BY ECONOMICTIMES.COM | UPDATED: MAY 15, 2017, 05.45 PM IST
It was a literally a race against time for India in the Kulbhushan Jadhav case. The International Court of Justice (ICJ) was not in session and the intelligence community in Delhi had indicated that Pakistan was speeding up Jadhav's execution.
Alarmed by the piece of intel on Jadhav, India dispatched to The Hague noted lawyer Harish Salve, who gave an intense and urgent briefing of the case to the ICJ registrar for close to 20 minutes.
The dramatic dash resulted in the ICJ asking Pakistan to hold its hands on a military court's death sentence to Jadhav while according top priority to India's request for interim stay on the execution till Monday's formal hearing.
"After I briefed him about the case last (Tuesday) evening, the registrar spoke to the ICJ president, who wrote to the Pakistani government to hold its hands till India's application seeking stay of Jadhav's execution is formally adjudicated by an appropriate bench of ICJ on Monday," Salve told TOI from London. India had approached the ICJ on Monday after it felt Jadhav's life was hanging in the balance after Pakistan repeatedly flouted the Vienna Convention on consular access to deny Indian officials any meeting with the prisoner.
The crucial key to the case
In his interaction with the ICJ registrar, Salve outlined the fallout in the case, how Pakistan had flouted inviolable international diplomatic rules by repeatedly rejecting consular access to Jadhav and the impending danger to his life. Salve pleaded for exercise of extraordinary powers of the ICJ president to stop the execution till India's application was heard.
ICJ president Ronny Abraham's communication will serve as a notice to Pakistan on India's plea. Asked if Pakistan would be bound by the ICJ president's communication in the absence of a formal interim order staying Jadhav's execution, Salve said, The communication has a binding effect on parties as it is a tool with the ICJ to stop any party from altering the ground position as on the day of communication.
India forced Pakistan
Had Pakistan dared to breach the directive to hold its hands till a formal hearing on India's plea, it would have led to dangerous consequences as the issue will then be taken up by the UN Security Council. Denying India consular access, Salve said, for more than a year despite repeated requests is a serious breach of Vienna Convention and that the trial was a sham.
India has done its homework meticulously and has a dossier to prove its allegations against Pakistan in ICJ.
The key legal instrument
India had strategically invoked Article 41 of the ICJ Statute and Article 74(4) of the court rules and this helped it get the desired reprieve. Article 41 provides, "ICJ shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council."
How India pulled it off
ICJ president Abraham, convinced by India's argument for urgent intervention, used his extraordinary powers to immediately write to Pakistan, "In my capacity as president of the court, and exercising 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 (India's) 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." Article 74 says a request for indication of provisional measures (interim relief) shall have priority over all other cases.
"The ICJ, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency.
The court, or the president if the court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it.
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