The approach to the International Court of Justice (ICJ) on Kulbhushan Jadhav goes against conventional thinking in India to date of keeping disputes with Pakistan out of international fora. This was the lesson learnt from the fate of the application to the United Nations Security Council (UNSC) in January 1948 on the Pakistani invasion of J&K. Since then, the government of India’s approach has been to try and limit exposure of bilateral issues to outside influences, legal or otherwise. The Simla Agreement further reinforced this point of view. In the three decades since Simla for instance, India preferred to deal with contestations over the Salal hydroelectric project and the Tulbul navigation project bilaterally with Pakistan. This was often to its cost but was still the preferred option rather than go in for the dispute resolution mechanisms provided for in the Indus Waters Treaty (IWT) itself. India’s only reference to the ICJ was a defensive one and to prevent Pakistan from raising the overflights issue in 1971 in another multilateral body- the International Civil Aviation Organization.
From 2005 the approach to the IWT changed with India agreeing for the first time to approach, jointly with Pakistan, the World Bank to appoint a ‘neutral expert’. Thereafter the use of the dispute resolution mechanisms of the IWT has become more frequent. The current move however represents a more significant change since it is not an engineering dispute of the kind covered under the IWT. It is seeking the ICJ’s intervention in a consular matter and human rights matter, more specifically the death sentence awarded following a court martial, and for violation of procedures and provisions of the Vienna Convention on Consular Relations (VCCR).
Clearly if Jadhav’s life had to be saved, something needed to be done since the bilateral track was not yielding results. The fact that both India and Pakistan are signatories to the VCCR and non-compliance with its provisions can be appealed to the ICJ provided the opening. There is also the fact that India’s acceptance in 1974 of the ICJ’s jurisdiction was made subject to a number of exceptions. These have precluded Pakistan from bringing in issues pertaining to J&K or others before the ICJ. The expectation now therefore is that the focus will remain on the consular case alone and no precedent will be set outside the consular domain.
For Pakistan, this move represents a challenge. First, this is a change from India’s reluctance in approaching multilateral legal fora on bilateral disputes. Second, it will be on the defensive since a retrograde military court martial has been used to summarily award a death penalty to a foreign national. Most of all it will be in a quandary on whether to contest the Indian move on grounds of jurisdiction or similar procedural basis. To do so will mean diluting its longstanding position that third party or international mediation can help in settling disputes with India. Then, Pakistan will consider whether it should present the evidence it claims it has for scrutiny before a more impartial process than a summary court martial. This too is risky given the lengths it has gone to convince its public that an Indian hand explains all its travails in Baluchistan.
{{/usCountry}}For Pakistan, this move represents a challenge. First, this is a change from India’s reluctance in approaching multilateral legal fora on bilateral disputes. Second, it will be on the defensive since a retrograde military court martial has been used to summarily award a death penalty to a foreign national. Most of all it will be in a quandary on whether to contest the Indian move on grounds of jurisdiction or similar procedural basis. To do so will mean diluting its longstanding position that third party or international mediation can help in settling disputes with India. Then, Pakistan will consider whether it should present the evidence it claims it has for scrutiny before a more impartial process than a summary court martial. This too is risky given the lengths it has gone to convince its public that an Indian hand explains all its travails in Baluchistan.
{{/usCountry}}The treatment of nationals of the other country who are prisoners or undertrials has long been unsatisfactory in the India Pakistan context. Various bilateral means attempted to improve this situation have not been very effective. Involving the ICJ to uphold provisions of the VCCR is therefore a novel step and may lead to establishing and raising standards in this difficult area and ensuring consular access, legal representation etc. Nevertheless, the present case has wider implications. The mainstreaming of military courts in Pakistan is a symptom of the civil military imbalance which periodically erupts in Pakistan. That the ICJ hearings will coincide with this ongoing tussle in Islamabad adds more dramatic force to the proceedings. Secondly, Pakistan’s efforts to bolster its international image as a crucible for terrorism have involved blaming India for the backlash it has inevitably suffered. This too will now come under scrutiny. Most significantly, however, the case represents an India Pakistan contestation on an international platform where India has taken the initiative to go to save the life of one of its citizens. In itself the step opens up many possibilities from different points of view in the otherwise repetitive terrain of India Pakistan relations.
TCA Raghavan is a former Indian High Commissioner to Pakistan
The views expressed are personal