THE preliminary order of the International Court of Justice (ICJ) to stay the execution of Kulbhushan Jadhav till its final verdict is very much in discussion. Dawn has also written a highly balanced editorial ‘Jadhav’s case’ (May 20). Before forming an opinion of this emotional but complicated issue one has to look at several facts. There is a difference between municipal law and international law.
Since sovereign states owe allegiance to no supra-state body, international law is not above the states but amongst them.
Professor Louis Henkin, in his book, How Nations Behave? argues that most states most of the time accept the jurisdiction and verdicts of the ICJ and non-compliant are disliked by the international community. Noam Chomsky regards them as “rogue states”.
It is good that Pakistan accepted the compulsory jurisdiction clause of the ICJ in the 1960s. Pakistani lawyers pleaded the case vigorously, but it had two major weaknesses. First, Jadhav, a foreign citizen and an officer of the Indian navy, should have been given consular access.
Secondly, even if he was a terrorist and a spy instead of a military tribunal, he should have been tried like Ajmal Kasab by a civilian court and provided a defence lawyer. India engaged Advocate Abbas Kazmi to defend Kasab.
This international legal norm was not observed by us in Jadhav’s case. So, these points went in India’s favour at the Hague. And the final verdict may be the same.
Instead of wrangling at home, diplomacy, especially its back-channels, is the best means to resolve this issue. Above all, Pakistan and India should change their perceptions of each other.
Dr Mehtab Ali Shah
Sindh University
Jamshoro
Published in Dawn, May 23rd, 2017
