ICJ verdict on Kulbhushan Jadhav may change India-Pakistan ties for good
Contrary to commonly held belief, multilateral mediation to resolve thorny bilateral disputes could work in New Delhi’s favour.
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India has reasons to celebrate as the International Court of Justice at the Hague, the Netherlands, has ruled in favour of New Delhi in the much-hyped Kulbhushan Jadhav case. The ICJ has effectively issued an interim stay order on the imminent execution of Kulbhushan Jadhav, whom Pakistan had awarded the death penalty after trying him in a military court. Today’s decision at the ICJ has therefore brought much relief to Indians across the board.
#KhulbhushanJadhav- Court Unanimously stays Jadhav’s execution!— Bar & Bench (@barandbench) May 18, 2017
ICJ rules that Pak won't hang Jadhav. Pak to take all measures to ensure Jadhav is not executed and shall inform court of all measures taken— Saif Ullah Khan (@saifizm) May 18, 2017
Just a word of caution: this is stay on procedural/jurisdiction grounds. We must celebrate when we get Jadhav free on merit #IndiaForJadhav— Rajdeep Sardesai (@sardesairajdeep) May 18, 2017
India’s side was argued at the ICJ by senior advocate Harish Salve, who famously fought this high-profile case for just Rs 1. Congratulations are pouring in for Union minister of external affairs, Sushma Swaraj, who threw her diplomatic weight behind this case to save Jadhav from the gallows, and also for Prime Minister Narendra Modi for this major international victory over Pakistan counterpart Nawaz Sharif.
The ICJ order has come as a great relief to the familly of Kulbhushan Jadhav and people of India.— Sushma Swaraj (@SushmaSwaraj) May 18, 2017
We are grateful to Mr.Harish Salve for presenting India's case so effectively before ICJ.— Sushma Swaraj (@SushmaSwaraj) May 18, 2017
I assure the nation that under the leadership of Prime Minister Modi we will leave no stone unturned to save #KulbhushanJadhav.— Sushma Swaraj (@SushmaSwaraj) May 18, 2017
#ICJ verdict endorses the relevance and necessity of procedural and substantive fairness which was denied by Pakistan— Arun Jaitley (@arunjaitley) May 18, 2017
Hero of the Moment- Harish Salve. True patriot and a great legal brain. And all one minus histrionics- with the clear, clinical lawyers gaze— barkha dutt (@BDUTT) May 18, 2017
The 11-member bench at the ICJ ruled in favour of India and also asked Pakistan to provide consular access to Jadhav. Presided by Judge Ronny Abraham of France, the order said:
“The Court indicates to the Islamic Republic of Pakistan that it must take “all measures at its disposal” to prevent the execution of an Indian national, Mr. Kulbhushan Sudhir Jadhav, pending final judgment of the Court.”
The order further said:
“The International Court of Justice (ICJ), principal judicial organ of the United Nations, today indicated to the Islamic Republic of Pakistan that it must “take all measures at its disposal” to ensure that Mr. Kulbhushan Sudhir Jadhav, of Indian nationality, is not executed pending a final judgment of the Court in the Jadhav Case (India v. Pakistan).
In its Order indicating provisional measures, which was adopted unanimously, the Court also stated that the Government of Pakistan shall inform it of all measures taken in implementation of that Order. It further decided to remain seised of the matters which form the subject of the Order until it has rendered its final judgment.”
The ICJ ruled that any action by Pakistan that could irrevocably damage Jadhav’s rights under the Vienna Convention of Consular Relations, 1963 would be stayed. Of course, this is a provisional order, and Pakistan, the ICJ ruled, is liable to respect its ruling until the case hearing is completed.
The main points of the order are as follows:
A) ICJ has jurisdiction on the case
The ICJ ruled that any dispute stemming from an interpretation of the Vienna Convention of Consular Relations are subject to its jurisdiction. The Court said:
“The Court begins by considering whether it has jurisdiction prima facie to hear the case. It recalls that India seeks to ground its jurisdiction in Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over ‘[d]isputes arising out of the interpretation or application of the [Vienna] Convention’.”
B) Pakistan not giving consular access to Jadhav was 'denial of rights'
The ICJ has observed that failure to adhere to Vienna Convention on Consular Relations, 1963 and not allowing consular access to Jadhav was tantamount to “denial of rights”, as the 2008 bilateral agreement between India and Pakistan nowhere overruled the Vienna Convention per se. The Court said:
“It further notes that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Convention. In the view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of - 2 - the Optional Protocol. The Court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.”
C) India’s claims are plausible
The Court observed that the provisional measured requested by India – staying of execution order and consular access under Vienna Convention – were well within its rights.
