India’s decision to approach the International Court of Justice (ICJ) to stall the possible execution of Kulbhushan Sudhir Jadhav in Pakistan is an unusual move impelled by the peculiar circumstances of the former naval officer’s case. Sentenced to death by a military court after what was a summary and arguably bogus trial, he is in imminent danger of execution. His case now hinges on an appeal against his conviction on charges of espionage and on petitions for mercy before Pakistan’s Chief of Army Staff and President. India’s main contention is that Pakistan had committed “egregious violations” of the Vienna Convention on Consular Relations by repeatedly denying consular access to Jadhav for over a year. His family members have not been issued visas to travel to Pakistan and help him pursue appellate remedies. Pakistan had also linked the consular access issue to India’s “assistance” in its investigation into Jadhav’s alleged activities. With India instituting the case, the ICJ President has written to Pakistan to act in such a way that any order passed by the court would have its appropriate effect. While this virtually operates as a stay on Jadhav’s execution, a substantive interim order is expected only when the court hears India’s application for “provisional measures” at its hearing on May 15, pending adjudication of its plea for declaring Pakistan’s actions as violative of international law. New Delhi’s position is that Jadhav is innocent and that he was “kidnapped” by Pakistani agents from Iran.
On the face of it, India’s decision to move the ICJ may appear somewhat incongruous in the light of its position against internationalising its disputes with Pakistan. However, this is not the first time that it has approached the world court against Pakistan. In 1971, it wanted the ICJ to decide the limited question whether the Council of the International Civil Aviation Organisation had the jurisdiction to question India’s suspension of overflight rights to Pakistani aircraft. India has every claim to approach the ICJ to protect the life and rights of its nationals. One round of focussed legal proceedings does not amount to giving up its stated position on resolving other issues on a bilateral basis. However, it is likely to face a stiff challenge from Pakistan both on merits and by way of preliminary objections. Pakistan is likely to argue that consular access to Indian prisoners on its territory is governed by a bilateral agreement signed in May 2008. It is likely to quote a clause on reciprocal consular facilities that says, “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merit”. While Pakistan is free to cite legal and technical points in its favour, it hardly requires iteration that it should avoid any precipitate move that would frustrate the ongoing proceedings before the ICJ. Pakistan’s adherence to international law will be under test.
