This linked article, https://thewire.in/136848/pak-india-kulbhushan-jadhav-icj/, has very comprehensively stated the facts of and arguments taken in Kulbhushan Jadhav case pending before the ICJ. Further, the author has put up his own arguments in the article. However, it is written by an Indian, so it has its biases. Nevertheless, I would recommend you to read it.
In the present article, I am stating my understanding of the basics of the case and flaws in the arguments presented in the above linked-article as per my understanding. Indeed, the recent proceedings before the ICJ were solely concerned with the provisional measures that India sought in its application filed before the ICJ. Provisional measures can be analogized to ad-interim relief as granted in Indian courts. In ICJ, India has claimed the main relief of annulment of death sentence passed against Kulbhushan Jadhav by the 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; i.e., if the contesting parties yeild to ICJ’s jurisdiction. Indeed, India got an ex-parte ad-interim relief from the ICJ, whereafter the notice was served to Pakistan, and it filed its appearance. Whereafter, the application of India for provisional measures/ad-interim relief was heard at length.
The arguments from Indian side were with respect to need and urgency for ad-interim relief, the technical arguments with respect to jurisdiction of ICJ, and the arguments with respect to the main dispute; i.e., non-grant of consular access to Kulbhushan Jadhav, unfair trial, illegal sentence, etc.
The main argument of India with respect to ad-interim relief was non-trust in Pak legal system and announcement of death sentence by the Military Court leading to an imminent threat of elimination of the subject matter of dispute, i.e. Kulbhushan Jadhav. The main counter arguments of Pakistan with respect to ad-interim relief were that this was a no case of urgency as minimum 150 days were available under the Pak system for clemency, and that India obtained the ex-parte order without disclosing material facts, which tantamount to playing fraud upon the court — the above article has not covered this aspect, which I think was vital.
The main argument of India with respect to jurisdiction was that the jurisdiction of ICJ is not restrictive but liberal and can be invoked in several ways. India didn’t invoke Art 36(2) of Vienna Convention, but rather invoked Art 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.
Both the parties conceded that only a prima facie case is to be seen wrt jurisdiction of the ICJ in an application for provisional measures/ad-interim relief. The above article also argues the same.
To be very frank, I am prompted to write this article only because of this concession given by Pakistan. I am surprised the lawyers appearing at such a high forum are so oblivious to the basics. Prima facie case is defined as a dispute brought bonafide before the court requiring consideration of the dispute on merit. So, all technical objections wrt maintainability of proceedings are to be checked in entirety while deciding prima facie case. If the main proceedings were to fail because of an objection of jurisdiction, it would be a case of a no prima facie case. Similarly, if the court were to hold any fraud has been played upon it by the petitioner, who seeks the assistance of the court, it is again a case of a no prima facie case. In fact, as per settled common law precedents, fraud, if detected, in interlocutory proceedings like the one under consideration of ICJ, should lead to immediate dropping of the main proceedings itself as fraud makes all proceedings non-est. I am again surprised that Pakistan didn’t raise this ground even after attributing fraud to India.
Anyways, Pakistan countered India by precluding application of Art 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 (except may be under the agreement itself). It also argued about its own reservation precluding the jurisdiction of ICJ in matter concerning national security. It further countered India by arguing that Art 36(1) doesn’t operate in isolation but 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.
The above article argues that the question whether the 2008 agreement derogates or supplements the convention is itself a question of interpretation and application of the convention thus deciding the question of jurisdiction in favor of India. I might have missed it but I think India didn’t argue this point in this manner in the hearing.
Pakistan further argued that the main relief sought by India itself is not maintainable; therefore, there is no question of granting the interim relief. It called India’s attempt to obtain interim relief as bootstrapping. The above article argues that the question whether the main relief is maintainable or not will be decided when the main proceedings will be taken up. I differ. It is well established law that you can’t obtain an interim relief if the main proceedings itself were to fail. It is again a question of jurisdiction of the court to grant the relief prayed for. I think this argument of Pakistan is pretty strong.
