1. Kulbhushan Jadhav case: ICJ relief temporary, but it is nothing more than a stop-gap measure

Kulbhushan Jadhav case: ICJ relief temporary, but it is nothing more than a stop-gap measure

Till now, there is no ‘Order’ that has been passed by the ICJ on India’s request for indication of provisional measures.

New Delhi | Published: May 13, 2017 4:35 AM
Kulbhushan Jadhav.

The media has had a field day over the last few days on how India has succeeded in securing a ‘stay’ on the execution of Kulbhushan Jadhav, an Indian national who was recently sentenced to death by a military tribunal in Pakistan on charges of “involvement in espionage and terrorist activities in Pakistan”.

As per a press release issued by the International Court of Justice (ICJ), on May 8, India filed a request for indication of provisional measures, seeking a three-fold interim relief—firstly, measures should be taken by Pakistan to ensure that Kulbhushan Jadhav is not executed while the ICJ is seized of the dispute; secondly, all such measures taken are reported to the ICJ, and thirdly, no other action or steps may be taken by Pakistan which would prejudice the rights of India, or Kulbhushan Jadhav regarding any decision of the ICJ on the merits of the case.

Stay of execution is an ad-interim relief

As India’s Agent (reportedly, Harish Salve) prepares to deliver a Perry Mason-esque (remember the eponymous American legal drama series?) argument before the International Court of Justice, it might be insightful to understand what lies ahead for India. Like any judicial body, the ICJ has power to issue injunctive directions, termed as ‘provisional measures’ under Article 41 of the Statute of the International Court of Justice. This is to be read with Article 74 of Rules of the Court which prescribe the process for hearing a request for indication of provisional measures.

Interestingly, this Article 74 also empowers the President of the court to issue ad-interim directions for the duration of the hearing on provisional measures. And that is what India has secured. From the media reports, and the excerpts of the letter issued by President Judge Ronny Abraham, under Article 74 (4), he has instructed the president of Pakistan to ensure that Pakistan will act in a manner to enable any order of the ICJ on India’s request to be appropriately effectuated. Essentially, Pakistan is proscribed from taking any steps that will render a final order of the ICJ on the request for provisional measures, infructuous. Therefore, Pakistan cannot execute Kulbhushan Jadhav for the time being.

However, there are two limitations to this ad-interim relief—first, this is not a final order indicating the ‘provisional measures’ sought by India in its request of May 8; and secondly, the ICJ is yet to hold a formal hearing under Article 74 of its Rules, which will afford Pakistan a chance to refute India’s claims before the Court.

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Provisional measures by the ICJ

Since its inception in 1947 till 1999, 23 formal requests were raised before the ICJ to indicate provisional measures in various disputes. The number steadily increased post-1999 in view of the Court’s ruling in the LaGrand Case (USA v. Germany). In this case, in an unprecedented fashion, the ICJ had held that provisional directions issued under Article 41 of the ICJ Statute will have a binding effect, and must be enforced by the parties, as directed.

There are two main tests that the ICJ has evolved in granting provisional measures to an applicant party. Such a party must indicate irreparable harm, and urgency, to get a favourable order on provisional measures. In some cases (see the Frontier Disputes case, and the Land and Maritime Boundary dispute between Cameroon and Nigeria), even the ‘aggravation of a conflict’ has been recognised as an ancillary ground to grant provisional measures. In the present case, as is indicative from the press release of the ICJ, India has argued that the execution of Kulbhushan Jadhav ‘would cause irreparable prejudice to the rights claimed by India’. Further, India may also want to contest the foreseeable aggravation that would be cause to an already volatile subcontinent, if Jadhav was to be executed in the absence of provisional measures restraining Pakistan.

However, all these points are yet to be deliberated by the International Court. Till now, there is no ‘Order’ that has been passed by the ICJ on India’s request for indication of provisional measures under Article 41 of the Statute of the Court. Therefore, while the direction of the Judge Abraham is certainly a favourable recognition of India’s stance, it is nothing more than a stop-gap measure, and not a substitute for the relief sought by India.

The way ahead

India faces a long, and bitter, legal battle—from what the media has reported over the last few months, Jadhav’s sentence is more about political score settling, than simply securing the life and freedom of an Indian citizen. It would be wise to recognise Pakistan’s understanding of the political value of this situation. Having been demonised and shunned by India internationally, especially in the United Nation, it would be an exquisite payback against India for Pakistan to emerge victorious in this legal imbroglio. Unfortunately, a man’s life hangs in the balance, as two adversarial neighbours go about with the political shenanigans, as business as usual.

– By Ameen Jauhar, Research Fellow Vidhi Centre for Legal Policy

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