Pakistan’s legal follies at Hague court

As I had indicated in my article published on 18 May 2017 in this newspaper, the International Court of Justice (ICJ) was likely to hold that it has jurisdiction in the case of Kulbhushan Jadhav; it did exactly that in its order on Thursday. I had communicated my views on the question of jurisdiction to Pakistani officials, albeit informally, though starkly: the Hague-based court has jurisdiction in this matter.

At the same time, I had also suggested the need to devise a strategy on how to respond to the Indian case. I proposed various steps to achieve that outcome and also the kind of legal team that would be required: a team not only well versed in the relevant law but also lawyers who could read the mind of the court and appreciate the general worldview of the ICJ, the world’s highest judicial body, in these type of cases.

Pakistan made a number of legal follies. First, it misread what the Indian case was based upon. India invoked Article 36(1) of the Vienna Convention on Consular Relation 1963 (VCCR) whereas Pakistan concentrated its argument on Article 36(2) of the VCCR which has no bearing on the case. This was a gross legal miscalculation. Second, Pakistan based its case mainly on the 21 May 2008 agreement with India. That agreement is not registered under Article 102 of the UN Charter which states: ‘(1) Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. (2) No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations’.

Pakistan very unwisely called it a technicality and banked on Article VI of the 2008 agreement. Pakistan can still register the agreement with the UN and get some benefit out of it in the future proceedings.

Third, Pakistan remained obsessed with the argument that ‘Commander Jadhav’ is a spy and terrorist implying that he has no rights under the VCCR. One cannot find any legal provision, in the transcript of oral submissions, in support of this proposition. It was just rhetoric.

Fourth, Pakistan had informed India that it had arrested an Indian national, Jadhav, and India, at the ICJ and otherwise accepted it, but still at the oral hearing Pakistan insisted on questioning what India had done to prove that he was an Indian national. Pakistan even questioned why, for instance, a birth certificate was not provided as in the situation of Mexico in the Avena case (Mexico versus United States) on 5 February 2003.

Finally, Pakistan said that the ICJ is not a court of criminal appeal. This is yet another miscalculation. India has never said that it is appealing against the death sentence of its national by a Pakistani court martial. One can point out a few more but let us turn to future.

Legally speaking, this is not the end of the road. It is just the beginning and Pakistan still has time to rethink its strategy. The first sensible step will be to observe the order of the ICJ in letter and in spirit as this is a legally binding order and non-compliance could lead to further orders against Pakistan and it may become liable to reparation. Second and most importantly, if Pakistan is aiming for a robust legal fight, it should listen carefully to candid confidential legal advice and chalk out a strategy accordingly.

Published in The Express Tribune, May 20^th, 2017.

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