Landmark ICJ Decisions — Kulbhushan Jadhav, Right of Passage

The International Court of Justice has, over seven decades, produced a small number of judgments and advisory opinions that no judiciary aspirant can afford to skim. Two of them touch India directly. The first is the Right of Passage Over Indian Territory case, the only contentious matter in which India was a respondent before the Court and the leading authority on local or bilateral custom under Article 38(1)(b) of the Court's Statute. The second is the Jadhav case, India's successful application against Pakistan under Article 36 of the Vienna Convention on Consular Relations, 1963. Around these two decisions sit a cluster of judgments and opinions that together build the doctrinal foundation of contemporary international law.

This chapter walks through nine landmark decisions in the order most useful to an exam-aspirant: the two India-facing cases first, then the leading authorities on the use of force, custom, jurisdiction and the law of the sea, and finally the principal advisory opinions. For the doctrinal background to each topic, the companion chapter on sources of international law sets out Article 38(1) of the ICJ Statute in full.

Jadhav case — India v. Pakistan, ICJ Reports 2019

The dispute arose out of Pakistan's arrest of Mr. Kulbhushan Sudhir Jadhav on 3 March 2016, on the suspicion that he was a serving Indian naval officer engaged in espionage and subversive activity. India was informed of the arrest only on 25 March 2016, after a delay of twenty-two days. Repeated requests for consular access were refused; the request was eventually made conditional upon India's assistance in the criminal investigation. On 10 April 2017 a Pakistani military court sentenced Mr. Jadhav to death.

India filed an application before the Court on 8 May 2017, founding jurisdiction on Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes attached to the Vienna Convention on Consular Relations, 1963 (VCCR). India alleged egregious violations of Article 36 of the VCCR — the article that creates the regime of consular notification, communication and access. The doctrinal background to the obligations under that article is set out in detail in the companion chapter on diplomatic and consular privileges and immunities.

By an order dated 18 May 2017 the Court indicated provisional measures, directing Pakistan to take all measures at its disposal to ensure that Mr. Jadhav would not be executed pending the final decision. The merits judgment was delivered on 17 July 2019.

The Court's findings on Article 36 VCCR

The Court rejected each of Pakistan's three preliminary objections — that India had abused the Court's process, that India had abused its rights, and that India should be denied relief under the doctrine of clean hands. On the merits the Court held that Pakistan had breached its obligations under Article 36(1) in three distinct ways:

1. by failing to inform Mr. Jadhav, without delay, of his rights under Article 36(1)(b);
2. by failing to inform India's consular post of his arrest and detention without delay; and
3. by denying India's consular officers access to Mr. Jadhav, contrary to their right under Article 36(1)(a) and (c) to visit, converse and correspond with him and to arrange for his legal representation.

On the meaning of "without delay" the Court reaffirmed that the phrase is to be understood as "immediately upon arrest and before interrogation." A delay of three weeks could not be reconciled with that standard. On Pakistan's attempt to make consular access conditional on India's cooperation in the investigation, the Court was categorical: "a State cannot condition the fulfilment of its obligation under Art. 36."

Remedy — restitutio in integrum

By way of remedy the Court declared India entitled to restitutio in integrum and directed Pakistan to provide "effective review and reconsideration" of the conviction and sentence by means of its own choosing. A continued stay of execution was held to be an indispensable condition for that review. The Court declined to annul the conviction or to order Mr. Jadhav's release — its jurisdiction under Article I of the Optional Protocol was confined to the interpretation and application of the VCCR, and the Court does not function as a criminal appellate body over domestic decisions.

The remedial template tracks the earlier LaGrand (Germany v. United States) and Avena (Mexico v. United States) decisions, in which the Court had held that Article 36(1) creates individual rights, not merely state-to-state rights, and that the appropriate remedy for a breach is review and reconsideration of the conviction in the light of that breach.

Two further points deserve emphasis. First, the Court rejected Pakistan's argument grounded in the doctrine of clean hands and the maxims ex turpi causa non oritur actio and ex injuria jus non oritur. Pakistan had contended that India's own alleged unlawful conduct disabled it from invoking consular protection. The Court found no unlawful conduct on India's part and noted that, in any event, Pakistan had failed to explain how India's alleged espionage prevented Pakistan from honouring its independent obligations under Article 36. Second, the Court underscored that the existence of a domestic clemency procedure does not satisfy the obligation of effective review and reconsideration; the review contemplated must be a judicial process capable of taking full account of the consular violation and of any prejudice it caused to the accused.

