The Kulbhushan Jadhav case is the fourth time the International Court of Justice would be adjudicating a case involving India and Pakistan. In the three previous cases, the ICJ has been careful in not passing judgments that could be seen as one-sided.
The last time the two countries approached the ICJ was in September 1999, when Pakistan approached the top UN court over the shooting down of a Pakistani maritime reconnaissance aircraft Atlantique by the Indian Air Force(IAF) in the Kutch region on August 10, 1999, killing all 16 naval personnel on board. Pakistan claimed the plane was brought down in its air space and sought $60 million in damages from India for the incident.
On June 21, 2000, the International Court of Justice (ICJ) ruled (14-2) that it lacks jurisdiction to adjudicate the dispute brought by Pakistan against India.
On November 19, 1999, the Court had decided that the written pleadings would first address the question of the jurisdiction of the Court in the case.
Pakistan maintained that Indian air force helicopters violated its territorial integrity by visiting the aircraft’s crash site inside Pakistan territory, in an attempt to pick up items from the debris immediately after the incident.
Pakistan also claimed that India’s actions constituted breaches of the 1991 Agreement on Prevention of Air Space Violations between both countries for which India must bear international responsibility.
Pakistan asked the Court to hold that India is obligated to make reparations to it for the loss of the navy aircraft and to the heirs of the Pakistani servicemen.
India had argued that the court did not have jurisdiction in the matter, citing an exemption it had filed in 1974 to exclude disputes between India and other Commonwealth states, and disputes covered by multilateral treaties.
The case was thrown out by the ICJ on the issue of jurisdiction and not on merits. Both parties had agreed that the question of jurisdiction would be decided first and only then would the issue of merits be taken up.
Notwithstanding its rejection of jurisdiction, the ICJ reminded both parties that the international obligations which they have undertaken still require that they seek a peaceful settlement of their disputes in good faith, including in particular the dispute arising out of the shooting down of the helicopter.
In May 1973, Pakistan filed proceedings against India concerning 195 Pakistani prisoners of war whom, according to Pakistan, India proposed to hand over to Bangladesh, which was planning to try them for acts of genocide and crimes against humanity.
India stated that there was no legal basis for the Court’s jurisdiction in the matter and that Pakistan’s application was without legal effect. The Court held public sittings to hear observations on the subject. India was not represented at the hearings.
In July 1973, Pakistan asked the Court to postpone further consideration of its request in order to facilitate negotiations with India. Before any written pleadings were filed, Pakistan told the Court that negotiations had taken place with India and the issue had been resolved bilaterally. Islamabad requested the Court to discontinue the proceedings.
In February 1971, India approached the top UN court following an incident involving the diversion to Pakistan of an Indian aircraft, which led to New Delhi suspending flights over its territory by Pakistan civil aircraft.
Pakistan told the court that this was in breach of the 1944 Convention on International Civil Aviation and the International Air Services Transit Agreement and filed a complaint with the Council of the International Civil Aviation Organization (ICAO).
India raised objections to the jurisdiction of the Council, but these were rejected, after which India appealed to the Court. During the written and oral proceedings, Pakistan contended that the Court was not competent to hear the appeal.
In its Judgment of August 18, 1972, the Court found that it was competent to hear the appeal of India. It decided that the ICAO Council was competent to deal with the Application filed by India and the Complaint by Pakistan, and accordingly dismissed the appeal by India.
