International Strategic and Security Studies Programme (ISSSP)

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>