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No room for miscalculations

No amount of political manipulation and investment in technologies of spin by the talking heads on television can conceal the facts surrounding the provisional measures ordered by the International Court of Justice (ICJ) on the Kulbhushan Jadhav case. There is no gainsaying the fact that Pakistan suffered a setback on Thursday when the court in Hague issued a temporary injunction against Jadhav’s death sentence. But rather than finding fault with the legal wizards, the Foreign Office or anyone else involved in presenting the country’s case, it would only be fitting that we examine the issue a little more dispassionately and through the prism of international law and its applicability.

When India took the unusual step of taking Jadhav’s case to the ICJ, it sought consular access to the convicted spy, not a ruling against his conviction by a military court. The whole thrust of its case was built on Article 36 [1] of the Vienna Convention on Consular Relation 1963 (VCCR) which is related to jurisdiction stemming from multilateral treaties. Instead of constructing Pakistan’s response on the same article’s first clause we somewhat imprudently chose to focus on the second clause (Article 36 [2]). Contrary to what we have been led to believe, the VCCR does not create any exceptions for alleged or convicted spies. Since Pakistan and India are co-signatories to the optional protocol of the Vienna Conventions, the International Court of Justice had no hesitation in declaring its jurisdiction over the case.

There were other miscalculations, too. Our side invoked and referred time and again to Article VI of an agreement signed with India in May 2008 – incidentally this is not registered under Article 102 of the UN Charter and as such cannot be invoked before any organ of the United Nations. If Pakistan can somehow register the agreement with the UN in the coming days, it can expect to derive some legal benefit when the proceedings resume later.

Pakistan will have to play its cards delicately and wisely from here onwards, especially when it comes to the appointment of an adhoc judge to the ICJ, strengthening its legal team and preparing water-tight arguments related to the merits of the case. The battle is far from over.

Published in The Express Tribune, May 20th, 2017.

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