Kulbhushan Jadhav: How India notched up an international victory over Pakistan

The International Court of Justice’s decision ordering Pakistan not to execute Khulbhushan Jadhav, a former Indian Navy officer who had been sentenced to death for espionage by a Pakistani military court, does not just come as a relief for the Jadhav’s family. It is also a vindication of the Indian government’s unusual step in taking the matter to an international forum.

New Delhi tends to keep away from the international stage when it comes to dealing with Pakistan. This is borne out of the belief that any attempt to internationalise the India-Pakistan dispute will build a false equivalence between the two countries, and allow Islamabad to draw strength by grandstanding as well appealing to powerful allies, like China, who would be equally happy to check India’s influence.

As a result, India almost always insists that matters between it and Pakistan are bilateral issues that will be dealt with directly, without the intervention of third parties. Under no circumstances does India want matters such as Kashmir to be the subject of international peace-making efforts, in the manner of the Palestine dispute.

Bilateral matters

This approach is important for one other reason: Staying away from international scrutiny saves India from having to answer embarrassing questions about its own internal record in places such as Kashmir or the North East. It also follows the simple foreign policy logic that the larger, more powerful neighbour will be able to get a better deal if no other party is at the table.

When Pakistan announced that it had caught Jadhav and released an evidently manipulated video that it claimed was a confession, India immediate denied the allegations and demanded consular access. Over the months that followed, New Delhi continued to ask for consular access to Jadhav, who was languishing in Pakistani jails, without any response. But India did not, at this point, make any suggestion that it would take the case to an international forum.

Even after Pakistan announced that it had sentenced Jadhav to death for espionage, after a secret military trial, India’s first response was to summon Pakistan’s High Commissioner and declare that the trial was farcical. Even then it was not evident that India would take the case to the International Court of Justice.

This is especially relevant because of India’s history at the court. The last time India had itself applied to the ICJ to intervene in a case involving Pakistan, in 1971, the court dismissed New Delhi’s claims. Since then, Pakistan has attempted to take matters to the ICJ on two occasions, but in both cases no hearing actually took place.

Vienna Convention

The difference in this case appears to be the Vienna Convention for Consular Relations’ Optional Protocol, one of those rare international treaties that both India and Pakistan are party to. The Protocol says the ICJ would have jurisdiction over disputes concerning consular relations, unless the countries have agreed to another forum to resolve disagreements. Pakistan claimed that India did indeed come to an agreement in 2008, under which the countries decided that, in cases related to national security, questions of consular access would be decided on a case by case basis internally.

The Court however decided that there were three reasons this 2008 agreement did not prevent it from having jurisdiction in the case:

• The 2008 agreement had not been registered as a treaty in the United Nations secretariat, and so could not be invoked.
• The Vienna Convention does not prevent countries from signing treaties that amplify the safeguards in the convention, but
• It does prevent countries from diluting its safeguards through subsequent treaties.

India’s case

India’s constant requests for consular access to Jadhav also plaed a part in the court’s decision-making. To be convinced that it has jurisdiction in a case like this, the ICJ has to establish that there is a genuine dispute regarding consular access and that this is within the scope of the treaty that applies here.

The order, according to the ICJ press release, relied on the 16 Notes Verbales that India sent to Pakistan demanding consular access to establish proof of the dispute. The fact that Pakistan had labelled Jadhav an Indian citizen, and yet admitted that he could still follow the local legal provisions, such as appealing to higher courts within Pakistan or asking for clemency, further convinced the court that India had rights to demand consular access.

India’s case was additionally aided by the sentence Pakistan gave to Jadhav. Although technically India might have been able to make the same case for consular access even if Pakistan’s military court had not sentenced Jadhav to death, the ICJ may not have treated the case with the same urgency. The ICJ felt empowered enough to give orders to Pakistan in part because Islamabad refused to give assurances that it would not hang him while the case was still ongoing. Now Pakistan has been clearly told that it must ensure his safety until the ICJ concludes its hearing in the matter.

Vindication

It is important to remember that this is only a preliminary decision, and that too primarily on the question of jurisdiction. The court has concluded that it has prima facie jurisdiction on the case. It will now hear complete arguments as to whether Pakistan was guilty of denying Jadhav has consular rights, and Islamabad has insisted that its case has not changed in any manner, and asked for the hearing to take place as soon as possible.

Yet even if it is just the first step, the chances of an Indian victory on the international stage was by no means a given, especially given India’s past record at this court. Thursday’s decision vindicates New Delhi’s bold choice to take what would have otherwise been a bilateral disagreement to an international forum.