Smart India's swift ICJ move on Kulbhushan Jadhav takes Pakistan by surprise

BY INDRANI BAGCHI , TNN | UPDATED: MAY 10, 2017, 12.37 PM IST

NEW DELHI: On Monday, May 15, when the International Court of Justice (ICJ) opens in The Hague, India will argue its case on Kulbhushan Jadhav, making it a unique occasion in the execution of international law. 

Harish Salve (Mr.Harish Salve is the same lawyer who saved Bollywood superstar Salman Khan overnight thru Mumbai high Court to the surprise of entire India)  will argue Jadhav's case on Monday when both India and Pakistan are expected to make oral arguments. 

The Indian move in the ICJ on Kulbhushan Jadhav was swift and the order caught everyone, including Pakistan, by surprise. 

The "provisional measures" sought by India and granted by ICJ in a midnight order includes a halt to the execution of Jadhav, the earliest date for which is May 19. Since an execution is irreversible, the ICJ delivered an immediate stay, which, if nothing else, gives Jadhav, and India, some breathing room. 

The order by Rony Abraham states, "in my capacity as president of the court, and exercising the powers conferred upon me under Article 74, paragraph 4 of the rules of the court, I call upon Your Excellency's government, pending the court's decision on the request for the indication of provisional measures to act in such a way as will enable any order the Court may make on this request to have its appropriate effects." 

The Indian intent is first, to stay Jadhav's execution. For this, India took advantage of a small loophole in international law to institute a one-off case against Pakistan on Jadhav. While both India and Pakistan signed on to the ICJ in 1960, both countries included caveats which prevented each side from being sued by another Commonwealth country. That was why India could not sue Pakistan over the murder and mutilation of Saurabh Kalia during Kargil. 

Pakistan similarly could not sue India over downing of the Atlantique. 

But when the two countries signed on to the Vienna Convention, "Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963" gave jurisdiction on consular matters to ICJ. That is the provision India has used this time. 

Secondly, India is asking the court to declare Pakistan's execution order a violation of international law. The ICJ, in its statement, said India sought "relief by way of restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36[,] paragraph 1 (b), and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention." 

According to the ICJ statement, India "was not informed of Jadhav's detention until long after his arrest and that Pakistan failed to inform the accused of his rights. It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Jadhav, despite its repeated requests. 

The Applicant also points out that it learned about the death sentence against Mr Jadhav from a press release." 

India also said Jadhav was "kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan" on 3 March 2016, and that the Indian authorities were notified of that arrest on 25 March 2016. 

In its petition, India has said "on 23 January 2017, Pakistan requested assistance in the investigation of Mr. Jadhav's alleged "involvement in espionage and terrorist activities in Pakistan" and, by a Note Verbale of 21 March 2017, informed India that "consular access [to Mr. Jadhav would] be considered in the light of the Indian side's response to Pakistan's request for assistance in [the] investigation process". India claims that "linking assistance to the investigation process to the grant[i .. 

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(This article was originally published in The Times of India)