Kulbhushan Jadhav hearing at International Court of Justice: Pakistan's strongest argument is its weakest link

Pakistan, as expected, relied more on rhetoric, bad logic and obfuscation of facts to stonewall India's appeal during the hearing on Monday at the International Court of Justice at The Hague. In order to counter India's key contention — that Pakistan has flagrantly violated provisions of the 1963 Vienna Convention by repeatedly denying consular access to Kulbhushan Jadhav — its counsel Khawar Qureshi sought to place consular access as a provision outside the ambit of international law to be governed solely by the 2008 Consular Access Agreement.

This is the key contention on which the entire merit of the case shall rest. India's argument is clear. While it is a signatory to the 2008 bilateral agreement, senior Indian counsel Harish Salve during India's briefing to the ICJ registrar and during the hearing on Monday made it clear that India is not tied by the provisions of the agreement and instead relies solely on the Vienna Convention of Consular Relations (VCCR) in Kulbhushan Jadhav's case. Let's examine the merits of Salve's position.

India has pointed out that while the bilateral agreement under which Pakistan has sought to place the case, talks about arrests on political or security grounds to be examined on a case by case basis, even the said agreement calls for consular access within three months and immediate notification to the High Commission, provisions which Pakistan has violated. Pakistan ostensibly "arrested" Jadhav from Balochistan on 3 March, 2016 and did not notify India of the "arrest" until 25 March, 2016.

India's strongest argument behind placing the Jadhav case within the ambit of Vienna Convention — not bilateral agreement — is that signatories of the multilateral treaty (as both countries are) cannot cite provisions of a bilateral agreement which sit at odds with the provisions of the multilateral treaty. This is in accordance to Article 41 of Vienna Convention on the Law of Treaties, which states:

Article 41. Agreements to modify multilateral treaties between certain of the parties only

File image of former Indian naval officer Kulbhushan Jadhav. PTI

File image of former Indian naval officer Kulbhushan Jadhav. PTI

Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) The possibility of such a modification is provided for by the treaty; or (b) The modification in question is not prohibited by the treaty and: (i) Does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) Does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

It is quite clear therefore that Pakistan's argument, that it shall be governed by only the bilateral agreement and not Vienna Convention, suffers from bad logic. It made a gross error on denying India consular access and then compounded the error by seeking to take recourse in an agreement that cannot supersede the provisions of the multilateral treaty.

It must have been aware of the loopholes in its argument, which explains Pakistan's nervousness as revealed through its actions in the last fortnight.

For instance, as The Indian Express had reported, 12 days before it declared that Jadhav will be sent to the gallows, Pakistan quietly notified the International Court of Justice that it shall not be bound by ICJ's verdicts on matters related to "national security". Maleeha Lodhi, Pakistan’s Permanent Representative to the UN in New York, submitted the declaration to UN Secretary General Antonio Guterres on 29 March. This superseded Pakistan’s earlier declaration to the ICJ on 12 September, 1960, according to the report.

This move, however, is unlikely to help Pakistan's cause. As Devirupa Mitra quotes Delhi-based lawyer Dhruv Sharma in The Wire as saying, "Pakistan’s declaration is in relation to the compulsory jurisdiction exercised by the ICJ under Article 36(2) of the ICJ Statute… But India has approached the court under Article 36(1) which relies on other treaties to confer jurisdiction upon the court; in this case, the other treaty is the Optional Protocol to the Vienna Convention on Consular Relations." Simply put, ICJ's jurisdiction cannot be denied.

But there is more. News18 reported on Monday that Pakistan has opened back-channel manouevres to influence the hearing by dispatching its ambassador to UAE Moazzam Ahmad Khan, who was earlier posted in The Netherlands. Ahmad's brief, according to the channel, is to "impress upon" a judge on the ICJ panel "friendly" to him to get across a message that India has prematurely approached the ICJ because Jadhav has not yet exhausted all his judicial options in Pakistan.

Taken together, it is fair to assume that despite Pakistan's swagger at the ICJ and apparent disregard for ICJ's powers represent a bravado that masks deeper insecurity. We shall soon learn if it is so.

Updated Date: May 16, 2017 07:17 AM

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