Right of Passage Over Indian Territory — Portugal v. India, ICJ Reports 1960

The case is the leading authority on local or bilateral custom and the only contentious dispute in which India has been a respondent before the Court. Portugal claimed a right of passage over intervening Indian territory between Daman, on the coast of Gujarat, and the Portuguese enclaves of Dadra and Nagar Haveli. The claim was rooted in a treaty of 1779 issued by a Maratha ruler, in subsequent British recognition of Portuguese sovereignty over the enclaves, and in a long, constant and uniform practice that continued through the British and post-British periods. In 1953 to 1954 India had suspended the right of passage in view of unrest in the enclaves.

The Court held that the practice between the two States — though concerning only two States — had crystallised into a local custom. Where a State enjoys a right of passage through the territory of another State by treaty, and where that right is exercised through a constant and uniform practice over a long period, the practice acquires the force of law and imposes a corresponding obligation on the territorial State. Article 38(1) of the Court's Statute encompasses bilateral and regional customary norms in the same way that it encompasses bilateral and multilateral treaties.

That holding is the foundation of the doctrine of local or bilateral custom. The two leading cases on regional custom — the Asylum case discussed below and the Right of Passage case here — are commonly cited together. Both are unpacked in greater detail in the companion chapter on customary international law and general principles.

On the substantive question of scope, the Court found that the right of passage extended to private persons, civil officials and goods in general but not to armed forces, armed police or arms and ammunition. India had therefore acted within its power of regulation and control when it suspended the passage in 1954, and was not in breach of any obligation to Portugal. The reasoning is a useful illustration of how a custom may be recognised in principle while its scope and exercise remain subject to the territorial sovereign's regulatory power.

Asylum case — Colombia v. Peru, ICJ Reports 1950

The Asylum case concerned the grant of diplomatic asylum by the Colombian Embassy in Lima to a Peruvian political leader and the question whether Colombia, as the asylum-granting State, could unilaterally qualify the offence of the refugee. Colombia argued that a regional Latin-American custom permitted such unilateral qualification.

The Court accepted in principle that a regional custom could exist and bind the States of the region, but held that Colombia had failed to discharge the burden of proving a constant and uniform practice accepted as law by the States concerned. The pivotal contribution of the Asylum case to the law of custom is the requirement that a State asserting a regional or local custom must positively prove the State practice and the opinio juris of the States it seeks to bind. The case has since been read together with the Right of Passage case as the leading pair of authorities on non-universal custom.

Lotus case — France v. Turkey, PCIJ Series A No. 10 (1927)

The Lotus case is a decision of the Permanent Court of International Justice but is invariably included in any list of landmark international decisions. The French steamer Lotus collided on the high seas with the Turkish collier Boz-Kourt, with the loss of eight lives. When the Lotus reached a Turkish port, the French officer of the watch was arrested and charged with manslaughter; France protested that Turkey had no jurisdiction.

The Permanent Court held that Turkey was free to exercise jurisdiction in the absence of a prohibitive rule of international law. Restrictions on the independence of States cannot be presumed; what is not prohibited is permitted. This permissive principle — the so-called Lotus principle — has shaped the entire structure of jurisdictional analysis under international law and remains the starting point for any discussion of state jurisdiction — territorial, personal, universal. The specific holding on collisions at sea has since been altered by treaty (Article 11 of the 1958 High Seas Convention and Article 97 of the 1982 UN Convention on the Law of the Sea), but the underlying jurisdictional logic is alive and well.

Corfu Channel case — United Kingdom v. Albania, ICJ Reports 1949

The Court's first contentious judgment is also one of its most important. British warships, exercising the right of innocent passage through the Corfu Channel, struck mines in Albanian territorial waters; lives were lost and ships were damaged. The United Kingdom invoked the Court's jurisdiction; Albania, having no compulsory acceptance on record, was held to have consented to jurisdiction by a series of letters following the unilateral application — the doctrine of forum prorogatum.

