India’s Engagement with the International Court of Justice (ICJ): a Brief on All Cases Involving the Nation of India

Written by: Shourya Singh, B.A.LL.B, NLU Jodhpur

Introduction

The International Court of Justice (ICJ), established in 1945 as the principal judicial organ of the United Nations, plays a central role in the international legal system. It has mainly the mandate of settling legal disputes arising between states and delivering advisory opinions in cases of international law submitted to it by the United Nations, specialized agencies, or other approved bodies. And as a world court of peace to settle disputes, the ICJ is the beacon of hope for a world in which conflict would no longer have to be settled by war but could be settled by reason, by law, by diplomacy. India, as a founder member of the United Nations, has remained a keen party to the ICJ, in its capacity both as claimant and respondent, in a number of cases spread across various spheres of international law.[1]

The Indian philosophical significance of using the ICJ goes beyond particular cases before the Court. India's engagement of international law and relations with the ICJ form an integral component of such an extended intercourse of ideas among notions of sovereignty, justice, and rule of law in matters international. Being a democratic country and having a history of following the rule of law in the past, India not only views the ICJ as a court of settlement of disputes, but also as an instrument best placed to realise its vision of a rules-based international order and a multipolar world order.

For all intents and purposes, India's approach to the ICJ offers a tilt towards internationalist philosophy with precepts of justice and equality to states as the foundation to world front international relations. The ICJ is a platform for India as a world player to witness international law employed as a means for advancing peace, security, and justice as well as accountability and diplomatic cure to the states parties in juridical conflicts. India always maintained the idea that disputes need to be resolved in a peaceful manner by means of legal and diplomatic avenues, rather than through arm or forces of weapons.

Second, the Indian action to approach the ICJ also signifies the shifting paradigm of sovereignty under the modern international system. States still invoke their sovereignty but are increasingly aware of the fact that sovereignty is not absolute but relative to international laws of rules, such as human rights, protection of the environment, and arms control treaties. India's approach to such rules of law, particularly in its cases in the ICJ, is mostly a balancing act between upholding national sovereignty and entering into the world legal order of cooperation and accountability.

It is this philosophical perspective that directs Indian foreign policy post-independence on issues of non-alignment, peaceful coexistence, and the establishment of multilateralism. It is thus consistent with India's idea of international law as positive, a regime facilitating cooperation between states and providing justice to be administered equally and objectively, irrespective of power relations between states.

Here, the Indian response to the ICJ poses basic philosophical questions regarding the notion of justice in international society, the role of international courts in deciding upon the conduct among the nations, and judicial judgment in settling disputes, which can be political in nature. It also raises questions of whether the powers of states can be realistically constrained by international law without damaging their legitimate interests, or whether international law is, as some of its critics complain, an instrument of the powerful few to bully others into submission.

This piece will look at these philosophical questions, canvassing the presuppositions upon which India has made its way to the ICJ, and wondering about the broader implications of its involvement for international legal theory. By doing so, this study attempts to comprehend how India imagines the role of the ICJ as not just a court where legal controversies are resolved, but as a forum in which it strives to leave its own imprint on international governance's future, with the challenge of maintaining sovereignty, justice, and cooperation.

1. Right of Passage over Indian Territory (Portugal v. India, 1960)[2]

Facts

Nationalist volunteers, aided by local resistance and Indian sympathisers, managed to take over Dadra during the night of July 21–22, 1954. Nagar Haveli was taken over a few days later. Portuguese administrative staff were driven out or arrested, and the Portuguese flag was lowered from the area. These measures brought Portugal's physical hold on the enclaves to an effective end. In the wake, Portugal sought to re-establish its presence by requesting passage through Indian Territory to send officials and supplies to regain administrative control. The Indian Government rebutted this article on the grounds of wanting to maintain things in check, and that the Portuguese claim over the enclaves was ab initio following the rebellion in the area. Denial of passage and occupation of the enclaves became the essence of the dispute, and Portugal went ahead and referred the case to the International Court of Justice to protest the actions of India and invoke the right to enter the enclaves.[3]

