Revelations from The Dawn on the Kulbhushan Jadhav case in ICJ

Much like the media frenzy which surrounds a hard fought Indian victory at a cricket match between India and Pakistan, the justified sense of exuberance in India over the provisional measures ordered by the International Court of Justice (ICJ) in the Jadhav Case (India v Pakistan) has been equally countered by criticism and disappointment in Pakistan.

With most of us glued to Indian news, a quick internet search on the website of Pakistan’s oldest English newspaper The Dawn not only reveals Pakistan’s sense of disappointment at the verdict, but also criticism over the performance of its legal team. Views have been expressed not only on whether Pakistan should have appeared before the ICJ in the first place, but also on Pakistan’s failure to utilise all of the 90 minutes of hearing time to argue its defence.

Pakistan’s Former Attorney General, Irfan Qadir, has been quoted as stating,

“[t]he lawyers handling these matters had no experience. The arguments had no weight. They should have been presented in a rational manner…We need a dedicated team for Pakistan, loyal to the country. Pakistan’s jurisprudence has been ruined because of this.”

All of this simply means India is still far from succeeding in nullifying Kulbhushan Jadhav’s trial conducted in Pakistan on the ground that he was denied consular access under the 1963 Vienna Convention on Consular Relations.

Pakistan, in fact, has three possible options. One, it can go the LaGrand (Germany v. USA) way, where the Attorney General of Arizona simply ignored the provisional measures granted by the ICJ and proceeded with the execution of the German nationals. Two, it can go the Breard (Paraguay v. USA) way, where the United States Supreme Court held that the protagonist in that case was disentitled to consular access under the Vienna Convention.

However, unless Pakistan defies logic in a Trumpian way, given the possible political isolation for not complying with the ICJ’s decision, one would believe that Pakistan will not opt for either of the two options.

It is more likely that after the initial disappointment and criticism, Pakistan will end up exercising its third option, which is simply to fight this case before the ICJ. Based on a review of the ICJ’s order, India would now have to begin the big fight. That is because, as the ICJ observed when granting provisional measures, no arguments on the merits of the case or on the interpretation of the Vienna Convention were offered by either party at this stage.

 In fact, at paragraph 32 of its decision, the ICJ noted that,

“…[a]t this stage, it cannot be concluded that Article 36 of the Vienna Convention cannot apply in the case of Mr. Jadhav so as to exclude on a prima facie basis the Court’s jurisdiction under the Optional Protocol.”

It then proceeded to disregard Pakistan’s defence at paragraph 43 on the basis that

“…Pakistan’s arguments that, first, Article 36 of the Vienna Convention does not apply to persons suspected of espionage or terrorism, and that, second, the rules applicable to the case at hand are provided in the 2008 Agreement, the Court considers that at this stage of the proceedings, where no legal analysis on these questions has been advanced by the Parties, these arguments do not provide a sufficient basis to exclude the plausibility of the rights claimed by India…”

Apart from this legal question, the ICJ will also have to consider Pakistan’s position that granting of consular access to Jadhav is conditional “in the light of India’s response to [Pakistan’s] request for assistance” in the investigation process concerning him in Pakistan.

Neither of these questions will be simple walkaways for India. India should obviously flex her political muscle to ensure that Pakistan complies with the provisional measures. There is also the fact that on the world political front, Pakistan is not the United States of America, which can choose to ignore such measures.

On the assumption that Pakistan will pay heed to its own submissions before the ICJ that it respects humanitarian rights, it is now for India to legally seal the wedge it has put into the execution of Kulbhushan Jadav.

Pakistan’s current Attorney General Ashtar Ausaf was quoted in the Dawn as stating,

“Pakistan attended the hearing out of its utmost respect for the court and…because of its conviction that the only way to resolve all outstanding issues is through peaceful means. We are confident that India would not be able to hide the subversive activities it is trying to carry out through its agents like Commander Jadhav.”

That will now have to be countered on hard fought legal arguments – which no doubt the Indian team is well into preparing – to allow India to sail past the finishing line.

Nakul Dewan is an Advocate practising in the Supreme Court of India. He is also called to the Bars of Singapore and England & Wales.