On the merits the Court held that Albania had known of the presence of the mines and had failed to warn approaching shipping. The judgment is the source of the celebrated dictum that every State has an obligation "not to allow knowingly its territory to be used for acts contrary to the rights of other States" — a principle that has since underpinned the law of international environmental law and the sic utere tuo rule. The Court awarded monetary compensation, one of only two contentious cases in which it has done so. The case is also a textbook illustration of the limits of compliance: Albania did not in fact pay.

North Sea Continental Shelf cases — ICJ Reports 1969

The North Sea Continental Shelf cases between West Germany on one side and the Netherlands and Denmark on the other concerned the delimitation of the continental shelf in the North Sea. The Court's reasoning is the classical exposition of the two elements of customary international law — settled and uniform State practice and opinio juris, the belief that the practice is required by law — and of the conditions under which a treaty rule may pass into general custom binding non-parties.

The Court rejected the argument that the equidistance principle of Article 6 of the 1958 Geneva Convention on the Continental Shelf had crystallised into customary law binding on Germany, which was not a party. The conditions for such crystallisation included a norm of fundamentally norm-creating character, widespread and representative participation in the convention including States whose interests were specially affected, and State practice both extensive and virtually uniform. The judgment also influenced the design of Articles 76 and 83 of UNCLOS, the doctrinal map of which is set out in the chapter on the law of the sea.

Nicaragua case — Nicaragua v. United States of America, ICJ Reports 1986

The Military and Paramilitary Activities in and against Nicaragua case is the leading judgment on the use of force, the customary status of Article 2(4) and Article 51 of the UN Charter, and the law of state responsibility for support to non-state armed groups. The United States had supported the Contra rebels against the Nicaraguan government and had laid mines in Nicaraguan ports.

On jurisdiction the Court held that the United States' attempt to amend its 1946 declaration under the Optional Clause with immediate effect was ineffective — the six-month notice period in the original declaration had to be observed because it was an integral part of the instrument that contained it. On the merits the Court found that the United States had violated the customary international law prohibition on the use of force and the principle of non-intervention. The Court drew the now-classical distinction between an "armed attack" — which alone justifies self-defence under Article 51 — and lesser uses of force, and articulated the "effective control" test for attribution of conduct of armed groups to a State. The doctrinal background to attribution and the law of state responsibility is set out in greater depth in the chapter on the subjects of international law.

United States Diplomatic and Consular Staff in Tehran — ICJ Reports 1980

The seizure of the US Embassy in Tehran on 4 November 1979 produced one of the Court's clearest decisions. The United States invoked jurisdiction under the Optional Protocols to the Vienna Conventions on Diplomatic and Consular Relations. The Court held that, although the initial attack on the Embassy was the work of militants and not directly attributable to the State, the Iranian authorities' subsequent endorsement and continuation of the situation transformed it into an internationally wrongful act of the State.

The judgment is a foundational authority on the inviolability of diplomatic premises and personnel, on the difference between conduct of private persons and conduct attributable to a State, and on the principle that the rules of diplomatic and consular law form a self-contained regime within which the receiving State's remedies for abuse are themselves prescribed. The case sits naturally alongside the Jadhav case as the second pillar of the consular and diplomatic jurisprudence of the Court.

Reparation for Injuries Suffered in the Service of the UN — Advisory Opinion, ICJ Reports 1949

The Court was asked whether the United Nations, as an organisation, had the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining reparation for damage caused to it or to its agents. The Court answered in the affirmative. The United Nations was held to be an international person — a subject of international law — possessing the legal personality required to fulfil its purposes and to discharge its functions, and enjoying the right to bring an international claim, including against a non-member State.

The opinion is the doctrinal source of the international legal personality of international organisations and the conceptual bridge between the classical State-only conception of international law and the contemporary law that recognises a wider range of subjects. The doctrinal map is set out in the companion chapter on international organisations and the UN system.

Legality of the Threat or Use of Nuclear Weapons — Advisory Opinion, ICJ Reports 1996

In response to a request from the General Assembly the Court delivered its most analytically dense advisory opinion. The Court held that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, particularly the principles and rules of humanitarian law, but the Court could not conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence in which the very survival of a State would be at stake.

The opinion is also a leading authority on the customary status of Article 2(4) of the Charter, on the obligation under Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons to pursue negotiations in good faith leading to nuclear disarmament, and on the relationship between international humanitarian law and the law on the use of force.