Legal Arguments:

Portugal

 Based its legal argument on a treaty signed with the Maratha Empire in 1779[4], asserting that it guaranteed Portugal uninterrupted passage rights between its colonial enclaves. It claimed that this long-standing practice had established a right under customary international law5, which should be honoured regardless of the change in sovereignty. According to Portugal, the historic and continuous use of these routes constituted a legal entitlement that survived India's independence and was not subject to unilateral denial.India

 Rejected the applicability of colonial-era treaties, arguing that agreements made under imperial or coercive conditions could not bind a sovereign republic formed after independence. India maintained that, as a sovereign state[5], it had full authority over its territory and any rights of passage would require its explicit consent, which had not been given. Furthermore, India emphasized that allowing political or military passage would infringe upon its sovereignty and territorial integrity, making such claims unacceptable under international law.[6]Judgment

The International Court of Justice adjudicated that Portugal enjoyed a right of passage for civilian purposes over Indian Territory between its enclaves, based on long-standing practice. The Court, however, decided that this right would not cover military or political officials and that India was within its sovereign rights to limit such movements[7]. 

2. Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan, ICJ Rep 1972)[8]

Facts

 India revoked more than flight passes of Pakistani planes after an Indian Airlines plane had been hijacked in 1971[9]. Pakistan complained before the ICAO Council[10]. India challenged the jurisdiction of the ICAO Council, stating the issue was one of national security and bilateral agreements.

Legal Arguments:

India

 Had contended that the conflict did not relate to the legal sphere of the Chicago Convention or the jurisdiction of the ICAO Council, but was essentially a case of political strife and national security, and not civil aviation India argued that suspension of Pakistani over flight rights was an exercise of sovereignty against acts of terrorism and aggressive behavior, and thus beyond the jurisdiction of ICAO. Secondly, India cited the Tashkent Agreement[11] and the Shimla Agreement[12], and argued that such matters between the two countries must be settled through bilateral negotiations and not international adjudication. India also argued that, according to customary international law, states have the right to deny access to airspace on grounds of national security, and this discretion could not be derogated from by civil aviation treaties.

Pakistan 

However, argued that India's move was a direct contravention of the Chicago Convention and the International Air Services Transit Agreement [13], to which both nations were signatories. In refusing over flight permission to Pakistani civilian aircraft, India violated the treaty provisions promising the freedom of peaceful passage. Pakistan insisted that the conflict was of a juridical kind, relating to the interpretation and application of international aviation conventions, and thus clearly within the mandate of the ICAO Council as envisaged under Article 84[14] of the Chicago Convention. Pakistan dismissed India's security exception argument as a bid to skirt settled treaty obligations and uphold unwarranted constraints.

Judgment

The ICJ ruled in favour of Pakistan on the preliminary issue of jurisdiction, holding that the ICAO Council had jurisdiction to entertain Pakistan’s complaint under Article 84 of the Chicago Convention and the International Air Services Transit Agreement (IASTA). The Court dismissed India's argument that the issue was inherently political or national security-related and therefore outside the scope of the ICAO. It ruled that the dispute clearly implicated the interpretation and application of international aviation conventions and hence squarely fell within the mandate of the ICAO Council[15]. However, the issue was finally solved not by the court but by bilateral discussion between the 2 nations[16].

3. Trial of Pakistani Prisoners of War (Pakistan v. India,  1973)[17]

Facts

 Post the Bangladesh Liberation War18, India detained around 93,000 Pakistani POWs. Pakistan approached the ICJ to prevent Bangladesh from prosecuting 195 of them for war crimes19.

