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Summary of Oral Arguments for Provisional Measures in India vs Pakistan (Jadhav Case)

History of the matter:

According to the Pakistani government, on 3 March 2016, Mr. Kulbhusan Jadhav was arrested inside Balochistan during a counter-intelligence raid conducted by Pakistani security forces. He was arrested in Mashkel near the border region of Chaman, having made illegal entry into Pakistan via Iran. Pakistani security forces reported that Yadav was a serving officer in the Indian Navy and asserted that he was commissioned to the Research and Analysis Wing, India's external intelligence agency. They accused him of being a spy and being involved in subversive activities in Balochistan and Karachi. Jadhav was later shifted to Islamabad for interrogation. Jadhav served with their navy but at the same time denied that he was an agent for an intelligence agency. Indian Ministry of External Affairs communicated that Jadhav took premature retirement from the navy and the government had no link since his retirement from the Indian Navy. India expounded that Pakistan had fabricated the documents without ascertaining discrepancies.

Following Pakistan's refusal to allow India Consular access to Kulbhusan Jadhav, India approached the International Court of Justice alleging the violation of the Vienna Treaty. 

On 8th May 2017 (IST), Sri Deepak Mital, Joint Secretary, Ministry of External Affairs, on behalf of the Republic of India had filed its application for Provisional Measures in the matter of Kulbhusan Jhadav under Article 41 of ICJ and on the 9th of May, 2017 (IST) the President of the ICJ wrote to the Republic of Pakistan under his powers under Article 74 para 4 of the Statute of the ICJ and requested that Pakistan take no such actions till the application for Provisional Measures was heard. The ICJ decided to hold a public hearing on the 15th of May, 2017 to decide on provisional measures

The Bench:

President of ICJ - Ronny Abraham of France;
Judge Owada, Judge Cançado Trindade, Judge Xue, Judge Donoghue, Judge Gaja, 
Judge Sebutinde, Judge Bhandari, Judge Robinson, Judge Crawford and
Judge Gevorgian.

The Parties:

Republic of India Legal Team- Mr. Deepak Mittal, Joint Secretary (Pakistan-Afghanistan-Iran) GOI as the Principle Agent,  and Joint Secretary Mr. V D Sharma (Co-Agent), Senior Advocate Harish Salve (Counsel), Ms. Kajal Bhat, First Secretary, Embassy of India is Netherlands (Advisor) and Ms. Chetna N Rai (Junior Counsel)

Agent of Pakistan Legal Team- Mr. Moazzam Ahmad Khan, Ambassador of the Islamic Republic of Pakistan to the United Arab Emirates (Co-Agent), Dr. Mohammad Faisal, Director-General (South Asia & SAARC) (Co-Agent), Mr. Syed Faraz Hussain Zaidi, Counsellor of the Embassy of the Islamic Republic of Pakistan in the Netherlands (Advisor), Mr. Khawar Qureshi, Queens Counsel (Counsel), Senior Advocate Asad Rahim (Junior Counsel) and Mr. Joseph Dyke (Legal Assistant).

Key legal arguments raised by India on 15th of May, 2017 for Provisional Measures:

Arguments advanced by Counsel for Republic of India, Sri Harish Salve -

1) Principles for the grant of provisional measures;

Harish Salve contended that the Court had formulated the threshold for provisional measures in Costa Rica v. Nicaragua (Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I)) in terms of what could be called as the plausibility standard. This Court said that provisional measures would be granted “if it is satisfied that the rights asserted by a party are at least plausible”. 
Again the standard of plausibility was reiterated in Belgium v. Senegal (Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009) where the Court observed that: “Whereas at this stage of the proceedings the Court does not need to establish definitely the existence of the rights claimed by Belgium or to consider Belgium’s capacity to assert such rights before the Court; and whereas the rights asserted by Belgium, being grounded in a possible interpretation of the Convention against Torture, therefore appear to be plausible”
Mr. Salve, then referred to the 3 ICJ cases till date what had dealt with the allegations of Breach of Article 36 of the Vienna Convention, namely Paraguay v. United States of America (Case concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998), the LaGrand case (LaGrand (Germany v. the United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I)) and the Avena case (Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003)
Mr. Salve contended that as per the above-stated judgments, the Court had established the jurisprudence of granting provisional measures on the establishment of a plausible right and a sense of urgency.  That is pending the final decision of the Court on the merits of the case, where there is urgency in the sense that action prejudicial to the rights of either party is likely to be taken before such final decision is given, the Court could grant provisional measures to protect life and liberty of individuals.
The Court in the Avena case had stated that "the fact that no such dates have been fixed in any of these cases before the Court is not per se a circumstance that should preclude the Court from indicating provisional measures". Based on this Mr. Salve argued that merely because Pakistan has not announced a date for Mr. Jadhav's execution, that cannot be used as a defense against the requirement of a provisional measure. 
Mr. Harish Salve also vehemently contended that Pakistan should not be allowed to take the defence of Mr. Kulbhushan Jadhav having alternate appeal remedies under Pakistani laws as Pakistan had not provided India with either the charge sheet, order copy or any evidence against Jhadav till date and Pakistani Advisor to the Prime Minister and Military spokesman had on separate occasions assured their own public of Jadhav's' execution.