On the main dispute, Pakistan argued that India never established the nationality of Kulbhushan Jadhav as an Indian citizen. It argued that as per the agreement signed between India and Pakistan, it is a give and take arrangement. It expected boafide assistance from India in establishing the identity of the accused as well as in collecting evidence against him. Further, it argued 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 disallowed.
Nevertheless, Pak counsel urged the viewers to view the confession statement on Internet. I have watched it on YouTube. Kulbhushan Jadhav has claimed himself to be a serving Naval Commander of Indian Navy, presently emloyed 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 Baloch region of Pakistan. India claims the confessional statement to be forged and having been obtained under force, which certianly can’t be ruled out. However, admittedly, India has not established the nationality of Kulbhushan Jadhav before Pakistan. It is also established that he worked for Indian Navy for sometime.
Well…I personally don’t acknowledge the word “terrorism” as UN has not yet defined it. Further, since I am an #AntiNationalHumanist, I am always interested in saving lives and care less about nations, India or Pakistan. In fact, if Kulbhushan Jadhav is working only as a Navy Commander, which is a post equivalent to Lt. Colonel in Indian Army, after 30 year of such a strenuous service, I would say he has already suffered a lot because of the stupid nationalism. With so much of intelligent hard work, he could have easily been a CEO, Editor-in-Chief, High Court Judge, etc, by now. I would value his contribution at Rs 500 crores at least. If Pakistan would agree to release him for such an amount, India should most willingly strike a deal. This would be true and correct diplomacy, not what India is doing right now.
Anyways, ICJ is a judicial forum. It will deal with the case differently. Let us see what verdict it delivers tomorrow.
P.S. I didn’t tackle the issue of whether the 2008 agreement derogates or supplements the convention because I didn’t want to complicate the article. But I think it should be tackled. 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. In case the jurisdiction is liberal, the agreement per se is irrelevant because then the jurisdiction can be invoked independently of the agreement. Hoewever, 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. However, if the finding is otherwise, the proceedings would continue. So, the above linked article is not correct in arguing that just because the question whether the agreement is derogatory or supplementing is itself a question of application or intrepretation of the convention, therefore the question of jurisdiction is decided in favour of India. The question would be decided in favour of India only if ICJ reaches a finding that the agreement is derogatory.
Comment dt. 18.05.2017
ICJ has ruled in favour of India on provisional measures, which means execution of Kulbhushan Jadhav is stayed till the case has been decided on merit, which is indeed a good news for an #AntiNationalHumanist. But, unfortunately, I am also a lawyer, and I am indeed dissappointed with the ICJ. ICJ has also ruled that it has 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. I stand by and reiterate what I have stated in my article above.
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 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. I am disillusioned. It’s actually the cobblers who decide the fate of judges and judgments around the world. Period.
P.S. What I am writing here may end up proving the ICJ as bunch of jokers,but I can’t resist the temptation of seeing a smile on my face and on that of my readers. Anyways, there is no fear of contempt of court. So, here I go.
I am married to a “Revolver Rani” type girl, who abandons me for I can’t fire my GUN on target. However, I love her so much that I file a petition for restitution of conjugal rights in a matrimonial court. In the meantime, my beloved “Revolver Rani” murders an innocent guy in cold blood, who like me just couldn’t fire his GUN on target, and is awarded a death sentence. I, as clever as I am, file an application in the matrimonial court seeking stay on her death sentence. And when the defendant raises an objection of jurisdiction, I say we will see the jurisdiction later, first you ensure that “Revolver Rani” stays alive, so that at least once I can fire my GUN on target. Surprise, surprise, the court grants me the stay assuming a “prima facie jurisdiction” a la the International Court of Justice in re: Kulbhushan Jadhav.
It’s ridiculous but true. ICJ has done precisely this today. 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. Was this a joke?
Note: I am an #AntiNationalHumanist.