Legal Arguments

Pakistan

 Based its claims on the Geneva Conventions of 1949[18], asserting that the individuals in question were Prisoners of War (POWs) under Indian custody and thus, according to international humanitarian law, should be repatriated. Pakistan emphasized invocation of its sole jurisdiction over its nationals was being invoked, claiming prosecution of Pakistani nationals outside Pakistan's will was against international law's very premises. It argued India was acting with gross disregard of the Geneva Conventions on POWs that promise repatriation with the conclusion of hostilities. Pakistan contended that India's behavior with respect to POWs was unlawful since it had not performed as stipulated in international law provisions regarding treatment and repatriation of the prisoners of war.

IndiaRejected ICJ jurisdiction, considering there was absence of consent on the part of Pakistan under Article 3621 of the ICJ Statute.India had contended that the ICJ could not adjudicate the case without both consent. In addition to this, India particularly invoked the Shimla Agreement of 1972, a tripartite political settlement mechanism between Pakistan, India, and the International Committee of the Red Cross (ICRC), in order to end the POW issue. India argued that there is already a diplomatic mechanism available under the Shimla Agreement to settle the issue and therefore the issue must be resolved diplomatically and not judicially. India further contended that the political nature of the case should incapacitate it from getting judicial consideration.

Judgment

The International Court of Justice did not issue a ruling on the merits of the case because India declined to participate in the proceedings, As a result, the ICJ was unable to proceed with the case, since jurisdiction in contentious cases requires the consent of both parties. Without India’s consent, the Court effectively closed the case without making any ruling on the legality of India’s actions concerning the Pakistani prisoners of war.

Following the ICJ proceedings, the matter was ultimately resolved diplomatically through the Delhi Agreement of 1973, signed by India, Pakistan, and Bangladesh, which facilitated the return and repatriation of POWs and became a significant political resolution to a potentially contentious legal dispute.

4. Aerial Incident of 10 August 1999 (Pakistan v. India, ICJ Rep 2000)[19]

Facts

On 21 August 1999, Pakistan commenced proceedings against India in the International Court of Justice (ICJ) after India shot down its Atlantic reconnaissance aircraft. The plane was shot down on 10 August 1999 when Indian fighter jets fired at a Pakistani naval aircraft and brought it down over the Rann of Kutch region, near the coast of Gujarat, killing 16 Pakistani military personnel on board[20].

Legal Arguments

Pakistan

 argued that the shooting down of its Atlantic reconnaissance aircraft by the Indian Air Force constituted a violation of Article 2(4)[21] of the United Nations Charter, which prohibits the use of force against the territorial integrity or political independence of any state. Pakistan emphasised that the aircraft was unarmed, engaged in a routine training mission, and never crossed into Indian airspace. It contended that India’s actions breached not only the UN Charter but also customary international law, which prohibits the unnecessary and disproportionate use of force. As a result, Pakistan sought a declaration from the ICJ affirming India’s international responsibility, along with compensation for the loss of life and property.

India

 Challenged the jurisdiction of the ICJ to hear the case by invoking its reservation to the Court’s compulsory jurisdiction under Article 36(2) of the ICJ Statute. Specifically, India’s declaration excluded disputes involving Commonwealth countries and matters of a military nature, both of which it claimed were applicable here. In addition to its jurisdictional objection, India defended its conduct on substantive grounds, asserting that the Pakistani aircraft had violated Indian airspace, ignored multiple warnings, and posed a threat to national security. Consequently, India invoked Article 5125 of the UN Charter, arguing that the act was a legitimate exercise of self-defence in response to an unauthorised and potentially hostile intrusion into its sovereign territory.

Judgment

The International Court of Justice (ICJ), by judgment given on 21 June 2000, refused to hear the case filed by Pakistan against India, holding that it had no jurisdiction to do so. The Court held in favour of India based on its reservation to the ICJ's compulsory jurisdiction under Article 36(2) of the Statute, which reserved disputes with other states of the Commonwealth and those about military affairs. As Pakistan is a member of the Commonwealth and the issue involved a military incident, the Court held that the reservation came into force and therefore it could not decide the case.