2) Prima facie case - jurisdiction of the Court;

The standard enounced by the Court in relation to arriving at a prima facie satisfaction as to the existence of jurisdiction, at the stage of deciding upon a request for indication of provisional measures, is that the Court need not finally satisfy itself, before deciding whether or not to indicate such measures, that it has jurisdiction on the merits of the case, yet it may not indicate them unless the provisions invoked by the Applicant appear, prima facie, to afford the basis on which the jurisdiction is founded. 
Article I of the Optional Protocol reads thus: “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol”. 
The language of Article I of the Optional Protocol admits of no ambiguity. The binary requirements for the existence of jurisdiction are: 
(a) The existence of disputes that arise out of the interpretation, or the application of the Convention; and 
(b) The party that brings an application before the Court raising such a dispute, should be a party to the Optional Protocol. 
Both the above-mentioned conditions are satisfied in this case.
Mr. Salve strongly contended that the merits of the cases against Jadhav are inconsequential at the stage of hearing for provisional measures and what is relevant as a principle of law, is that need for a wholesome compliance with procedural safeguards is greater where the charges are serious, and the sanction upon conviction is as severe as capital punishment. 
Salve argued that where the national of another State is accused of acts of terrorism, and which if established carry the sanction of capital punishment, and the trial is by a military court, the need for consular access and the opportunity to arrange for legal representation in the course of the trial, as covenanted in the Vienna Convention, is all the more greater. 

2) Jurisdiction under Article 36, paragraph 1;

The compulsory jurisdiction of this Court under Article 36 (1) has three dimensions. Jurisdiction exists: 
(a) in respect of all cases which parties refer to it, 
(b) in respect of all matters specially provided for in the Charter of the United Nations, or 
(c) in respect of all matters specially provided for in treaties and conventions in force. 

The Optional Protocol specially provides for resolution of disputes relating to the Vienna Convention its language is mandatory. It provides that all disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice.
Mr. Harish Salve contended that the current matter clearly fell under the third dimension measured above. 
He also contended that Article 41 of the Vienna Convention on the Law of Treaties recognizes and ex-postulates the established principle of international law that two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty between themselves, if the possibility of such a modification is provided for by the treaty, or the modification in question is not prohibited by the treaty, and does not relate to a provision, the derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole. He submitted that Article 73 of the Vienna Convention recognizes that there is scope for parties to supplement and amplify the provisions of the Vienna Convention it does not, certainly does not, countenance a dilution of the principles embodied in the Vienna Convention. Hence Pakistan could not be allowed to rest their claim of lack of jurisdiction on the 2008 Bilateral agreement, which even more was not registered with the UN as per Article 102 (2) of the United Nations Charter 1945.

The general principle, where the Court has jurisdiction based on both optional declarations and compulsory jurisdiction clauses in treaties, is that each title is autonomous and ranks equally with the others. Based on The International Court of Justice by Robert Kolb (2013; page 586 and 589) Harish Salve argued that titles of jurisdiction remain in existence until either modified or terminated, and it cannot be argued that a more restrictive subsequent optional declaration is evidence of the State’s will to submit to the Court’s jurisdiction in a more limited way, so that a prior and a more widely-worded compromissory clause must be considered to have undergone a kind of derogation (or vice versa). It is for the parties themselves to choose the titles of jurisdiction they intend to rely on and India had chosen to approach the ICJ under Optional Protocol, and Article 36 (1). 

[Arguments advanced by counsel for Republic of Pakistan,  Sri Khawar Qureshi to be added]

 [To read complete verbatim of both sides arguments check HERE]

[IMP: The summary does not contain the authors' views about the arguments at this moment]

Copyright of all photos: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ. All rights reserved.



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