Kulbhushan Jadhav case at ICJ: Former Indian naval officer safe for now, but Pakistani court system holds key

This afternoon the International Court of Justice at the Hague ordered provisional measures in the India-Pakistan case concerning Kulbushan Jhadav, an Indian national who was sentenced to death by a Pakistani General Court Martial. These provisional measures, under international law, will be effective immediately and unless modified by the court, will remain binding until the conclusion of the hearings.

File photo of former Indian naval officer Kulbhushan Jadhav. PTI

The provisional measures are measures that the court can order under Article 41 of its Statute in order to protect the rights of the parties in a particular case before it. In the case of LaGrande (Germany v the United States of America) the court held that the measures ordered under Article 41 create binding obligations on States under international law.

At the outset we need to note one important thing, the court has on Thursday not commented on the merits of India's case. Therefore the court has said nothing about either India's allegations or Pakistan's allegations. In fact, the president of the court as he was summing up, made it very clear, that the court has not dealt with the merits or questions relating to the admissibility of the application.

The court proceeded on the law relating to provisional measures, which requires only the establishment of certain prima facie criteria. The court found:

a) That since there was a dispute relating to consular access under Article 36 of the Vienna Convention on Consular Relations, in particular, the extent of the obligations that India and Pakistan felt were required under Article 36, there existed prima facie jurisdiction under Article 1 of the Optional Protocol of the Vienna Convention. This arose because of the allegations India has made regarding Pakistan's delayed consular notifications and failure in informing him of consular access at the time of his arrest. Since the Vienna Convention is not explicit on the question of Terrorists and Spies not being subject to the Convention, the Court will not consider the question at this interim stage.

b) That the question of the 2008 Bilateral Agreement between India and Pakistan limiting the rights under the Vienna Convention is a question that can be answered at a later stage as there is no explicit bar to the jurisdiction of the ICJ under the 2008 India-Pakistan bilateral Agreement.

c) That the purpose of Provisional Measures is to protect the rights of the Parties while the matter is going on. For this to be granted the rights claimed must be plausible and there must be a link between the rights and provisional measures that are requested. India's reliefs claimed are plausible and since at the interim stage the Court is not required to decide if they are definitive, provisional measures may be granted.

d) With regard to the question of urgency, as Pakistan cannot give a definitive timeline and has not undertaken before the Court not to execute Jhadav before the case is over. Furthermore, as Pakistan's counsel had mentioned August 2017 as the date before which no execution would take place, the Court felt this time was too short and there was considerable uncertainty also as to the date on which the Appeal would be disposed. Therefore the Court was satisfied as to urgency.

Therefore the court ordered the following provisional measures:

a) Take all steps to ensure that Jhadav is not executed.

b) Report to the Court the steps it's taken in compliance with the Order.

c) Until the Court has decided on the final matter, be ceased of subject matters that form a part of the Order.

The ICJ said nothing about the merits of either India's or Pakistan's case before the court on Thursday. Therefore there was no finding of fact with reference to India's evidence or Pakistan's evidence. India will still have to make its case before the ICJ in the main stage of the proceedings. Now the court will call for submissions from the parties and fix a date for final arguments on the matter.

This is at best a tactical victory for India, however, the overall burden of having Jadhav's death sentence overturned is something that India will still have to fight hard towards. As this author expressed his reservations as to the merit's of India's main case before the court, there is still a long way to go before we can consider this a victory against Pakistan.

One more important thing that's worth pointing out, despite his execution now being stayed by the Hague, Jadhav may still not be able to have consular access or have access to his family. India did not request for consular access as a provisional measure nor did we seek that we are allowed to help him fight his appeal via the Indian High Commission in Islamabad. If Pakistan goes ahead with the appeal, then Jadhav could be subject to the final orders of a court where he had an inadequate defence.

In LaGrande (Germany v US) and Avena (Mexico v US) the setting aside of the final verdict was something that the ICJ was not inclined to do and the ICJ reiterated that States were to be left to decide their own means of how to provide restitution for a failure to comply with Article 36 of the Vienna Convention.

So while Jhadav may have got a reprieve from The Hague, his best chances of finally avoiding the noose may still be navigating the complexity that is the Pakistani court system. India's failure to ask for an order granting her consular access in the interim stage is something that is quite strange.

If Pakistan as a response to this order grants India consular access though, it would make its case much easier at the time of final hearing at The Hague. One hopes that's the exact intention of India's Ministry of External Affairs in order to finally secure consular access. However, how the final matter will pan out is something that still needs to be seen as having a sentence overturned by The Hague, would be a first, for any country, not just India. While legally speaking, this author doubts if it will happen, the patriot in him hopes that it will.