Kulbhushan Jadhav death sentence: India, Pakistan to face-off at ICJ hearing
The Hague-based International Court of Justice (ICJ) stayed Kulbhushan Jadhav’s execution following India’s submission that the former navy man was kidnapped from Iran.india Updated: May 14, 2017 23:44 IST
India hopes for a positive outcome but braces for a complex legal tussle with Pakistan at the International Court of Justice on Monday to save the life of an Indian national accused of spying.
Rarely has India taken its issues with Pakistan to a multilateral forum but did so in the case of 46-year-old former naval officer Kulbushan Jadhav after a Pakistani court sentenced him to death for espionage and sabotage.
Senior lawyer Harish Salve will argue for India at The Hague-based court, which last week stayed the execution of Jadhav on India’s appeal. India argued that it approached the international court to save the life of an innocent man, who was not given consular access even after 16 requests.
Experts said India’s move to go to the ICJ, second time since 1971, was a sign of growing Indian confidence in facing multilateral forums.
“Countries move the ICJ in a case by case manner,” said TCA Raghavan, former high commissioner to Pakistan, explaining how India’s confidence has grown in the 21st century.
But India hopes that the case, a consular matter, is not about the compulsory jurisdiction of the ICJ over a matter. It can get around the possibility of Pakistan invoking clauses from a bilateral pact on consular access.
On March 29, Pakistan had revised its declaration on compulsory jurisdiction, which spells out terms under which Islamabad accepts the ICJ on matters of dispute settlement.
While it could argue Pakistan could have anticipated the possibility of India moving the ICJ, sources said the “compulsory jurisdiction” is not an issue here.
“The court can revisit the question of jurisdiction even after granting provisional measures. The court only needs to satisfy itself of a prima facie basis of jurisdiction,” said Shashank Kumar, a Geneva-based lawyer who has worked with the ICJ.
India moved the international court because both India and Pakistan are signatories of the optional protocol to the Vienna Convention on Consular Relations (VCCR). This international treaty has the ICJ as the arbiter.
India believes a bilateral consular treaty with Pakistan will not be a factor, though Islamabad has been arguing that the 2008 pact exempts cases related to “national security”.
But the UN charter says “no party … may invoke that treaty or agreement before any organ of the United Nations”. This means Pakistan might not be able to invoke the bilateral treaty.