Tag Archives: India-Pakistan

Kulbhushan Jadhav and the ICJ Verdict

ISSSP Reflections No. 52, May 25, 2017

Author: Anna Catherine

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The International Court of Justice (hereinafter ICJ) in its order indicated provisional measures in the Jadhav case (India v. Pak) on May 18, 2017, which the Indian media celebrated as a diplomatic victory. Notwithstanding Indian show of legal expertise in Hague, the military court of Pakistan could go ahead and carry out the execution of Jhadav in defiance of the ICJ’s order. This leads to two pertinent questions; (i) Will Pakistan budge? (ii) Is the execution of Mr. Jhadav inevitable?

This case is of paramount significance in understanding recent engagement of India with Pakistan as the former has moved the international court for the first time in forty- six years. India instituted proceedings against the Islamic Republic of Pakistan alleging violations of the VCCR (Vienna Convention on Consular Relations). Mr. Jhadav was given death sentence by the military court of Pakistan and in the process denied him consular access guaranteed by the VCCR to which both disputing states are parties. India in its application sought for interim relief by way of restitution in integrum i.e restoration to original condition and premised its request on the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes.

At this preliminary stage, the court order does not verify the credentials of the claims of either parties; and has merely indicated ‘provisional measures’ i.e, to withhold the execution until the final judgement based on the merits of the case.

Pakistan’s arguments.

Pak’s request for rejection of India’s application is based on three major arguments;

  • First, Pakistan argues that ICJ has no jurisdiction over a bilateral dispute involving ‘espionage’ and ‘security threat’.
  • The second argument is based on the ‘urgency’ of the case. The fact that the date of execution is not determined and the provision of the convict to seek clemency under Pakistan’s domestic law indicates that a court order indicating provisional measures is unnecessary at this point in time.
  • Third, unavailability of provisions under VCCR for the  reversal of the sentence.

The Court’s reasoning

The Court first considered whether it has jurisdiction prima facie to hear the case. India has sought ICJ involvement by invoking Article 1 of the Optional Protocol which reads, “disputes arising out of the interpretation or application of the Vienna Convention are within the compulsory jurisdiction of the court.” Thus the court observed that the allegations made by India i.e, failure of Pakistan to provide the requisite consular notifications and denial of communication and access to Jadhav, appear to be capable of falling within the scope of the Convention.

Another point that emerged in the case was the 2008 Indo – Pak bilateral agreement on consular access. It excludes detentions and arrests on grounds of ‘political and security concerns’ from the general principle of consular access that applies otherwise. In this case the court observed that the 2008 agreement does not change its conclusion on jurisdiction. Nevertheless, certain commonwealth countries enjoy exceptions in accepting compulsory jurisdiction of ICJ based on certain treaties and declarations. Pakistan, on the previous night of Jhadhav’s death sentence, modified its 1960 declaration to limit compulsory jurisdiction of ICJ under Article 36(2). As India has sought ground of jurisdiction under Article 36(1), the modified declaration did not affect the Indian case at this stage.

With regard to the ‘urgency’ argument, Pakistan had given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. Going by precedents set by ICJ in earlier cases, an undetermined date for execution was no case to preclude indication of provisional measures. Thus the court ruled having found a risk of irreparable prejudice to the rights claimed by India.

Will Pakistan budge?

With a stay of the execution of Jhadav in place, what is yet to be seen is Pakistan’s response. Will Pakistan continue the domestic trial of Kulbhushan Jhadav and execute him in defiance of ICJ? 

It is to be noted that Pakistan consented to the case being heard at the International court and sent its representation to Hague and asserted the Pak side of the argument. Had Pakistan not been optimistic of a favourable outcome out of international arbitration, it would have made no effort to present a strong case at all. Pakistan prepares to challenge the jurisdiction in another hearing in Hague soon. If it’s natural choice was to defy any form of international mediation it would make no effort to challenge the current court order. The nature of Pakistani state’s participation in the dispute’s hearing is a harbinger of its hopefulness to draw world attention to India’s activities within its borders. Hence, non- compliance and belligerence would not be Pakistan’s first choice.