5. Obligations Concerning Negotiations on Nuclear Disarmament (Marshall Islands v. India, ICJ Rep 2016)[22]

Facts

 The Marshall Islands sued nine nuclear states27, including India, for failure to comply with their obligations regarding nuclear disarmament according to customary international law and the ICJ’s 1996 advisory opinion28.

Legal Arguments

 Marshall Islands

Argued that India, along with other nuclear-armed states, had violated obligations under customary international law and the ICJ’s 1996 advisory opinion, which affirmed that there exists an obligation to pursue negotiations in good faith toward nuclear disarmament. It asserted that this obligation applied universally, regardless of a state's membership in the Non-Proliferation Treaty (NPT)[23]. The Marshall Islands claimed that India’s continued development and expansion of its nuclear arsenal, along with the absence of any meaningful disarmament efforts, constituted a breach of this customary duty. Therefore, it sought to hold India accountable before the ICJ for failing to fulfil its international legal obligations concerning nuclear disarmament.

India

 Challenged the ICJ's jurisdiction, asserting that there was no legal controversy between the two countries as prescribed by Article 38(1) of the ICJ Statute. It argued that there had been no earlier bilateral contact or protest by the Marshall Islands, signifying the presence of a controversy. India insisted that it was not a signatory to the NPT, and as such, the provisions of that treaty were not binding on it. Additionally, it insisted that diplomatic statements or generalised complaints regarding nuclear policy did not constitute a legal dispute fit for adjudication by the Court. India thus asked the Court to dismiss the case on the grounds of lack of jurisdiction and admissibility.

Judgment

It was only on 5 October 2016 that the International Court of Justice (ICJ) came up with its judgment on the case that had been lodged by the Republic of the Marshall Islands against India, and at long last ruled that it lacked jurisdiction to decide the case. The Marshall Islands case, filed in 2014, was premised on holding India liable for failure to fulfil its obligation under customary international law and Article VI of the Treaty of the Non-Proliferation of Nuclear Weapons (NPT), namely its obligation to pursue nuclear disarmament in good faith. But then the case was dismissed at first instance by the ICJ on procedure without even taking a call on any one of the real legal issues about disarmament.

The Court's ruling was primarily on the ground that, according to Article 38(1) of the ICJ Statute, a real and existing legal dispute between the parties must exist at the moment of application. The requirement is a pillar of the Court's jurisdiction in contentious cases and mandates the respondent state to be notified—through explicit statements, protests, or diplomatic notes—that its legal stance is under challenge from the applicant state.

In the current case, the Court held that this simple test had not been met. While the Marshall Islands had addressed with clarity to its disarmament issues in multilateral settings, for e.g., in the United Nations and ICJ submissions thereto, the words had not been specifically directed at India. There was no indication of bilateral contact, like a formal diplomatic note or demarche, where the Marshall Islands had precisely accused India of violating its disarmament treaty obligations. Failure to have such precise contact meant that India had not been placed on notice that its legal conduct was under challenge.

The ICJ has stated that a broad utterance of concern or a call to disarmament, no matter how voiced in the ear or sight of or in awareness by the responding state, would be insufficient in establishing the presence of a dispute in law. A formal assertion of a dispute concerning legal right or obligation in such a manner that would lead a reasonable person to believe that there is a formal dispute between the parties is what is required. Because this requirement was not fulfilled, the Court dismissed jurisdiction, declaring the application to be inadmissible.

By dismissing the case on procedural grounds, the ICJ avoided having to consider the nuclear disarmament claims that raised significant and controversial questions of international law and state responsibility. The decision produced extensive controversy in academic and legal communities, with commentators widely exploring its implications for access to international adjudication as well as the future of disarmament litigation. Some argued that the Court used an excessively formalistic approach to the "dispute" requirement and thus set a very high threshold for potential applicants, particularly weaker or small states, in obtaining judicial relief on issues of international concern.

Meanwhile, regime supporters argued that experimentation with a doubtful legal distinction to proof protects states against surprise or vexatious litigation and promotes voluntary foundations of ICJ jurisdiction. In insisting on certain antecedent notice, the Court preserves standards of justice and procedural integrity under which parties are informed and can be heard in resolving charges before their elevation to formal adjudication.

