Yadav and the ICJ

“A lie gets halfway around the world before the truth has a chance to put its shoes on”. The saying goes something like that – though different versions are attributed to different people.

Information, for better or for worse, has an inherent capacity to be taken out of context and moulded to fit whatever paradigm a state is trying to develop. Pakistan, due to its limited understanding and capacity with regard to international law, is often unable to comprehend the significance of such information in the international sphere. India, however, has been building its legal capacity to utilise international law to its strategic advantage. The Indian spin on the International Court of Justice (ICJ)’s “pre-provisional” measure illustrates exactly that.

India and Pakistan find themselves embroiled in some form of hostility or conflict quite often. Perhaps, this is why both states have intentionally ousted the ICJ’s jurisdiction with regard to the contentious cases between themselves or other members of the Commonwealth. This is the effect of Pakistan and India’s declarations under Article 36(2) of the ICJ statute. It is because of this exclusion of the ICJ’s jurisdiction in contentious cases that India has taken the Article 36(1) route.

Both India and Pakistan are states parties to the Optional Protocol of the Vienna Convention on Consular Relations 1963. Article I of this protocol stipulates that: “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”. It is under this provision that India has invoked the jurisdiction of the ICJ with regard to Kulbhushan Yadav’s case.

Accordingly, Article 36(1) of the ICJ statute clearly states that: “the jurisdiction of the court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force”. At this stage, it would be premature and rather irresponsible to claim that the court will most certainly assume jurisdiction. This is particularly important considering India’s claims that it has “won” against Pakistan, presenting some sort of illusion that it has argued at a stage of proceedings.

In reality, only a generic, routine statement has been issued by the president of the ICJ. If one is to review the case law in this regard, it becomes clear that the statement issued by the president of the court is not a stay order but a request to maintain the status quo. This request has not only been directed at Pakistan but also at India. It is a mere statement to the effect that both parties maintain the status quo – nothing more and nothing less.

The assumption of jurisdiction by the ICJ has yet to be seen. Once an application is filed, there is a customary “oral hearing” – in fact, there may be a single or multiple hearings depending on each state’s legal strategy. This oral hearing is awaited and, in the absence of the notice and appearance of both parties for the oral hearing, there is no provisional measure that can be granted. Pakistan has only recently received notice. Therefore, to state that provisional measures have already been granted is entirely baseless and factually incorrect.

In the event that the ICJ does assume jurisdiction – which is not entirely unlikely considering precedent in this area – this may not be as awful for Pakistan as the Indian media would have us believe. The fact is that Yadav confessed to not only sabotage but much more than that. He was tried and convicted in accordance with domestic law and his sentence is a culmination of those lawful proceedings. Pakistan’s case against Yadav has more merit than India’s case in this regard. Having said that, regardless of the outcome – or whatever fears we may have in appearing before the ICJ – it cannot be emphasised enough that Pakistan must fully participate at all stages of the proceedings.

What many are neglecting is the fact that Pakistan and India have, between themselves, the Bilateral Agreement of 2008. Clause VI of this agreement clearly provides for the denial of consular access and assistance in cases where national security is concerned. It can be argued that India has voluntarily, through a bilateral agreement with Pakistan, committed itself to the provisions contained within the 2008 agreement. As per the international legal principle of pacta sunt servanda, India must honour and keep its agreements. The fact that Yadav was not an ordinary Indian citizen or an ordinary Indian diplomat is key in Pakistan’s arguments before the court. That is the crux of our national interest ground and must be maintained throughout.

In any case, even if the case proceeds and a judgment is secured against Pakistan, we should be aware of existing precedent before the ICJ and how various states have reacted in the event that provisional measures have been issued by the court and those states have refused to comply with them by citing domestic law as a justification.

The LaGrand case, a case between Germany and the US which was brought before the court, concerned temporary court orders of the ICJ by which the court directed the US to halt the execution of two German nationals – the LaGrand brothers – who had attempted an armed bank robbery in Arizona. The US executed both brothers in spite of the fact that the ICJ had issued provisional measures, which it deemed to be binding. The argument put forward by the US was that the Vienna Convention 1963 does not grant rights to individuals. Instead, it accords these rights to states. In this regard, Pakistan too can argue that the ICJ cannot be turned into a court of criminal appeal – particularly where matters of sovereignty and national security are concerned.

The writer is a lawyer.

Email: imaanmazarihazir@gmail.com