ICJ’s jurisdiction being examined, says Sartaj

Yadav case

ISLAMABAD: Adviser to PM on Foreign Affairs said on Wednesday that the legal eagles of the government are studying the whole case of moving the International Court of Justice by India on the Kulbhushan Yadav issue and the court’s jurisdiction and his ministry would issue a formal statement soon.

While Pakistan says it is reviewing New Delhi’s moving the International Court of Justice (ICJ) against Pakistan in the case of execution of Indian spy Kulbhushan Yadav, and a formal response would be forthcoming this week, independent legal experts tell The News that by approaching the ICJ – an organ of the United Nations – India has buried bilateralism and has deviated from its own state practice.

Legal experts are surprised as to why New Delhi moved into the international arena when “domestic remedies” have not been exhausted.

On Tuesday, the ICJ issued a statement after India moved the ICJ against Pakistan, accusing it of violating the Vienna Convention in the case of Indian spy Kulbhushan Yadav, who has been awarded death sentence by Pakistan Army’s Field General Court Martial.

“By approaching the ICJ, India has buried bilateralism and has deviated from its own state practice. It is incorrect to say that India has been granted a ‘stay’ by the ICJ. According to the Rules of the Court, interim relief can only be given once the application for provisional measures has been decided by the court,” Ahmer Bilal Soofi, Advocate Supreme Court, told The News.

He pointed out that in framing its response, the government of Pakistan should base its political choices on an evaluation of the legal position under the international law.

“This would require examining India’s pleadings in this case, as well as research on the precedents and state practice in similar situations”, he advised. Soofi was asked to comment on the legalities of this very complicated case which on Wednesday saw Indian Minister for External Affairs Sushma Swaraj tweeting that Harish Salve, Senior Advocate is representing India before International Court of Justice and that she had spoken to Yadav’s mother about the ICJ order of President, ICJ under Article 74 Paragraph 4 of Rules of Court.

Meanwhile, Ahmer Bilal Soofi, brushed aside rhetoric in the Indian media speculating that India had succeeded in getting a stay from the ICJ against Yadav’s execution. “No such application has been decided by the court as yet, in fact Pakistan is yet to receive official notification of the case. The only information available at this stage is a press release on the ICJ website simply noting that India has instituted a case against Pakistan. Thus, we cannot say that a stay has been given in this case at this point”, explained Ahmer Bilal Soofi.

He further explained that India approaching the ICJ in the matter of Kulbhushan Yadav has two aspects to it.

“The first is the application for initiating a case against Pakistan for denying consular access to Kulbhushan. The second is a request to ICJ for provisional measures under which India is essentially seeking a ‘stay order’ against Kulbhushan’s execution”, he added.

The second issue he said is the one which is dominating the headlines today. “The Indian media is claiming that the ICJ has granted India a ‘stay order’ in this case and required Pakistan not to execute Kulbhushan pending the outcome of the case. This is inaccurate. Under Article 74 of the ICJ Rules, no provisional measure can be granted without an oral hearing involving both parties. This would involve the ICJ notifying all parties and setting dates for oral hearings before the court. No such notification has been received by Pakistan as yet”, stated the Supreme Court Advocate.

Pending the meeting of the court, the President of the ICJ may call upon the parties to the case not to change the status quo before the oral hearings. This is set out in Article 74(4) of the ICJ Rules and is routine procedure not involving adjudication on any matter.

Ahmer Bilal Soofi said that he was surprised that India had chosen to invoke the ICJ’s jurisdiction while both Pakistan and India are parties to a 2008 bilateral Consular Access Agreement. “It is also surprising that India has attempted to devalue the considerable avenues available to Kulbhushan Yadav under Pakistan’s domestic law”, warned the legal expert.

India, he recalled, has stated in its application to the ICJ that it has already made an appeal under Section 133(B) of the Pakistan Army Act 1952 as well as a petition to the federal government under Section 131 of the same Act.

“These proceedings are still pending and it makes little sense to approach an international forum while domestic remedies have not been exhausted”, said Ahmer Bilal Soofi. This, he said, is amplified by the fact that India also had the option to file a writ petition before the High Court in Pakistan under Section 84 of the Civil Procedure Code (CPC) or have Kulbhushan’s mother file a writ petition under Section 83 CPC subject to an NOC from the government of Pakistan.

“In either case, India had a better chance to obtain an interim injunction from an independent Pakistani judiciary rather than the ICJ”, suggested Ahmer Bilal Soofi. Earlier, Defence Minister Khawaja Asif instead of waiting for studying the legalities of the case, responded by a Tweet in which he tweeted, “Indian letter to ICJ attempt to divert attention from state-sponsored terrorism in Pakistan. The Indian spy was convicted of offences against Pakistan’s national security.”