Kulbhushan Jadhav’s case in ICJ today: How, what and why of the India-Pakistan tussle

The International Court of Justice (ICJ) will set out on Monday the modalities to hear India’s challenge to a Pakistan military court’s decision to hang a former Indian naval officer on charges of spying.

It will be after 18 years that an India-Pakistan dispute will play out in the world court. India has stayed away from the ICJ and it is only the second time after 1971 that New Delhi has sought the intervention of the judicial arm of the United Nations against Pakistan.

What to expect on Monday

The Netherlands-based ICJ will likely take up Jadhav’s case at around 1pm India time in the Great Hall of Justice housed in the Peace Palace in the city of The Hague.

Both sides will get 90 minutes each to make their arguments, with India getting the first say.

The court is expected to take some provisional steps till the case is finally decided.

The 15-judge ICJ is not in session. Court president judge Ronny Abraham of France is expected to meet the agents or legal representatives of the two countries and decide on the procedural issues such as the time-frame of the case. Senior lawyer Harish Salve is representing India.

India says Jadhav, a former naval officer, is innocent. He was kidnapped and framed by Pakistan in total disregard of international laws.

The 46-year-old is a spy involved in terrorism and deserves capital punishment, says Pakistan.

Why India moved ICJ after 46 years

The imminent danger to the life of Jadhav, who was given the death sentence by a Pakistani military court on April 10, is India’s reason for moving the ICJ.

India says Pakistan precipitated the situation by ignoring 16 requests for consular access to Jadhav. His trial in the military court was a sham and didn’t follow international norms even though Jadhav is a foreign national.

India accused Pakistan of “egregious violations” of New Delhi’s rights under the Vienna convention on consular relations (VCCR) when it sought ICJ’s intervention on May 8.

The convention allows diplomatic representatives to visit their nationals held prisoner by the host country. India also argued that Pakistan had ignored a bilateral treaty on consular access. India has sought annulment of the death sentence. For the duration of the trial, it wants Pakistan to ensure that Jadhav is not executed.

Why India is cagey about ICJ

There is a reason why India hasn’t moved the ICJ in all these years. In September 1974, India spelt out the matters over which it would accept the jurisdiction of the ICJ, replacing a similar declaration made in 1959.

Among the no-go matters are “disputes with the government of any state which is or has been a member of the Commonwealth of Nations”.

Pakistan, like India, is a member of the Commonwealth, a grouping of 53 countries most of which are former British colonies.

Also, moving the ICJ amounts to taking disputes with Pakistan to a multilateral forum, which New Delhi tends to avoid.

Experts see the latest move as a sign of India’s growing confidence in getting itself heard on international forums.

What has happened so far

After India proceeded against Pakistan, the court president, exercising his powers under the Rules of the Court, urged the Nawaz Sharif government not to take any action that would “prejudice the ability of the court to award relief further”, which has been interpreted as a stay on the execution.

It is hoped that the death sentence will not be carried out till the ICJ gives its final verdict.

Will Pakistan accept ICJ’s jurisdiction in this case?

New Delhi thinks it will.

Both India and Pakistan are signatories to the optional protocol to the VCCR concerning the compulsory settlement of disputes. Pakistan acceded to the protocol in 1976 and India a year later.

According to this protocol, ICJ is the dispute settlement mechanism. Simply put, the court has compulsory jurisdiction in disputes arising out of the interpretation or applicability of the protocol.

Even if Pakistan questions the court’s jurisdiction, it will not have a bearing on the case because India moved the ICJ under Article 36(1) of the court’s statute. This provision is independent of the compulsory jurisdiction norm and relies on treaties in which both countries accept the court’s jurisdiction. Jadhav’s case falls under the optional protocol to the VCCR.

Bickering over consular access

Pakistan says the bilateral pact on consular access is not applicable in matters of national security such as Jadhav’s case. But Indian position is that since the pact is not registered with the UN, it can’t be brought before the ICJ, which is the judicial arm of the world body. Article 102 of the UN Charter says a treaty that has not been registered with the UN secretariat by a signing party cannot be invoked before any “organ of the United Nations”.

Can Pakistan derail Monday’s hearing?

“Pakistan could certainly challenge the court’s jurisdiction but the grounds for a jurisdictional challenge would appear to be rather limited in this case,” says Shashank Kumar, a Geneva-based lawyer who served as a law clerk at the ICJ. To come up with provisional measures, which is what will happen on Monday, the court does not need to give a final decision on jurisdiction, he say .

“Instead, the court can grant provisional measures as long as the provisions invoked by India (the VCCR optional protocol) appear, prima facie, to afford a basis on which the jurisdiction of the court might be founded,” he says.

The court could review the issue of jurisdiction even after granting provisional measures.

Pakistan’s possible defence

a) It can argue that an international treaty is only effective at home after it is codified as a domestic law through an enabling legislation. Consular access is not a right explicitly guaranteed under Pakistan’s diplomatic and consular privileges act, 1972.

b) It can also cite the principle of reciprocity -- that is, Pakistan can also exercise the same caveat that India used with regard to the compulsory jurisdiction. India says the court will have no say on actions taken in self-defence or in resistance to aggression. India successfully fought off a Pakistan challenge on these grounds in 1999.

c) Pakistan can even argue that its violation of VCCR cannot mitigate the seriousness of charges against Jadhav.

(With inputs from Rezaul Laskar)