The International Court of Justice in its provisional measures order has directed Pakistan to take all steps at its disposal to ensure that Mr Jadhav is not executed pending the final decision of the case. Though Pakistan’s counsel had put up a stout defence against such a provisional measures order it was fairly certain that the ICJ would lean this way.
Pakistan’s case rested on a question of jurisdiction, which in turn was based on the proposition that the bilateral agreement between Pakistan and India on consular access trumps Vienna Convention 1963. This is why our case was inherently weak despite our counsel’s brave attempts at bolstering it. A bilateral treaty cannot override or curtail a multilateral international convention to which a state is party. It can only expand it. Next, Pakistan’s argument was that there was no urgency involved. Here our counsel, Khawar Qureshi QC, was at his best. He very ably distinguished the previous cases and showed that there was no urgency that necessitated India’s application. ICJ’s outright rejection of this line of argument, without taking into account Qureshi QC’s arguments on this point, was perhaps the most surprising part of the order. Nevertheless Pakistan as a responsible state has to abide by it.
Inevitably, there are a number of ex post facto critics, or as they say in America – Monday morning quarterbacks – who have taken to attacking the Pakistani decision to approach the ICJ to defend its position. This is borne of ignorance. Not only would a Pakistan boycott of the proceedings yield no impact on the jurisdiction question – such a step would squander the one silver lining that has come out of this. India’s decision to invoke the jurisdiction of a multilateral body itself is a victory for Pakistan. It ends the policy of bilateralism that has been the cornerstone of India’s Pakistan policy. Pakistan has always favoured the multilateral approach and with this a new vista has opened up for the future.
In so far as this case is concerned, the best approach would be to ensure that Kalbhushan Jhadav is accorded an appeals process that is up to the highest possible standards of justice. We must show the world that we give even those we consider our worst enemies a fair shake.