The ICJ verdict

The long-awaited judgement on Kulbhushan Jadhav — the Indian spy who was captured by the Pakistani military in Balochistan while he was trying to cross into the country from Iran — has finally been announced by the International Court of Justice (ICJ) at The Hague.

The ICJ judgement is being celebrated as a win by both India and Pakistan. For India, the victory is that the international court has held — firstly, that Pakistan’s denial of consular access to Jadhav was in breach of Article 36 of the 1963 Vienna Convention on Consular Relations. Consequently, the court has directed that “Pakistan must inform Mr Jadhav of his right under Article 36, paragraph 1(b) and allow Indian consular officers to have access to him and to arrange for his legal representation”.

Secondly, the court — while taking note of the assurance of the agent of Pakistan (Attorney General) that High Courts of Pakistan exercise “effective review jurisdiction”, and without commenting on the charges against the convict — concluded that “Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of conviction of Mr Jadhav, so as to ensure that full weight is given to the effect of violations of the rights set forth in Article 36 of the Vienna Convention taking account of paragraphs 139, 145, and 246 of the judgement”.

In Pakistan, the international court’s judgment is being celebrated because the court, while accepting Pakistan’s stance, denied the Indian plea to annul the conviction and sentence of Jadhav, and his retrial in a civilian court.

The judgement by implication has two-fold effect:

1. It is an expression of trust in the power of judicial review of the High Courts under Article 199 of the Constitution in Pakistan.

2. It has provided an opportunity to the two estranged neighbours — Pakistan and India — to mend fences under the rule of law.

Pakistan’s ad hoc judge Justice Tassaduq Jillani in his dissenting opinion about the ICJ verdict said:

3. Since the Vienna Convention is meant to promote friendly relations among countries, it does not apply to spies and those involved in sabotage; and even if it is made applicable to the present facts and circumstances, Pakistan has not breached any of its provisions.

4. That the evidence on record with regard to such charges remained un-rebutted by India and which clearly shows abuse of rights, and this alone disentitles India to any relief from the court. 3. That the main factor which marred the relations between the two neighbouring countries is the non-implementation of the United Nations Security Resolution No 47 of 1948, which mandated India and Pakistan to hold plebiscite in occupied Kashmir to decide its future.

It is hoped that both sides proceed in the letter and spirit of the ICJ verdict, and the opinion of Justice Tassaduq Jillani qua Kashmir enables the two countries to open a new chapter in their bilateral relations.

Published in The Express Tribune, July 21^st, 2019.

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