On the contrary, in case of a harsh stance of Pakistani military as its policy towards India, it could follow the precedent set by United States by defying ICJ in the persecution of three foreign nationals citing its court’s predominance over a national affair. Although a possibility, it is unlikely due to several reasons. The recent leaks in the newspaper “Dawn” indicated a civil – military rift within Pakistan on several issues, Kulbhushan Jhadav being one of them. The controversial meet of Indian businessman Jindal with Prime Minister Nawas Sharif, following which India made its application in ICJ is speculated as divergence of the civilian government and Pakistani military on its issues with India. Pakistani newspapers reported soon after the ICJ hearing that confidante of Sharif brothers mentioned their willingness to accept ICJ ruling. In addition, Pakistan Punjab government contradicted the Foreign Office and said the country will accept the verdict of the Hague. With such differences within the state an outright defiance of international law is unlikely.

Is execution inevitable?

It is important to distinguish the court’s involvement in the preliminary stage from the assessment of the merits of the case. The ICJ in similar cases earlier have limited its judgement to “review and reconsideration by the detaining state”. Unavailability of an ultimate relief under the convention limits the reach of ICJ. However, if Pakistan continues to challenge the jurisdiction of ICJ over the issue, it would pose an opportune for India to delay the proceedings indefinitely, averting execution of Jhadav. In the absence of precise treaty obligation, India could use its diplomatic flair to settle the dispute out of court, bilaterally with Pakistan once a sense of fatigue and exhaustion sets in the struggle.

On the other hand, if Pakistan manages to develop its arguments along the proceedings of the court and build a strong case of ‘espionage’ and ‘national security threat’ against India, the outcome will be drastically different. The onus is upon India to be prepared for a battle to defend its morale and international reputation.

About the Author

Anna Catherine, Post Graduate Scholar, Christ University & Research Intern, ISSSP, NIAS. She can be reached at <annacatherine224@gmail.com>

Tehmina Janjua: Internal Challenges for the New Foreign Secretary

ISSSP Reflections No. 49, February 27, 2017

Author: D Suba Chandran

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Tehmina Janjua, when she takes over the Foreign Secretary in March 2017, will become Pakistan’s first woman Foreign Secretary. Her challenges are numerous – both within Pakistan (especially vis-a-vis foreign policy decision making structure) and outside – especially with big powers such as the US and immediate neighbours – India, Afghanistan and Iran. Besides the above, she will also have to face rest of the international community – in addressing Pakistan’s negative image.

There seems to be an extra focus (though unfair) in the media on she being the first “woman” foreign secretary. Perhaps, it may have played a role in the decision making, as an image building exercise at the international level. There is likely to be a series of changes in the next few weeks. Pakistan’s serving foreign secretary Aizaz Chaudhry will be replacing the present Ambassador to the US. Abdul Basit, Pakistan’s High Commissioner was expected to replace Aizaz, but the Prime Minister seem to have opted for Tehmina Janjua.

Tehmina’s track record is substantial; she is a highly experienced diplomat with so much understanding at the international levels. She has worked extensively with the United Nations and currently she has been Pakistan’s Permanent Representative to the UN in Geneva. She was earlier the spokesperson for the external ministry and has served as Ambassador to Italy from December 2011 to October 2015.

There have been women diplomats in Pakistan, highly decorated, efficient and successful, for example Maleeha Lodhi. Maleeha, though not a career diplomat, is currently Pakistan’s Permanent Representative to the UN in New York; earlier she has served as Pakistan’s High Commissioner to the UK and Ambassador to the US.

Tehmina may not have served as an Ambassador in the region, but has enough international experience. The real issues however, for Tehmina will not be related to whether she has served in the neighbourhood or not. There are serious domestic and international challenges that she would be inheriting. Especially the domestic challenges that would restrict her functioning, is the focus of this short commentary.

It is not easy to be a Foreign Secretary in South Asia in the first place. Given the political decision making process, role and actual position of the Prime Minister/President and bilateral relations with the neighbours and big powers – the position of foreign secretary in the region has always been challenging. In India, the situation has been improving since the 1998 nuclear tests; starting from Shyam Saran, there have been a series of Foreign Secretaries, who have been able to discharge the functions expected of the external ministry.

In Pakistan, there are additional challenges to the Foreign Secretary. First and foremost is the decision making process and the actors involved in it. Though in a democracy, Parliament and elected representatives led by the Prime Minister is expected to play a predominant role in shaping country’s foreign policy, this has not been the case in Pakistan. The military has been playing a powerful role not only in foreign policy decision making, but also on Pakistan’s strategic assets and their developments. Shaping the relations with the neighbourhood and the big powers – especially the US and China has remained more with the GHQ than with the Parliament and External Ministry.

Second, the GHQ would prefer complete control over foreign policy especially vis-a-vis Pakistan’s immediate neighbourhood. Perhaps, that could be a reason also to choose Tehmina, as she has enormous international exposure, than any substantial experience in the immediate neighbourhood. For Tehmina, the above would be the biggest challenge, which her predecessors also inherited.

