Do you think India would have defended if Jadhav would have been a terrorist?
Kulbushan Jadhav – Much Ado About Nothing
Kulbushan Jadhav – Much Ado About Nothing
Pakistan has taken many adverse hits in the past year in the international legal arena: most prominent among these being the abject failures of the federal government in handling the international arbitrations of significant magnitude. However, these cases, despite involving the most valuable natural resources of the state, have not gained much traction other than a few small pieces in print media. Curiously, the
Jadhav case, which is more of a matter of principle and clearly less dire than the debacles in the other international cases, has been the subject of much comment and debate among the legal fraternity and those who put themselves forward as public intellectuals. This may be because
Jadhav’s case is a case against India, but this cannot be true, for the
Indus Waters case is also against India. Perhaps the reason the
Jadhav case receives greater traction is because it is a simple issue that strikes at the core of nationalist feeling of the Pakistani body politic.
The comments on the
Jadhav case have been multifarious, but the vast majority of commentary has been of a negative nature, particularly with regards to the legal strategy adopted by Pakistan. It is not difficult to understand why such criticism has come to the fore. The government has generally handled Pakistan’s international disputes in a most pathetic and incompetent manner. This much is apparent from the cases involving international arbitrations of significant magnitude where the government has appointed local and foreign counsel who lack the necessary expertise to advise the federal government, and hence, the results of the cases are adverse to Pakistan, so much so that the World Bank has even refused to write the letters to constitute the Court of Arbitration under the
Indus Waters Treaty. Moreover, the international law expert that the government has appointed is a lawyer by profession who has been practising law for nearly twenty years but is curiously unknown to the legal fraternity. This consultant is paid a hefty amount in salary, but is nowhere to be seen in the
Jadhav case, despite the purported national importance of the case. This, of course, is perhaps for the best, as there is not much that he can offer in the way of legal assistance to the federal government, but this hearkens to the judgment of Justice Qazi Faez Isa in
Rasheed Ahmed’s case, where the Supreme Court lamented the fact that much public money was expended on the salaries of law officers, yet private counsel were also appointed who were paid even greater sums out of the public’s pocket.
In this backdrop, it is not surprising that the criticism of Pakistan’s approach and strategy has been quite harsh. However, it is necessary as a lawyer to look at the particular facts and circumstances of the
Jadhav case. There are three criticisms that have been widespread, and are, on the face of it, fallacious.
The first and most prominent criticism in the
Jadhav case has been an
ad hominem attack on the counsel appointed to represent Pakistan. Such criticism is ill-founded, as Mr. Khawar Qureshi QC is a lawyer with impeccable credentials and was one of the best possible choices to argue the case before the ICJ.
The second criticism questions why Pakistan appeared before the ICJ in the first place. Examples such as the intractable positions of the United States in the
Nicaragua case and China in the
South China Sea case are cited as examples of states refusing to appear before the ICJ. Pakistan is not a superpower like the US or China. There will be instances in the diplomatic realm in the future where international law can be used in Pakistan’s favour. Pakistan will be in a much weaker position internationally and diplomatically if it has the black mark of having disobeyed the ICJ. Therefore, the decision to appear before the ICJ was eminently correct. Even otherwise, it is a basic principle of legal practice that when a party contests the jurisdiction of a court, that party must appear before such court and argue why it contests such jurisdiction.
The third criticism is more legal in nature. There seems to be a misunderstanding about Pakistan’s acceptance of the compulsory jurisdiction of the ICJ. Some senior lawyers, have, with respect, erroneously stated that Pakistan accepted the compulsory jurisdiction only recently, in March 2017. Nothing could be further from the truth. Pakistan accepted the jurisdiction of the ICJ in 1960. Pakistan has had the honour of having its very own Sir Zafarullah Khan serve first as a judge, then as President of the ICJ. In response to the Marshall Islands’ application to declare Pakistan’s possession of nuclear weapons a violation of international law (the application which was rejected last year by the ICJ), Pakistan in fact revised its declaration on the compulsory jurisdiction of the ICJ,
inter alia providing that “
all matters related to the national security of the Islamic Republic of Pakistan” shall not fall within the jurisdiction of the ICJ.
