There is still a long way to go before India manages to bring retired naval officer Kulbhushan Jadhav home, if at all, but it is fair to say that Pakistan has been outsmarted in round one of an intriguing battle of diplomatic chess.
Indian media has interpreted International Court of Justice's (ICJ) missive to Pakistan in roughly two ways. While one section sees this as a diplomatic victory and has exhibited chest-thumping triumphalism, another section reads it as nothing more than a temporary reprieve and has painted a picture of inevitable fatalism. Both interpretations are wrong.
The ICJ ruling is neither a 'verdict', nor a 'stay'. It is quite simply a communiqué to Pakistan not to carry out the execution of the Indian national at least until both sides are given the chance to present their respective cases in an oral hearing at the ICJ court in The Hague, Netherlands, on Monday.
— CIJ_ICJ (@CIJ_ICJ) May 10, 2017
As The Times of India reports, Harish Salve's 20-minute " intense and urgent briefing" to the ICJ registrar - since the court was not in session - prompted president Ronny Abraham to shoot off a midnight letter to Pakistan Prime Minister Nawaz Sharif. The letter, cast in legalese, is interesting.
"In my capacity as president of the court, and exercising the powers conferred upon me under Article 74, paragraph 4 of the rules of the court, I call upon Your Excellency's government, pending the court's decision on the request for the indication of provisional measures to act in such a way as will enable any order the Court may make on this request to have its appropriate effects."
The wording makes it appear as if it is nothing more than a "request" to Pakistan to postpone temporarily its plans of sending Jadhav to the gallows but the effect of the letter, as Devirupa Mitra writes in The Wire quoting a Hague-based ICJ official, "was more in the nature of a warning."
This needs a bit of explanation. Both India and Pakistan are signatories to Optional Protocol of Vienna Convention. The protocol gives ICJ the power to adjudicate on matters related to interpretation of Vienna Convention. Member states may bring cases related to flouting of such norms to ICJ. In its application before the court, India reportedly pointed out four such previous instances of breach in Vienna Convention where the ICJ was called upon to adjudicate. In The Wire report mentioned above, Mitra points out that these were "the 1986 border and transborder armed actions case (Nicaragua vs Honduras); The 1971 appeal relating to the jurisdiction of the ICAO council (India vs Pakistan); The 1999 La Grand case (Germany vs US); The 2008 Avena case (Mexico vs US)."
On ICJ's power to enforce a ruling, Soujanya Sridharan writes in The Hindu that "judgements of the ICJ are considered binding and are without appeal. It is rare for a decision not to be implemented. However, the Court itself has no direct powers to ensure implementation… and members can approach the UN Security Council for matters relating to non-compliance."
The key question is, will Pakistan honour an unfavourable verdict? Islamabad is yet to give its official reaction to the ICJ communiqué at the time of writing but it has already made it clear on several occasions that on Jadhav, it will go by bilateral agreement rather than Vienna Convention. It is obvious because Pakistan is aware that it is guilty of violating several international conventions in Jadhav case.
As the press statement by ICJ points out, India has in its application sought several reliefs on Jadhav. One among these is "by way of restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36[,] paragraph 1 (b), and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention."
Note what India is doing. It is segregating Jadhav's case from the purview of bilateral relationship, stripping it of the baggage associated with Indo-Pakistan relationship and placing it within the ambit of international law.
India hopes that such a move will make it difficult for Pakistan to treat Jadhav merely as a "bilateral issue" because by denying India consular access 16 times, sitting on a visa application from Jadhav's parents, conducting a secret trial via a military court without proper and adequate legal representation and linking the granting of consular access to probe assistance Pakistan has made a mockery of the 1963 Vienna Convention and the 1966 International Covenant on Civil and Political Rights.
In case of an unfavourable verdict, Pakistan has much less room for manouvre than it would like to believe. The Pakistan army may still brazen it out and do so - as China did in flouting The Hague Tribunal on South China Sea — but its civilian government will pay a heavy diplomatic price.
India's overture has put Pakistan in a quandary because if the international court stays Jadhav's execution, then Pakistan's witch-hunt against an innocent Indian national and brazen flouting of international rules and conventions becomes evident. Obeying the ICJ ruling will result in loss of face at home while defying the verdict will earn it international opprobrium.
Salve, the noted lawyer who will argue India's case The Hague on Monday, told The Times of India, "If Pakistan dares to breach the directive to hold its hands till a formal hearing on India's plea, it will be inviting dangerous consequences as the issue will then be taken up by the UN Security Council."
By approaching the ICJ, a move which Pakistan may not have anticipated, India has exploited a huge mistake by Islamabad to tom-tom its handling of Jadhav. Mandarins in Islamabad and Rawalpindi khakis obviously calculated that wide publicity on an alleged "Indian spy" will give it a strong case against India on international forums. Having internationalized it, Pakistan may now find it difficult to argue that it is a bilateral issue.
Finally, apprehensions that ICJ approach will open India to international mediation on Kashmir is rubbish. India has been careful enough in placing the Jadhav case as a 'breach of international law', not a 'breach of bilateral agreement'. Hence there is no window for Pakistan to exploit and link this to Kashmir, where India's position, that it is strictly to be moderated within a bilateral framework, remains consistent.
Updated Date: May 11, 2017 16:32 PM