Third, added to the above restriction is the absence of a full time foreign minister. Nawaz Sharif for reasons best known to him has not appointed a full time foreign minister and has been running the external relations through Special Advisors, in this case Sartaj Aziz.

Though Sartaz Aziz is extremely capable, he is not the “Foreign Minister” chosen from one of the elected representatives of the Parliament. Special Advisor may enjoy a cabinet position, but it is not equivalent to being a Foreign Minister. The protocol conscious diplomatic community should be well aware of the difference.

One could also argue, foreign minister in Pakistan is more symbolic. Hina Rabbani was the last foreign minister of Pakistan and the media, especially social media was highly critical of her.

Finally, the biggest domestic challenge with huge international ramification – militancy and militant groups. While the foreign ministry in Pakistan may have no access, leverage or control over the militant groups within Pakistan, the diplomats will be at the receiving end at the international level – both fire fighting and image building. Even for the Pakistani Ambassador to China, with whom they share an “all weather relationship” that is “higher than the Himalayas” and “deeper than the Oceans” (and now “sweeter than honey”), it would not be an easy task to defend Pakistan’s image and policies relating to militancy.

Worse, for the foreign ministry of Pakistan, they would not be privy to the larger interaction between the political leadership, military and ISI on the use and abuse of militant groups as a strategic asset on Pakistan’s eastern and western borders. As a result, their envoys serving in New Delhi, Kabul and Tehran may not be fully aware of the larger calculations behind actual developments along the borders. The foreign secretary, at times may know about the border developments and Pakistan’s response from his or her envoys in the neighbouring countries than from his or her own Parliament!

All the best Tehmina Janjua. Given the inherent limitations, we sincerely wish, you take proactive measures to stabilise the LoC, strengthen it further with pursuing the earlier agreements between two parts of J&K, and normalise Pakistan’s relationship with India. Hope you bring a new perspective and a change as well across the Wagah.

 About the Author

Dr. D. Suba Chandran is Professor, National Institute of Advanced Studies (NIAS), Bengaluru. He can be reached at <subachandran[at]gmail.com>

Non-violent compellence plays to India’s strength, Pak’s weakness

Mathrubhumi, September 27, 2016

imageAs tensions escalate between India and Pakistan as fallout to the terror strike on army camp in Uri, a well-timed book authored by George Perkovich and Toby Dalton, associated with the Carnegie Endowment for International Peace, has hit the stands. The book — Not war, not peace? Motivating Pakistan to prevent cross-border terrorism –- is armed with many references taken from well-authored articles and newspaper reports that highlight India’s military might and shortcomings. The authors have tried hard to put across new strategies to tackle cross-border terrorism targeted at India. The National Institute of Advanced Studies (NIAS), Bengaluru, is holding a discussion on the book on September 28 to be attended by a host of military brains and researchers.

To read the complete article click here

Pak attacks on India could increase in future, suggests book

The Deccan Chronicle, September 29, 2016

How do you motivate Pakistan to deccan_chroniclestop cross-border terrorism and change its behaviour towards nuclear attacks, especially when Pakistan army dictates the nuclear policies?  Was India wrong in talking to a civilian government in Pakistan, while a military government controlled the nuclear policies? These and many other existential dilemmas that face India when tackling its oldest enemy – Pakistan – consumed a  battery of the city’s best minds while discussing the probable solutions at the book launch of ‘Not War, Not Peace? – Motivating Pakistan to Prevent Cross-border Terrorism’, co-authored by George Perkovich and Toby Dalton of the prestigious Carnegie Endowment for International Peace. The book was released by former Indian Ambassador to Russia P.S Raghavan at an event co-hosted by the National Institute of Advanced Studies, and The Takshashila Foundation, on Wednesday.

To read the complete article click here

To buy or not to buy: F-16, Pak, US & India

The Tribune, May 19, 2016

D. Suba Chandran, Professor, National Institute of Advanced Studies, Bangalore

TribuneF-16 fighter aircraft have become the latest bone of contention in the volatile Pakistan-US relations. During the last month, there have been a series of statements, demands, counter demands, threats and carrots, both from the US and Pakistan.  

The sale of eight American F-16s to Pakistan has been plaguing the relations between the countries, primarily due to American demands on Pakistan “to do more in Afghanistan”, differences within the US between the State Department, White House and the Congress, and (more importantly) who would foot the bill for the sale. 

To read the complete article read here

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