Prima facie, this would seem to cover the
Jadhav case. However, as the ICJ points out at
paragraph 26 of its Order:
“The Court recalls that the Applicant seeks to ground its jurisdiction in Article 36, paragraph 1, of the Statute and Article I of the Optional Protocol; it does not seek to rely on the Parties’ declarations under Article 36, paragraph 2, of the Statute. When the jurisdiction of the Court is founded on particular “treaties and conventions in force” pursuant to Article 36, paragraph 1, of its Statute, “it becomes irrelevant to consider the objections to other possible bases of jurisdiction”… Therefore, any reservations contained in the declarations made by the Parties under Article 36, paragraph 2, of the Statute cannot impede the Court’s jurisdiction specially provided for in the Optional Protocol. Thus, the Court need not examine these reservations further.”
The
Optional Protocol to the
Vienna Convention on Consular Relations, which Pakistan has ratified for the protection of its own consular officers around the world, provides that disputes relating to rights under the said Vienna Convention come within the compulsory jurisdiction of the ICJ notwithstanding other reservations a country may have in its general declarations on the ICJ’s jurisdiction, in keeping with the vaunted legal principle of law
lex specialis derogat legi generali (special law supersedes general law). Therefore, the ICJ cannot decline jurisdiction to hear the case.
In any event, the order of 18.05.2017 is merely an interim order and represents the very beginning of the Jadhav case. There is a long way to go and the real legal battle has yet to begin. The legal fraternity and the media would be better served in examining issues of far greater exigency involving Pakistan’s most important resources, and bringing to the fore how the Reko Diq and Indus Waters cases have resulted in massive legal and diplomatic defeats for Pakistan, defeats that stem from the incompetence and insincerity in serving the national and public interest, which is apparent from the stubborn refusal to appoint a lawyer well-versed in international law in the government. These are systemic issues that must be investigated, debated and brought before the public.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
'Pakistan didn't fail': 5 things you should know about ICJ's decision on Jadhav
TAIMUR MALIKUPDATED A DAY AGO
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The International Court of Justice (ICJ) announced its decision in relation to India’s Request for the Indication of Provisional Measures in connection with Kulbhushan Jadhav’s case (the “decision”) on May 18, 2017.
The 15 page decision has been met with strong reactions in both countries. Unfortunately, the debate on electronic media has been led by journalists, lawyers and politicians unfamiliar with the concepts of international law and the actual decision itself.
Therefore, it is important to highlight some key points:
India didn't win, Pakistan didn't fail
India didn’t win the case. Pakistan didn’t fail. The decision only relates to India’s request for provisional measures (which, by the way, doesn’t even include a request for granting consular access to Jadhav).
At this stage, it was easier and more likely for the ICJ to favour the Indian request as the threshold for assuming jurisdiction was not very high. Please see below paragraph 15 of the decision:
“15. The Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case (see, for example, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, para. 17).”
Jadhav's spy status will come under discussion
Pakistan hasn’t failed to convince the ICJ that Jadhav is a spy/terrorist as this is something that will be considered only at the merits stage of the case.
At this stage, ICJ wasn’t even looking to confirm whether the rights sought to be protected by India exist (i.e. consular access to an Indian citizen convicted of activities subversive to the national security of Pakistan).
In fact, it only had to decide whether such rights are plausible enough to be adjudicated upon at the merits stage of the case. Please see below paragraph 42 of the decision:
“42. At this stage of the proceedings, the Court is not called upon to determine definitively whether the rights which India wishes to see protected exist; it need only decide whether these rights are plausible (see above paragraph 35 and Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, para. 64)."