Overall, the Marshall Islands v. India case is a landmark illustration of how barriers to procedure, namely, the necessity of a legal controversy, affect access to international justice. Even though the root issue of nuclear disarmament persists, the case has served to have a profound impact in shedding light on the legal test that governs the ICJ's jurisdiction. It is a reminder that even those instances grounded in deeply moral or humanitarian bases need to fit the procedural framework of international law to qualify.

6. Kulbhushan Jadhav Case (India v. Pakistan 2019)

Facts

On 8 May 2017, India initiated proceedings against Pakistan at the International Court of Justice (ICJ) regarding the arrest, detention, and trial of Kulbhushan Jadhav, an Indian citizen. Jadhav had been arrested by Pakistani forces in March 2016 in Baluchistan province and was charged with espionage and terrorism. On 10 April 2017, he was sentenced to death by a Pakistani military court after a secret trial.

Legal Arguments

India

 Had contended that Pakistan violated Article 36 of the Vienna Convention on Consular Relations (VCCR) by not notifying India promptly of Kulbhushan Jadhav's arrest and by refusing to accord consular access despite several demands. India had insisted that the VCCR provides a consular notification of an absolute right and access, regardless of the allegation of espionage or any other charges against the person. India referred to the ICJ's jurisprudence in the LaGrand (Germany v. United States, 2001) cases to justify its argument that consular rights under the VCCR are universal and must be respected even in national security cases. India asked the Court to reverse the conviction and sentence, and to order Pakistan to release Jadhav or, at the minimum, hold a review and reconsideration of the conviction based on VCCR violations.

Pakistan

 Contended that individuals accused of espionage fall outside the scope of Article 36 of the VCCR, arguing that the Convention was never intended to apply to cases involving threats to national security. Pakistan maintained that Jadhav had entered the country under a false identity and was a serving Indian naval officer engaged in espionage and sabotage activities, which, in its view, justified the denial of consular access. Pakistan also argued that it had provided Jadhav with access to legal representation and a fair trial under its domestic laws. It further claimed that India’s application to the ICJ was an abuse of process, attempting to shield an admitted spy under the cover of diplomatic protection.

Judgment

On 17 July 2019, the International Court of Justice (ICJ) held that Pakistan had breached its obligation under Article 36 of the Vienna Convention on Consular Relations (VCCR) in not informing India without delay of the arrest of Kulbhushan Jadhav and in not granting consular access to India. The Court held that the VCCR provisions apply even in situations involving espionage allegations, and hence, Pakistan was not justified in withholding consular rights from India.

The ICJ did not quash Jadhav's conviction or grant him release, as sought by India. Nevertheless, it directed Pakistan to undertake "effective review and reconsideration" of the conviction and sentence in a way that would involve due respect for the rights of the accused in terms of the VCCR. The Court also confirmed the binding force of its provisional measures, which had previously suspended Jadhav's execution pending the final verdict.

Conclusion

India's experience with the International Court of Justice (ICJ) over the decades shows a modest and strategically middling attitude to international legal controversy. Rather than demonstrating a universal commitment or a complete aversion to international adjudication, India has chosen to appear before the ICJ on a selective basis—where it is in alignment with its national interest or serving transcendent canons of law. Whether in defending sovereignty, making appeals to international obligations, or reacting to such emotional issues as consular access and the use of force, India has been keen to enlist legal tools in its arsenal of foreign policy instruments.

These examples not only testify to India's respect for international law but also indicate its penchant for legal opposition rather than violence. At the same time, India's record indicates a seemingly willing acceptance of the margin of international litigation, especially in cases strongly rooted in geopolitics or bilateral matters. Instead of pursuing judicial action exclusively, India has opted to make diplomatic efforts concomitantly, demonstrating mature and pragmatic policymaking.

