On May 8, India submitted an application to the International Court of Justice against Pakistan’s arrest of the Indian spy, Kulbhushan Jadhav. The ICJ President, Judge Ronny Abraham, wrote to the Government of Pakistan on May 9, to not undertake any action on the Jadhav case until the ICJ has had a chance to examine India’s petition against Pakistan.
In response, a set of recommendations has been sent to the Prime Minister’s office on Friday. These recommendations have been kept confidential so that the adversary in the case is not made aware of Pakistan’s strategy, stated Attorney General Ashtar Ausaf. He revealed that Pakistan aims to plead its case forcefully to the ICJ on Monday. However, this stance or ‘strategy’ appears to be highly perplexing if the relevant precedents and assessments given by legal experts are taken into perspective.
Prominent lawyer Saad Rasool appeared on Dr. Moeed Pirzada’s show last night and explained why this ‘letter’ by the Indians to the ICJ revealed their hypocrisy.
ICJ is by no means an international regulatory authority rather, its role so far has been that of an official mediator to which states turn to when they need to resolve disputes
It is vital to understand that Pakistan is in not obliged to accept ICJ jurisdiction in this matter. Furthermore, accepting to engage India in the ICJ would be grievously detrimental to Pakistan’s national interest.
What is the ICJ and what can it actually do?
India’s application to the ICJ has no locus standi and Pakistan risks calamitous consequences on its national security if it entertains India by consenting to participate in any ICJ proceedings regarding Kulbhushan Jadhav’s arrest and prosecution. We have endeavored to highlight few principles concerning ICJ’s jurisdiction and role in international and bilateral affairs between the two countries.
ICJ is by no means an international regulatory authority rather, its role so far has been that of an official mediator to which states turn to when they need to resolve disputes. All member states of the UN can approach the ICJ however, all of them have explicitly attached conditions on the extent of ICJ’s jurisdiction concerning their respective national interests.
India put forth a declaration in 1974 outlining the conditions where it would not accept ICJ jurisdiction. Below are two points which are relevant in India’s current application to the ICJ.
They included the following:
- Disputes with government of any state which is or was part of the Commonwealth;
- Disputes related or connected to facts, hostilities and armed conflicts.
Pakistan is in no way obliged to appear before the ICJ in this particular case. It should simply state as Indians have before that it does not accept the ICJ’s jurisdiction on this case.
These conditions clearly state that in the case of any disputes with Commonwealth countries India reserves the right to not participate in any ICJ proceedings. It quoted this declaration to get itself out of the 1999 plane dispute that Pakistan had taken to the ICJ.
Similarly, Pakistan also has a declaration in place regarding the jurisdiction of the ICJ in which it is stated that Pakistan is not bound to participate in any proceeding which involves “matters related to the national security of the Islamic Republic of Pakistan.” It also declares that the Government of Pakistan specifically agrees to the jurisdiction.
Furthermore, Pakistan has a bilateral agreement with the Indians – the 2008 bilateral agreement on Consular Access – signed between the two countries that allows for both sides to make an exception to the granting of access when issues of “national security” were involved.
Hence, it is clear that Pakistan is in no way obliged to appear before the ICJ in this particular case. It should simply state as Indians have before that it does not accept the ICJ’s jurisdiction on this case.
Pakistan cannot invoke the jurisdiction of the ICJ on any issue that arises from the interpretation of a multilateral treaty if India was not joined with Pakistan as party to the case presented before the court.
India claims that Pakistan is violating the Vienna Convention on Consular Relations (VCCR). India and Pakistan are both signatories to the Vienna Protocol on Consular Relations, 1963, which mandates that consular officials of any country “shall have the right to visit a national of their sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation”, however conditions highlighted by both Pakistan and India exempt them from any ICJ proceeding related to issues of multilateral treaties in which both parties are not consenting.
Past Mediations of ICJ between India and Pakistan
The Hague has taken up three cases involving India and Pakistan where the latter had initiated 2 of them.
In 1971, India filed a case and challenged the jurisdiction of the International Civilian Aviation Authority (ICAO) to decide over India’s legality of banning overflight and landing rights to Pakistan. India had banned Pakistan’s overflight after a flight of the Indian Airlines was hijacked in January 1971. India did this when West Pakistan was facing a civilian disturbance in East Pakistan and the blockage of airspace created a huge obstacle for West Pakistanis to go into East Pakistan. The ICJ gave the verdict in favor of the ICAO and against India.
In 1973, Pakistan filed a case to stop the repatriation to Bangladesh of 195 Pakistani nationals in Indian custody. From the outset, India refused to recognize the court’s jurisdiction on the basis that it was not a consenting party to the case and following negotiations between Pakistan and India which had resulted in an agreement signed at New Delhi on 28 August 1973. Pakistan requested ICJ to record its discontinuance in the case as it would facilitate further negotiations.
The last time both countries battled in the Hague was in 1999, when Pakistan filed a case after India shot down a Breguet Atlantique patrol plane of the Pakistan Navy in the Rann of Kutch, in Pakistani airspace. India succeeded in blocking the case by broaching upon the fact that ICJ had no jurisdiction in matters between two Commonwealth countries. In a preliminary letter to the ICJ, India clearly stated its objections to Court’s jurisdiction by citing its Declaration of 15 September, 1974, which states that Pakistan cannot invoke the jurisdiction of the ICJ on any issue that arises from the interpretation of a multilateral treaty if India was not joined with Pakistan as party to the case presented before the court.
Therefore, it is evident that consenting to participate in any proceedings regarding Kulbhushan Jadhav would be tantamount to handing over matters of national interests to a foreign body. Pakistan government is well within its rights to declare this a non-ICJ jurisdiction matter. Taking any other stance would only be in India’s favour.