ICJ yet to decide on consular access for Jadhav
ICJ has not determined as yet whether consular access must be granted to someone in Jadhav’s position. Pakistan has not even had the opportunity to plead the arguments in this respect and again this is something to be debated at the merits stage of the case. Please see below paragraph 43 of the decision:
“43. The rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform without delay the person concerned of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention. Regarding Pakistan’s arguments that, first, Article 36 of the Vienna Convention does not apply to persons suspected of espionage or terrorism, and that, second, the rules applicable to the case at hand are provided in the 2008 Agreement, the Court considers that at this stage of the proceedings, where no legal analysis on these questions has been advanced by the Parties, these arguments do not provide a sufficient basis to exclude the plausibility of the rights claimed by India, for the same reasons provided above (see paragraphs 32-33).”
No decision on the death penalty
There has been no decision by the ICJ regarding Jadhav’s death penalty by the Pakistani Court. In fact, this point is not even under consideration and does not fall within the ICJ’s jurisdiction.
The dispute relates to whether consular access should have been granted by Pakistan and not whether the death penalty is lawful. Please see below paragraph 56 of the decision:
“56. The Court notes that the issues brought before it in this case do not concern the question whether a State is entitled to resort to the death penalty. As it has observed in the past, “the function of this Court is to resolve international legal disputes between States, inter alia when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal” (LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 15, para. 25; Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003, p. 89, para. 48).”
Pakistan can still argue on jurisdiction
The decision in no way affects the rights of Pakistan to submit arguments in respect of the jurisdiction of the ICJ to deal with this case and in relation to the merits of the case itself.
Pakistan will be given ample opportunity to present its arguments in the next round. Please see below paragraph 60 of the decision:
“60. The decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves. It leaves unaffected the right of the Governments of India and Pakistan to submit arguments in respect of those questions.”
The legal team representing Pakistan in this case has also come under scrutiny in the media and an impression has been given that the lead counsel did not have relevant experience.
This is misleading. Khawar Qureshi QC is a leading member of the Bar of England and Wales who, 24 years ago, in 1993, was the youngest advocate to appear before the ICJ (representing Bosnia) and has taught Public International Law at King’s College London.
The junior counsel, Asad Rahim Khan, is an accomplished young lawyer currently working with the Attorney General’s Office who was called to the Bar of England and Wales, writes regularly for a prominent English newspaper and co-hosts a talk show on DawnNews.
They, and others supporting them, did not have the benefit of time available to the Indian team while preparing their arguments and performed well under a tight deadline.
One can expect to see a much stronger Pakistani legal team at the merits stage of the case.
It is also important to consider that the reasoning put forward by the ICJ potentially opens the doors for Pakistan to bring cases against India resulting from breaches of other international treaties.
Finally, it should be noted that Pakistan now has a right to appoint an Ad Hoc Judge of the ICJ for this specific case.
Media pundits have shown concern regarding the presence of an Indian Judge at the ICJ and the appointment of an Ad Hoc Judge by Pakistan should put to rest any concerns of the ICJ being influenced by one of its members.
However, Pakistan will have to select its nominee wisely. Possible options could include a retired Chief Justice of Pakistan (e.g. Justice Tassaduq Hussain Jillani), Pakistan’s leading international law expert, Ahmer Bilal Soofi (who is also an elected member of the UN Human Rights Council Advisory Committee), or an international candidate such as Judge Bruno Simma (former Judge of the ICJ) who was appointed as an arbitrator by Pakistan in the Indus Water Kishenganga Arbitration.
Indeed, each potential nominee will have his areas of expertise and strength and the decision makers will need to consider carefully the skills that Pakistan would most value in its nominee for the position of the Ad Hoc Judge of the ICJ.
The case has just started and the best legal minds on both sides will be working hard to strengthen their country’s arguments in the next round. Neither side can claim a victory at this early stage.
The ICJ is the world’s most prestigious dispute resolution forum and we can expect important jurisprudence to result from the final outcome of this case.
The author is an international lawyer and former Executive Director of the Research Society of International Law (RSIL) Pakistan.
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