India, Pak set for Hague face-off
NEW DELHI : India is hopeful of a positive outcome as it braces for a complex legal tussle with Pakistan at the International Court of Justice in Hague on Monday, after a gap of 18 years.
As the oral hearing begins in the case of Kulbushan Jadhav, who was sentenced to death on charges of espionage and sabotage, New Delhi is hopeful of overcoming Pakistan’s objections to the ICJ’s jurisdiction.
India believes its move to go to ICJ has taken Pakistan by surprise, with its national not getting even consular access even after 16 requests. Senior lawyer Harish Salve will argue India’s case.
This is the second time India is going to ICJ, the first being in 1971.
“Countries move ICJ in a caseby-case manner. Going to ICJ also shows the confidence India shows since the 2000s in moving multilateral forums,” TCA Raghavan, former Indian high commissioner to Pakistan, told Hindustan Times.
Rarely has India taken issues with Pakistan to a multilateral forum, but the imminent danger to Jadhav’s life might have forced the government’s hand.
New Delhi also hopes that Pakistan’s questioning the jurisdiction of ICJ will not weaken its prospects.
The Indian hopes lie on two points: the case, a consular matter, is not about the compulsory jurisdiction of the ICJ over a matter; and it can also get around the possibility of Pakistan invoking clauses from a bilateral pact on consular access.
India had approached the ICJ on Tuesday and obtained a stay on Jadhav’s execution. A day later, Pakistan said it was reviewing the jurisdiction of the ICJ on the case. On March 29, Pakistan had revised its declaration on compulsory jurisdiction, which spells out terms under which Islamabad accepts the ICJ on matters of dispute settlement.
This could argue that Pakistan anticipated the India moving ICJ, but informed sources said ‘compulsory jurisdiction’ is not an issue here. “The court can revisit the question of jurisdiction even after granting provisional measures. For tomorrow the court only needs to satisfy itself of a prima facie basis of jurisdiction,” said Shashank Kumar, Genevabased lawyer who served as a judicial law clark at the ICJ.
India moved the international court under 36 (1) of the ICJ statute, as both India and Pakistan are signatories to the Optional Protocol to the Vienna Convention on Consular Relations, according to which ICJ is the arbiter in disputes. India also believes the bilateral consular treaty with Pakistan will not be a factor as Islamabad has been arguing that this treaty of 2008 exempts those cases that are related to “national security.”