
4. OBLIGATIONS CONCERNING NEGOTIATIONS RELATING TO
THE NUCLEAR ARMS RACE AND TO NUCLEAR
DISARMAMENT CASE (2015):
In an advisory case on the Legality of the Threat or Use of Nuclear Weapons
on 8th July, 1996, the ICJ, while analyzing Article VI of the 1968 Non
Proliferation of Nuclear Weapons Treaty, observed:
“There exists an obligation to pursue in good faith and bring t o a
conclusion negotiations leading to nuclear disarmament in all its
aspects under strict and effective international control”.
Based on the „obligation‟ noted in advisory case, the Republic of the
Marshal Islands (RMI) filed the case in the ICJ calling upon Pakistan to
negotiate in good faith the NPT. The legal principles on which the claim is
constructed are Erga Omnes (towards all) and the customary international
law. The specific requests of RMI against Pakistan are:
a. That Pakistan has violated and continues to violate international
obligation to negotiate in good faith nuclear disarmament control;
b. That Pakistan has violated and continues to violate its obligation with
respect to cessation of nuclear arms race;
c. That Pakistan has violated its international obligation by blocking
negotiations on a Fissile Materials Cut off Treaty.
th
On 14 July, 2015, the ICJ issued a press release stating therein that
Pakistan‟s request for extending time to file reply to the application of RMI
st
has been granted. Pakistan has committed to submit its reply by 1
December, 2015. It may also be noted that the RMI has also instituted
PAKISTAN IN THE INTERNATIONAL COURT OF JUSTICE D O W N LO A D
similar legal proceedings against India and the UK.
ANALYSIS
To be fair, a detailed analysis of the experience of Pakistan in the ICJ
warrants an independent research project. Based on the information
discussed above, the following points may be worth stating:
1. The ICJ is the principal judicial organ of the UN and by virtue of its
composition and background, the expectations placed upon it and the role it
is expected to play in the maintenance of international security cannot be
overemphasized. In its working, it has rarely examined the real disputes. It ‟s
over legalistic and formal approach has upended substantial issues, and more
often than not, it has chosen to pettifog in the procedural maze of the
international disputes.
2. The ICJ is excessively expensive and the developing countries like Pakistan
have to think hundred times before they can institute legal proceedings in it:
the developing countries are at a disadvantage before even the proceedings
start.
3. In a developing country where the rule of law is not fully established, it is
very difficult to see things from legal perspective. In Pakistan, the policy
making is embedded in emotional and political settings and the appreciation
of legal matters is not fully employed in carving out a stance. The analysis of
the cases narrated above shows that Pakistan chose to go to the ICJ in fits
and starts not as a planned strategy to get a matter resolved.
CONCLUDING REMARKS
For the developing countries, the language of international relations may be
international law and not the military prowess. In case of Pakistan, given the
proliferation of fora for global and administrative justice in the form of the
International Criminal Court, the ICJ, the International Centre for Settlement of
Investment Disputes (ICSID) and the EU ‟s Commission that monitors GSP Plus
scorecard, there is a strong case for it to institutionalize the input of
international legal studies into its policy making. It can also patronize
universities to produce scholars of international law to disseminate Pakistan ‟s
narrative on different issues through discourse in academia.