Application of the Genocide Convention — Bosnia and Herzegovina v. Yugoslavia / Serbia, ICJ Reports 1996 and 2007

The Bosnian Genocide case is the Court's first authoritative interpretation of the 1948 Genocide Convention. Jurisdiction was founded on Article IX of the Convention itself — the compromissory clause — illustrating how multilateral treaties commonly route disputes to the Court. On the merits, the 2007 judgment held that the Srebrenica massacre constituted genocide within the meaning of Article II of the Convention, but Serbia had not itself committed, conspired in or directly incited the genocide; Serbia had, however, breached its obligation to prevent the genocide and to cooperate with the International Criminal Tribunal for the former Yugoslavia. The case is also a foundational decision on the law of state recognition and succession in the context of state breakup.

Putting the cases together

For the exam-aspirant, four threads run through the nine decisions. First, the Court's jurisdiction is founded on consent — whether expressed in a special agreement, an Optional Clause declaration, a compromissory clause in a treaty, or by conduct (forum prorogatum). Second, custom requires both settled practice and opinio juris; bilateral and regional customs are recognised but require strict proof. Third, the Court's remedies extend from declaration to monetary compensation to restitutio in integrum, but always within the limits of the consensual jurisdiction. Fourth, advisory opinions are not binding but are profoundly authoritative and have shaped doctrine far beyond the requesting organ. The interface between these international rules and domestic Indian law is the subject of the companion chapter on the Indian Constitution and international law and the related chapter on the implementation of international treaties in Indian courts. For the broader survey of the subject and the position of these decisions within the discipline, the pillar page on international law notes for judiciary sets the syllabus map.

Frequently asked questions

Did the ICJ order the release of Kulbhushan Jadhav?

No. The Court declined to annul the conviction or to order release. Its jurisdiction under Article I of the Optional Protocol was confined to the interpretation and application of the Vienna Convention on Consular Relations, 1963. The Court ordered Pakistan to provide effective review and reconsideration of the conviction and sentence by means of its own choosing, and held that a continued stay of execution was an indispensable condition for that review. The Court does not sit as a criminal appellate body over domestic decisions.

Why was the Right of Passage case important even though Portugal partly lost?

Because the Court held that a constant and uniform practice between only two States, continued over a long period, could create a binding local custom under Article 38(1)(b) of the Statute. That holding is the leading authority on bilateral or local custom in international law. On the substantive question of scope, India was held to have acted within its power of regulation and control when it suspended the passage in 1954, and was not in breach of its customary obligations. The case is therefore both an Indian win on the facts and a Portuguese win on the doctrine of local custom.

What is the Lotus principle and is it still good law?

The Lotus principle holds that restrictions on the sovereignty of States cannot be presumed: what is not prohibited by international law is permitted. The specific holding of the 1927 case on jurisdiction over collisions at sea has since been altered by Article 11 of the 1958 High Seas Convention and Article 97 of the 1982 UN Convention on the Law of the Sea, which now confine criminal jurisdiction over collisions to the flag State or the State of nationality of the accused. The underlying permissive principle, however, continues to be invoked as the structural starting point for jurisdictional analysis.

What is the effective control test from the Nicaragua case?

The Nicaragua case held that the conduct of an armed group is attributable to a State only where the State exercises effective control over the specific operations in the course of which the alleged violations occurred. Mere financing, equipping, training or general support of the group is not enough. The test was applied to deny attribution of the Contras' acts to the United States despite extensive American support. The International Criminal Tribunal for the former Yugoslavia later articulated a looser overall control test in Tadic, but the ICJ reaffirmed effective control in the Bosnian Genocide judgment of 2007.

Are ICJ advisory opinions binding on India?

No. Advisory opinions are not binding on any State, including the State or organ that requested the opinion. They represent the Court's authoritative legal advice and are persuasive in the highest degree, but they do not carry the obligation of compliance under Article 94 of the UN Charter that contentious judgments do. The Reparation for Injuries opinion of 1949 and the Nuclear Weapons opinion of 1996, for example, have shaped doctrine profoundly but do not bind India as a matter of law. Contentious judgments bind only the parties to the dispute.

Why is the Corfu Channel case a foundational authority for international environmental law?

Because the Court there articulated the general principle that every State has an obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. That dictum became the doctrinal seed of the sic utere tuo rule and was later elaborated in the Trail Smelter arbitration and in Principle 21 of the 1972 Stockholm Declaration, which require States to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond national jurisdiction.