The International Court of Justice (ICJ) announced its decision in relation to India’s Request for the Indication of Provisional Measures in connection with Kulbhushan Jadhav’s case (the “decision”) on May 18, 2017.
The 15 page decision has been met with strong reactions in both countries. Unfortunately, the debate on electronic media has been led by journalists, lawyers and politicians unfamiliar with the concepts of international law and the actual decision itself.
Therefore, it is important to highlight some key points:
India didn’t win the case. Pakistan didn’t fail. The decision only relates to India’s request for provisional measures (which, by the way, doesn’t even include a request for granting consular access to Jadhav).
At this stage, it was easier and more likely for the ICJ to favour the Indian request as the threshold for assuming jurisdiction was not very high. Please see below paragraph 15 of the decision:
“15. The Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case (see, for example, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, para. 17).”
Pakistan hasn’t failed to convince the ICJ that Jadhav is a spy/terrorist as this is something that will be considered only at the merits stage of the case.
At this stage, ICJ wasn’t even looking to confirm whether the rights sought to be protected by India exist (i.e. consular access to an Indian citizen convicted of activities subversive to the national security of Pakistan).
In fact, it only had to decide whether such rights are plausible enough to be adjudicated upon at the merits stage of the case. Please see below paragraph 42 of the decision:
“42. At this stage of the proceedings, the Court is not called upon to determine definitively whether the rights which India wishes to see protected exist; it need only decide whether these rights are plausible (see above paragraph 35 and Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, para. 64)."
ICJ has not determined as yet whether consular access must be granted to someone in Jadhav’s position. Pakistan has not even had the opportunity to plead the arguments in this respect and again this is something to be debated at the merits stage of the case. Please see below paragraph 43 of the decision:
“43. The rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform without delay the person concerned of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention. Regarding 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, for the same reasons provided above (see paragraphs 32-33).”
There has been no decision by the ICJ regarding Jadhav’s death penalty by the Pakistani Court. In fact, this point is not even under consideration and does not fall within the ICJ’s jurisdiction.
The dispute relates to whether consular access should have been granted by Pakistan and not whether the death penalty is lawful. Please see below paragraph 56 of the decision:
“56. The Court notes that the issues brought before it in this case do not concern the question whether a State is entitled to resort to the death penalty. As it has observed in the past, “the function of this Court is to resolve international legal disputes between States, inter alia when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal” (LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 15, para. 25; Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003, p. 89, para. 48).”
The decision in no way affects the rights of Pakistan to submit arguments in respect of the jurisdiction of the ICJ to deal with this case and in relation to the merits of the case itself.
Pakistan will be given ample opportunity to present its arguments in the next round. Please see below paragraph 60 of the decision:
“60. The decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves. It leaves unaffected the right of the Governments of India and Pakistan to submit arguments in respect of those questions.”
The legal team representing Pakistan in this case has also come under scrutiny in the media and an impression has been given that the lead counsel did not have relevant experience.
This is misleading. Khawar Qureshi QC is a leading member of the Bar of England and Wales who, 24 years ago, in 1993, was the youngest advocate to appear before the ICJ (representing Bosnia) and has taught Public International Law at King’s College London.
The junior counsel, Asad Rahim Khan, is an accomplished young lawyer currently working with the Attorney General’s Office who was called to the Bar of England and Wales, writes regularly for a prominent English newspaper and co-hosts a talk show on DawnNews.
They, and others supporting them, did not have the benefit of time available to the Indian team while preparing their arguments and performed well under a tight deadline.
One can expect to see a much stronger Pakistani legal team at the merits stage of the case.
It is also important to consider that the reasoning put forward by the ICJ potentially opens the doors for Pakistan to bring cases against India resulting from breaches of other international treaties.
Finally, it should be noted that Pakistan now has a right to appoint an Ad Hoc Judge of the ICJ for this specific case.
Media pundits have shown concern regarding the presence of an Indian Judge at the ICJ and the appointment of an Ad Hoc Judge by Pakistan should put to rest any concerns of the ICJ being influenced by one of its members.
However, Pakistan will have to select its nominee wisely. Possible options could include a retired Chief Justice of Pakistan (e.g. Justice Tassaduq Hussain Jillani), Pakistan’s leading international law expert, Ahmer Bilal Soofi (who is also an elected member of the UN Human Rights Council Advisory Committee), or an international candidate such as Judge Bruno Simma (former Judge of the ICJ) who was appointed as an arbitrator by Pakistan in the Indus Water Kishenganga Arbitration.
Indeed, each potential nominee will have his areas of expertise and strength and the decision makers will need to consider carefully the skills that Pakistan would most value in its nominee for the position of the Ad Hoc Judge of the ICJ.
The case has just started and the best legal minds on both sides will be working hard to strengthen their country’s arguments in the next round. Neither side can claim a victory at this early stage.
The ICJ is the world’s most prestigious dispute resolution forum and we can expect important jurisprudence to result from the final outcome of this case.
The author is an international lawyer and former Executive Director of the Research Society of International Law (RSIL) Pakistan.