New Delhi hopes Pakistan questioning the jurisdiction of International Court of Justice (ICJ) will not weaken its prospect of getting relief for former naval officer Kulbushan Jadhav who had been sentenced to death on charges of espionage and sabotage by a Pakistani military court.
The Indian hopes lie on the twin points that the case, a consular matter, is not about the compulsory jurisdiction of the ICJ over a matter. It can also get around the possibility of Pakistan invoking clauses from a bilateral pact on consular access.
The ICJ, a judicial arm of the UN, will begin hearing the case on Monday. India had approached the ICJ on Tuesday and obtained a stay on the execution of Jadhav. A day later, Pakistan said it was reviewing the jurisdiction of the ICJ.
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 ICJ, informed sources said the ‘compulsory jurisdiction’ is not an issue here.
India moved the international court under 36 (1) of the ICJ statute, because both India and Pakistan are signatories to the Optional Protocol to the Vienna Convention on Consular Relations (VCCR). This international treaty has ICJ as the arbiter in disputes.
“In this case, India invokes the Optional Protocol of the VCCR. The bases for jurisdiction are separate from what happened in 1999 where in an aerial incident, ICJ upheld Indian view on jurisdiction,” said a source.
The Indian side also believes that the bilateral consular treaty with Pakistan will not be a factor here as Islamabad has been arguing that this treaty of 2008 exempts those cases that are related to “national security.”
But the UN charter says “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 (102) 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 before the ICJ.