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Home Articles posted by Freya Baetens

Abuse of Process and Abuse of Rights Before the ICJ: Ever More Popular, Ever Less Successful?

Published on October 15, 2019        Author: 

Abuse of process and abuse of rights objections seem to have become increasingly popular in cases before the ICJ. While acknowledging that the two concepts have much in common, the Court has distinguished between them by noting that ‘abuse of process’ relates to judicial proceedings and is a preliminary issue that may bar admissibility, while ‘abuse of rights’ relates to the merits, as it ‘cannot be invoked as a ground of inadmissibility when the establishment of the right in question is properly a matter for the merits’ (Equatorial Guinea v. France, paras. 146, 150-151). Simply put, as a general rule, abuse of process relates to the manner of initiating (and conducting) proceedings, while abuse of rights relates to the substance of the dispute.

This apparent trend is taking place despite the fact that the Court almost invariably denies such objections (as in Certain Phosphate Lands in Nauru, paras. 37-38 and Border and Transborder Armed Actions, para. 94). It has repeatedly noted (as in Equatorial Guinea v. France, para. 150; Certain Iranian Assets, para. 114; and Jadhav, para. 49) that an abuse of process plea could only be upheld in ‘exceptional circumstances’. In some instances, the ICJ deferred the issue to a later stage of the proceedings (as in Qatar v. UAE, para. 39 and Equatorial Guinea v. France, para. 151).

In recent ICJ case law, relying explicitly or implicitly on the principle of good faith, parties have accused each other of abuse of process or rights in a range of circumstances. For example, abuse was alleged when two proceedings in relation to the same object were started in Qatar v. UAE; when there was an alleged violation of the dispute settlement mechanisms provided for in the treaty in Qatar v. UAE and Jadhav; when the relief sought was unavailable under the treaty in Equatorial Guinea v. France and Jadhav; and when there was an alleged incompatibility between the application and the object and purpose of the treaty in Certain Iranian Assets and Jadhav. Read the rest of this entry…

 

An Unseen Actor Speaks

Published on September 10, 2019        Author: 

 

An Unseen Actor Speaks

 

Smile at us, pass us or greet us; then, if you like, forget,

For we are the unseen actors, that have not spoken yet.

The interns, law clerks, jurists, of less than judicial rank,

Whom judges and arbitrators have nonetheless reason to thank.

We are the unobtrusive – we could almost be said to ‘lurk’;

But make no mistake about it, we’re doing important work.

We stand well back in the shadows (except for the Registrar), Read the rest of this entry…

 

The International Court of Justice renders its judgment in the Jadhav case (India v. Pakistan)

Published on July 18, 2019        Author: 

On 8 May 2017, India instituted proceedings before the International Court of Justice (ICJ) against Pakistan, accusing the latter of ‘egregious violations of the Vienna Convention on Consular Relations’ (VCCR) (p. 4). The dispute concerns the treatment of an Indian national, Mr. Kulbhushan Sudhir Jadhav, who was detained, tried and sentenced to death by a military court in Pakistan.

In this post, I will give a brief overview of the background of the case and the claims submitted by India, followed by the provisional measures decision and the judgment on jurisdiction, admissibility and merits, pronounced in open court on 17 July 2019.

Application instituting proceedings

In its Application, India claimed that, on 3 March 2016, Mr. Jadhav was ‘kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan’ (para. 13) on suspicion of espionage and sabotage activities.  India stated that it was not informed of Mr. Jadhav’s detention until 22 days after his arrest and Pakistan failed to inform Mr. Jadhav of his rights under the VCCR. Allegedly, the Pakistani authorities refused to give India consular access to Mr. Jadhav, despite repeated requests. Read the rest of this entry…

 
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