ICJ judgment in Jadhav Case
ICJ judgment in Jadhav Case
Editorial
Editorial

The verdict of ICJ was announced in Kalbhushan Jadhav case and Pakistan benefited the most out of it. India just won the consular access for Jadhav whereas lost in all the other points. Long story short, ‘Jadhav won’t be leaving Pakistan’. ICJ rejected Pakistan’s contention regarding inadmissibility of India’s application at the ICJ on grounds of India’s abuse of process, abuse of rights and unlawful conduct.

The verdict of ICJ was announced in Kalbhushan Jadhav case and Pakistan benefited the most out of it. India just won the consular access for Jadhav whereas lost in all the other points. Long story short, ‘Jadhav won’t be leaving Pakistan’. ICJ rejected Pakistan’s contention regarding inadmissibility of India’s application at the ICJ on grounds of India’s abuse of process, abuse of rights and unlawful conduct.

The ICJ also rejected Pakistan’s following contentions: Article 36 of the Vienna Convention on Consular Relations (1963) does not apply in “prima facie cases of espionage”; customary international law governs cases of espionage in consular relations and allows countries to make exceptions to the provisions on consular access contained in Article 36 of the Vienna Convention; and that it is the 2008 Bilateral Treaty between India and Pakistan rather than Article 36 of the Vienna Convention, which regulates consular access in the case.

Pakistan’s argument that cases of espionage fall outside the purview of the Vienna Convention was rejected. The ICJ noted that when the Vienna Convention is interpreted in accordance with the ordinary meaning given to its terms in their context and in light of their object and purpose, Article 36 does not exclude individuals suspected of espionage.

Similarly, the ICJ rejected Pakistan’s argument that customary international law governs cases of espionage in consular relations. The ICJ also rejected Pakistan’s contention that the activities indulged in by Jadhav fell within the national security qualification contained in the 2008 Bilateral Treaty.

The ICJ observed that the national security exception under the 2008 Bilateral Treaty cannot “displace the obligations” under Article 36 of the Vienna Convention and that if the 2008 Bilateral Treaty was intended to create an exception to Article 36 of the Vienna Convention, the same should have been expressly stated in the 2008 Treaty itself. Pakistan did not fall into the dangerous trap of avoiding ICJ’s jurisdiction on technicalities a point argued by some of our legal experts. As they say, luck favors the brave.

Not only did Pakistan courageously fight this battle, it came prepared with its own set of robust counter-arguments. Pakistan will see this as more than a mere reiteration by ICJ of its own previous jurisprudence i.e. ICJ’s historic approach of deference to domestic legal systems. This was Pakistan’s battle about its narrative and the credibility of its domestic legal system which India had repeatedly challenged as being flagrantly flawed and dysfunctional. ICJ’s ruling of yesterday confirms that India failed on this count.