From air space rights and disarmament to humanitarian undertakings and territorial integrity controversy, Indian involvement has been the key to international legal norm development. In doing so, it reinforces its status as a rule-of-law-focused global player who keeps its strategic autonomy intact but tiptoes. India's ICJ record at last is an example of how legal diplomacy supplements conventional diplomacy in resolving thorny issues of transnational nature.

[1] Kolb, R., 2024. A Lexical Comparison of the Statute of the PCIJ and the Statute of the ICJ. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht/Heidelberg Journal of International Law, 84(3), pp.697-712.

[2] International Court of Justice (ICJ), 1960. Case concerning Right of Passage over Indian Territory (Portugal v. India), Judgment of 12 April 1960. ICJ Reports 1960, pp.6–47.

[3] Goa, D., Diu, P.I., India, P., Prasad, R., Menon, V.K., Katari, V.R., Thapar, G.P., Mshl, A., Engineer, A., Gen, L. and Chaudhuri, J.N., Portuguese colonial campaigns. Arabia, 1552, p.54.

[4] Kantak, M.R., 1982. The Inside Story of the Anti-British Confederacy of 1779. Bulletin of the Deccan College Research Institute, 41, pp.89-99.

[5] United Nations, 1945. Statute of the International Court of Justice, Article 38(1)(d). In: United Nations, Charter of the United Nations and Statute of the International Court of Justice. San Francisco: United Nations, pp. 105–120.

[6] Government of India, 1950. Constitution of India, Preamble. New Delhi: Ministry of Law and Justice.

[7] Verzijl, J.H.W., 1960. The International Court of Justice, 1960. Netherlands International Law Review, 7(3), pp.211-248.

[8] International Court of Justice (ICJ), 1972. Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment of 18 August 1972. ICJ Reports 1972, pp. 46–65.

[9] Zafar, S. and Wasi, A.B., 2010. Terrorism in India: Method in Madness?. Policy Perspectives, pp.51-74.

[10] International Civil Aviation Organization (ICAO), 1944. Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944. 15 U.N.T.S. 295.

[11] Government of India and Government of Pakistan, 1966. Tashkent Declaration, signed on 10 January 1966 at Tashkent, USSR.

[12] Government of India and Government of Pakistan, 1972. Shimla Agreement, 2 July.

[13] International Civil Aviation Organization (ICAO), 1944. International Air Services Transit Agreement, signed at Chicago on 7 December 1944.

[14] https://www.icj-cij.org/node/103112

[15] Bhat, B., 2022. Jurisdiction under Article 84 of the Chicago Convention 1944 in the Context of Middle East Conflict.

[16] Baral, J.K., 1977. From Simla to Delhi: a case study of a sub-system diplomacy. The Indian Journal of Political Science, 38(2), pp.218-236.

[17] International Court of Justice (ICJ), 1973. Trial of Pakistani Prisoners of War (India v. Pakistan), Application filed 10 May 1973. ICJ General List No. 60. [Case discontinued].

[18] Cambridge International Law Journal "Symposium on Bangladesh Genocide and International Law: Criminal Responsibility of the Pakistani Prisoners of War" (Cambridge International Law Journal June 3,2022)

[19] 21  United Nations, 1945. Statute of the International Court of Justice, Article 36. In: United Nations, Charter of the United Nations and Statute of the International Court of Justice. San Francisco: United Nations, pp. 105–120

[20] Ali, M., 2012. Maritime issues between Pakistan and India: seeking cooperation and regional stability (Doctoral dissertation, Monterey, California. Naval Postgraduate School).

[21] United Nations, 1945. Charter of the United Nations, Article 2(4). San Francisco: United Nations.

[22] International Court of Justice (ICJ), 2014. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Marshall Islands v. India), Application filed 31 March 2014. ICJ General List No. 160.

[23] United Nations, 1968. Treaty on the Non-Proliferation of Nuclear Weapons (NPT), opened for signature 1 July 1968, entered into force 5 March 1970. 729 U.N.T.S. 161.