May 18 appears to be a good day for India and a bad one for Pakistan. Forty-three years ago on this very day, India joined the world’s nuclear club by conducting a nuclear test in Pokhran much to the alarm and embarrassment of Pakistan. The impact of the International Court of Justice (ICJ) order in the Kulbhushan Jadhav case, on the same day, has been no less. Pakistan was euphoric when its lawyers, Khawar Qureshi and Dr Mohammad Faisal, presented their arguments before the ICJ, shown live by many of the TV channels in the country. The arguments by India’s Harish Salve were not shown.
The euphoria was short-lived. On May 18, the ICJ order indicating provisional measures came as a rude shock, particularly to the intelligentsia as well as all those demonstrably overjoyed on TV and social media just a few days back. It’s clear today that Pakistan is in turmoil at this apparent “defeat” at the hands of India. Like in a cricket match where the losing team complains about the umpire, some people are complaining today that Muslim states seldom get a fair judgment from the ICJ.
Many are also ridiculing Khawar Qureshi for charging Pakistan half a million pounds when his Indian counterpart charged only one rupee. Except this fact was never mentioned prior to the release of the Order. The Attorney General who led the Pakistan legal team has been on the defensive, trying to explain that it is just a provisional order and Pakistan will prevail in the main case.
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Imran Khan and other leaders of Pakistan Tehrik-e-Insaaf (PTI) have found yet another opportunity to criticize the Nawaz Sharif government for mishandling the whole situation. Pakistan People’s Party (PPP) leader Sherry Rehman, active on the Track II diplomacy front which aims to bring about peace between India and Pakistan, is ironically calling for a review of the whole strategy.
As for Sartaj Aziz, the foreign affairs advisor, he is at a loss to explain what happened as it was his Foreign Office team at the forefront of the ICJ proceedings. The revelation by Army Chief Qamar Javed Bajwa, that the lawyer who presented Pakistan’s case in the ICJ was arranged by the Army and not the Foreign Office has caused more embarrassment to the Foreign Ministry and the whole government.
The prime minister, who returned after a week-long sojourn in China, has done what he does best in such situations: Hold a meeting with the Army Chief in Islamabad. Sharif is more worried about his fate than Jadhav’s. A team, formed on the orders of the Supreme Court, is looking into his involvement in the purchase of several flats in London worth millions of pounds — this was revealed after the leakage of the Panama documents.
There is no doubt that the ICJ’s Order is not a final one. For the moment, the ICJ has simply asked the government of Pakistan to “take all measures at its disposal” to ensure that Jadhav is not executed pending a final judgment of the Court.
But many in Pakistan are calling on the government to go ahead with the execution regardless of what the ICJ says. It is easier said than done. The ICJ is a principle judicial organ of the United Nations. Non-compliance with its judgment can lead to sanctions being imposed by the Security Council. More importantly, it will hurt Pakistan’s position of always adhering to the international legal regime; moreover, Pakistan accuses India of not doing the same.
The thrust of Pakistan’s case in the ICJ is that the court does not have jurisdiction as Jadhav is not covered by the provisions of the Vienna Convention on Consular Relations of April 24, 1963. Pakistan has also cited a bilateral agreement of 2008 with India, which it says supercedes its adherence to the Vienna Convention.
India argued that the ICJ has jurisdiction under Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over disputes arising out of the interpretation or application of the Vienna Convention.
In this regard, the Court noted that the Parties do indeed appear to differ on the question of India’s consular assistance to Jadhav under the Vienna Convention. It further noted that the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Jadhav as well as the alleged failure to allow communication and provide access to him appear to be capable of falling within the scope of the Convention.
The ICJ accordingly held that this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol. Pakistan now awaits the final outcome of the ICJ. It’s a bit like an India-Pakistan final at the World Cup.