India may be breathing easy after the International Court of Justice (ICJ) stayed the hanging of its national Kulbhushan Jadhav but the past and fractured ties with Pakistan will likely come in the way of getting the Indian national home safely.
Late on Tuesday, the court, based in the Dutch city of The Hague, stayed the death sentence handed down to the former naval official by a military court in Pakistan that found him guilty of spying.
India in the past has questioned the ICJ authority to decide on the dispute between the two countries. Moreover, ties between the two countries are tense following a string of border clashes and terror attacks in India.
Here is what lies ahead:
Will Pakistan accept the ICJ order?
Technically, it should but if the past is anything to go by, it may not.
India believes the ICJ can look into Jadhav’s case as both the countries are signatories to the optional protocol of the Vienna convention on consular relations (VCCR). The protocol says any dispute arising out of the interpretation or application of VCCR shall lie within the jurisdiction of the ICJ.
But, last time India won a case against Pakistan was by arguing the court didn’t have the jurisdiction on matters involving two Commonwealth countries.
“I am not sure it is a wise move to go to ICJ. Pakistan could cite precedence of India citing ICJ having no jurisdiction in a case in 1999 involving Pakistan,” said Narendra Singh, secretary general, Indian Society of International Law.
Singh, a former head of foreign ministry’s legal and treaty division, was referring to India taking Pakistan to The Hague-based court in 1999. A Pakistani military plane had been shot down in the Indian air space over the Rann of Kutch. India told ICJ it didn’t have the jurisdiction to hear the case, an argument accepted by the court.
In September 1974, New Delhi spelt out the issue over which it would accept the jurisdiction of the ICJ, replacing a similar declaration made in 1959.
Among the matters over which India does not accept the ICJ jurisdiction are: “Disputes with the government of any state which is or has been a member of the Commonwealth of Nations”.
India and Pakistan are both members of the Commonwealth, a grouping of 53 countries most of which are former British colonies nation.
What India wants
New Delhi has asked for these provisional measures from the ICJ till the case is decided:
• Pakistan should take all steps necessary to ensure Jadhav is not executed.
• It reports to the ICJ measure taken to secure Jadhav.
• Pakistan should not take any action that could prejudice the rights of India or Jadhav.
• India also asked the ICJ president to exercise his power under Article 74, section 4 of the rules of the ICJ.
According to section 4, “Pending the meeting of the court, the president may call upon the parties to act in such a way as will enable any order the court may make on the request for provisional measures to have its appropriate effects.”
Now, both sides will argue their case and India, represented by senior lawyer Harish Salve, wants immediate suspension of the death sentence and directions to Pakistan to annul the execution order issued in violation of international law.