“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.
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