The Court said: “It observes that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the Court, therefore, it appears that the rights alleged by India are plausible.”
D) Staying of execution order
Pakistan had tried Jadhav in a military court and sentenced him to death. But as observed by many in India, the military court trial was a “sham” and perfunctory.
Important.Here's why Kulbhushan Jadhav's trial by a Court Martial by the Pakistan Army is a sham: pic.twitter.com/aXgt3U3v2C— Navdeep Singh (@SinghNavdeep) April 10, 2017
The Court noted that there was a “risk of irreparable and urgency” in the fact that Jadhav was under a death sentence and therefore it was well within its jurisprudential rights to intervene on India’s behalf. The Court said that even though Pakistan had indicated that Jadhav wouldn’t be executed before August this year, a hastier action couldn’t be ruled out in the absence of a higher court order because no such assurance was given by Pakistan.
The Court said:
“Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order. The Court also decides that, until it has given its final decision, it shall remain seized of the matters which form the subject-matter of this Order.”
Setting a precedent for multilateral mediation?
Amid all the chaos and conjecture of the Kulbhushan Jadhav case hearing, we need to ask the question staring us in the face. Will India consider multilateral mediation to resolve thorny bilateral issues? Whether it’s at the United Nations itself, or one of its affiliated bodies such as the International Court of Justice, the trajectory of India-Pakistan dispute resolution has been a mixed bag so far.
After setbacks in three international-tribunal cases between 2013 & 2016, India tastes success at ICJ on provisional measures in a 4th case. pic.twitter.com/gAG7DdSX6U— Brahma Chellaney (@Chellaney) May 18, 2017
Because members of the UN are automatically party to the ICJ jurisdiction, of course India and Pakistan are entitled to knock the ICJ’s door to figure out disagreements over various issues. So far, India and Pakistan have knocked the ICJ’s door four times to settle mutual disputes.
In September 1974, India revoked a 1959 jurisdiction to exclude a dispute within the Commonwealth of Nations from the ICJ’s domain. Also “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individuals or collective actions taken in self-defence...”
The precursor to the 1974 resolution was in 1971 and 1973, when India had bitter experience with ICJ.
In 1971, India filed a case against the jurisdiction of the international Civil Aviation Organisation (ICAO) against Pakistan’s demands that New Delhi couldn’t deny Islamabad overflight and landing rights. This was in the wake of the 1971 Bangladesh war and India was openly siding with then East Pakistan, which later became Bangladesh after India conclusively won the 1971 war. However, the ICJ ruled against India and allowed Pakistan overflight and landing rights.
In 1973, Pakistan filed a case to prevent the repatriation of 195 Pakistani prisoners of war in Indian custody to Bangladesh (the Razakars), to face trial on charges of genocide. This case was withdrawn, but it could have gone against India.
Things changed in 1999, when Pakistan, a Commonwealth nation, took India to the ICJ because the matter was way too urgent. India had shot down a Breguet Atlantique patrol plane of the Pakistan Navy in Indian air space over the Rann of Kutch. The ICJ however stuck to the 1974 position that it had no jurisdiction over a Commonwealth nation and it was a matter of defence-related mutual hostility.
In India’s turn, the Commonwealth ruling prevented India from knocking on ICJ’s door when Captain Saurabh Kalia and his platoon members were killed by Pakistani Army, beheaded to boot, with additional torture.
Of late, Pakistan has approached the ICJ over the Indus Waters Treaty, asking India to adhere to it despite sinking mutual ties, especially after the September 18, Uri attack in which 18 Indian soldiers were killed by Pakistani militants. In return, India had sabre-rattled and threatened to turn off the Indus tap, denying Pakistan its share of the waters of Indus.
However, environmental cost and possible refugee crisis notwithstanding, the IWT water war found both criticism and arguments in favour from within India itself. Also, the designated mediator World Bank has tried to intervene and stall the process of a resolution by a court of arbitration, which works in India’s favour. But given the massive environmental and economic impact of the IWT, it’s likely that the 1960 treaty would be adhered to, despite everything.
The case of Kulbhushan Jadhav
Even though the Jadhav case could have come under the 1974 resolution, which was cited by Pakistan (as well as the 2008 resolution on consular access), the ICJ decided to not only entertain the case, but also provisionally ruled in India’s favour.
Is this a new beginning in India’s diplomatic relations to settle disputes (with Pakistan and other countries)? As senior journalists have observed, adhering to international laws and seeking third party mediation, something India has had strong objection to on issues such as Kashmir, mustn’t be ruled out by New Delhi, as long as it’s on a strong wicket.