It was a sensible move on Pakistan’s part to argue the case of Kulbhushan Jadhav at the International Court of Justice (ICJ) simply because it has an arguably winnable case. Pakistan needs to adopt a two-pronged strategy even if provisional measures are indicated by the ICJ. Provisional measures do not touch on merits of the case, the ICJ only needs to be satisfied that it has, prima facie, jurisdiction.
First, Pakistan may want to challenge the jurisdiction of the ICJ but it is likely that it will not succeed. It has accepted the compulsory jurisdiction of the ICJ in the case of Vienna Convention on Consular Relations 1963 (VCCR) by acceding to the Optional Protocol concerning the Compulsory Settlement of Disputes 1963.
On 29th March 2017 Pakistan made a declaration to the ICJ’s jurisdiction under Article 36(2) of the ICJ Statute excluding compulsory jurisdiction regarding disputes on certain issues whereas India’s claim is based on Article 36(1), ie, ‘the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force’ [emphasis added]. Furthermore, Pakistan relies on Article 6 of a bilateral agreement with India of 21 May 2008 on consular access. The objective of this agreement is furthering ‘humane treatment of nationals of either country arrested, detained or imprisoned’ but its Article 6 gives discretion to both parties ‘in case of arrest, detention or imprisonment made on political or security grounds’ to examine such cases ‘on its merits’.
The agreement is sketchy and does not explain what ‘on its merits’ means. Article 73(2) of VCCR allows such agreements but these must confirm or supplement or extend or amplify provisions of the VCCR, not restrict or undermine comparative favourable provisions of the VCCR. Article 6 of the 2008 agreement has created a particular category of cases where India and Pakistan may deny consular access if, in their view, they do not meet the undefined merit test. Article 6 seems to be incompatible with the object and purpose of Article 36 of the VCCR which allows consular access to persons arrested, detained or imprisoned. Consequently, Pakistan may not succeed in shielding itself from the ICJ jurisdiction on Article 6 grounds. It is likely that the ICJ will find that it has jurisdiction.
Second, Pakistan has a better chance of persuading the ICJ that the Indian claim is not admissible for two main reasons. First, Mr Jadhav is an Indian spy and is subject to trial under domestic law and all domestic venues have not been exhausted yet. Second, India has not resorted to what it agreed to do by acceding to the Optional Protocol concerning the Compulsory Settlement of Disputes 1963, ie, Articles 2 and 3 state that parties may agree to resolve their dispute through arbitral tribunal or a conciliatory procedure before instituting proceedings at the ICJ.
India has neither waited for domestic law to complete its course nor has it resorted to other conciliatory mechanisms under international law before taking its case to the ICJ. Taking a dispute to the ICJ seems to be the last resort but India elected it as a first option. Pakistan may make a convincing argument on admissibility.
Even if Pakistan does not succeed in convincing the ICJ on jurisdiction or admissibility, it can make a convincing case on merits under domestic and international law (especially humanitarian law and human rights law). The key is not to mix legal arguments with political as the ICJ is a principal judicial organ of the UN. It is not a political forum and political arguments will not do any good. A team of experts well-versed in the military laws of Pakistan and international law (ie humanitarian and human rights law) will be required to get the right outcome.
Published in The Express Tribune, May 17th, 2017.