Kulbhushan Jadhav Case in International Court of Justice (ICJ)

Kulbhushan Jadhav Case ICJ

Kulbhushan Jadhav Case: Facts Before ICJ

The recent proceedings before International Court of Justice (ICJ) in reference Kulbhushan Jadhav case were solely concerned with the provisional measures that India sought in its application filed before ICJ. Provisional measures can be analogized to ad-interim relief in municipal courts. In ICJ, India has claimed the main relief of annulment of death sentence passed against Kulbhushan Jadhav by Pakistan’s military court, and the provisional measure/interim relief is that of maintenance of status quo pending the main relief proceedings.

Unlike municipal courts, ICJ doesn’t have any statutory jurisdiction. It derives its jurisdiction from the treaties entered into between the contesting parties or from the concessions made by the parties. India had got an ex-parte, ad-interim relief from ICJ, where after the notice was served to Pakistan. Thereafter, Pakistan filed its appearance, and the application of India for confirmation of provisional measures/ad-interim relief was heard at length.

Kulbhushan Jadhav Case: Arguments Before ICJ

The arguments from Indian side were mainly on the following:

  • With respect to the need and urgency for ad-interim relief.
  • With respect to the jurisdiction of ICJ.
  • With respect to the main dispute; i.e., non-grant of consular access to Kulbhushan Jadhav, unfair trial, illegal sentence, etc.

Ad-Interim Relief

The main argument of India with respect to ad-interim relief was distrust in Pakistan’s legal system, and the announcement of death sentence in the said-same legal system through the military court. Thus, leading to an imminent threat of elimination of the subject matter of the dispute, i.e. Kulbhushan Jadhav. The main counter arguments of Pakistan with respect to the ad-interim relief were that this was not a case of urgency as a minimum of 150 days were available under Pakistan’s legal system for clemency; and that India obtained the ex-parte order without disclosing material facts, which tantamount to playing fraud upon the court.

Jurisdiction

The main argument of India with respect to jurisdiction was that the jurisdiction of ICJ is liberal, not restrictive, and it can be invoked in multiple ways. India didn’t invoke Article 36(2) of Vienna Convention. It rather invoked Article 36(1) r/w Article 1 of the “Optional Protocol Concerning the Compulsory Settlement of Disputes”, which reads as under:

Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.

Pakistan countered India by precluding application of Article 36(1) in the case of a spy. Secondly, it argued the jurisdiction of ICJ is also precluded because of the 2008 agreement signed between India and Pakistan, specifically precluding ICJ from assuming jurisdiction in bilateral disputes. It also argued that its reservation precluding the jurisdiction of ICJ in a matter concerning national security should also apply. It further countered India by arguing that Article 36(1) doesn’t operate in isolation. And that it operates in integration with other articles of the convention, including the preamble, thus bringing the 2008 agreement between India and Pakistan within the ambit of the convention. Pakistan further argued that the main relief itself is not maintainable; therefore, there is no question of granting the ad-interim relief. It called India’s attempt to obtain ad-interim relief as bootstrapping. 

Both parties conceded that only a prima facie jurisdiction is to be checked in an application for provisional measures/ad-interim relief. To be frank, I am prompted to write this piece only because of this concession by Pakistan. I am surprised that the lawyers appearing in such high forums are so oblivious to basics. Prima facie case is defined as a dispute brought bona fide before a court, thus requiring consideration of the dispute on merits. Therefore, all technical objections wrt maintainability of proceedings are to be checked in entirety while deciding a prima facie case. If the main proceedings were to fail because of an objection of jurisdiction, it would be an instance of a no prima facie case.
Similarly, if a court were to hold that any fraud has been played upon it by the petitioner seeking assistance of the court, it is again an instance of a no prima facie case. In fact, as per settled common law precedents, fraud, even if detected in interlocutory proceedings like the one in ICJ, should lead to immediate dropping of the main proceedings as fraud makes all proceedings non-est. I am also surprised that Pakistan didn’t raise this ground after attributing fraud to India.

Main Dispute 

On the main dispute, Pakistan argued that India never established the nationality of Kulbhushan Jadhav as an Indian citizen — admittedly, India has not established the nationality of Kulbhushan Jadhav before Pakistan. It argued that, as per the agreement signed between India and Pakistan, it is a give and take arrangement. It expected bona fide assistance from India in establishing the identity of the accused as well as in collecting evidence against him. Further, it argued that the passport confiscated by Pakistan has never been denied by India as fake. Further, it relied heavily on the confessional statement of Kulbhushan Jadhav and even wanted to play it in the court, which the ICJ didn’t allow.

Pakistan’s counsel urged the viewers to view the confession statement of Kulbhushan Jadhav on Internet. I have watched it on YouTube. Kulbhushan Jadhav has claimed himself to be a serving Naval Commander of Indian Navy, presently employed with RA&W and being handled by a joint secretary level officer of RA&W. He claimed himself to have been employed for carrying out terrorist and anti-national activities in Balouch region of Pakistan. India claims the confessional statement to be a forged one and to have been obtained by force, which certainly can’t be ruled out.

Author’s Comments

Let’s tackle the issue of whether the 2008 agreement derogates or supplements the convention. This issue arises in relation to the jurisdiction of the court and is linked to the question that whether the jurisdiction of ICJ is limited as argued by Pakistan or liberal as argued by India. If the jurisdiction is liberal, the agreement per se is irrelevant because then the jurisdiction can be invoked independently of the agreement. However, if the jurisdiction is limited and the agreement does have the power to bar the jurisdiction of ICJ, then the finding to the effect that the agreement is supplementary will lead to immediate dropping of all proceedings.

Comment dt. 18.05.2017

ICJ has ruled that it has a prima facie jurisdiction to decide the dispute. I am unable to understand how can a jurisdiction ever be prima facie. Either you have jurisdiction or you don’t have it. This approach is unknown to jurisprudence. What ICJ has done is like saying I will go to my local cobbler for getting my property dispute resolved. And when the other party will raise the objection of jurisdiction, I will say that presently I am just seeking a stay order, which the cobbler can grant because of his extraordinary muscle power to get his orders executed. Whether he has enough authority or not, let us decide that later. Indeed this is bootstrapping, and who better than a cobbler to approach for it.

Furthermore, ICJ is not a criminal court, but it found a “prima facie jurisdiction” to stay a death sentence awarded by a criminal court, in a dispute concerning consular access under the Vienna Convention on Consular Relations. Ridiculous!

A wife abandons her husband, for he can’t fire his GUN on target. However, the husband loves her so much that he files a petition for restitution of conjugal rights in a family court. In the meantime, the wife murders a guy in cold blood, who like the husband just couldn’t fire his GUN on target. She is awarded death sentence. The husband files an application in a family court seeking stay on her death sentence. And when the defendant raises an objection of jurisdiction, he says, “see the jurisdiction later, first ensure that the wife stays alive, so that he can fire his GUN on target at least once”. The court grants him the stay assuming a “prima facie jurisdiction” a la ICJ.

About the Author

Ankur Mutreja
Ankur Mutreja is an advocate practicing in Delhi, India, since 2009, and he is also an online legal consultant. He is also an author, writer and blogger since 2003. He has authored and self-published many books, which can be downloaded from the top menu.

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