India’s ICJ move is a big swing and miss, and is only fooling the people of India

Published: May 13, 2017

Pakistan is justified in its stance that Jadhav’s case fell within the realm of security, and subsequently, the request for consular access was declined on merits.

If you are an avid reader of Islamic history and have had the privilege of going through Jalalud Deen Suyuti’s famous compilation, Tareekhul Kuhalafa’, you must be well aware of a certain narration. It dates back to the era of the second Caliph Umar ibn al Khatab (ra) and narrates the ordeal of a young widow who used to struggle to make ends meet.

The narration has it that the unfortunate widow, in order to console her hungry and starving children, had devised an appalling strategy of deceit and deception. She used to place a pot full of water and rocks over a stove and as it would boil, she assured her young ones that a tempting meal is in the offing. The children, after having waited for a long time and exhausted due to continuous crying, would fall asleep and the widow would then silently turn the stove off. The Caliph, after observing their misery, came to their help one night and fixed a stipend for them from the state’s treasury.

I recalled this narration yesterday and have dedicated the preceding paragraph to it, simply because I feel our immediate neighbour is undergoing the same situation as the poor widow from the story narrated above.

On May 8, 2017, the Republic of India instituted proceedings against the Islamic Republic of Pakistan at the International Court of Justice (ICJ) in The Hague. The proceedings, as per the publically available information, call for an intervention in the matter relating to the conviction and sentencing of an Indian spy by the name of Commander Kulbhushan Jadhav. Through the said petition, India has sought to impugn the refusal of Pakistan vis-à-vis the providence of consular access to Jadhav and has pleaded to the ICJ to overturn the conviction/sentence awarded to its citizen on the pretext that it violates well established principles of basic human right laws.

Ever since the announcement of this litigation, the Indian press has been going crazy; it is heaping praises on the incumbent regime and is glorifying the move as stunning. Indian ministers can be seen patting each other’s backs on Twitter and the infamous defence experts sitting in television studios can barely restrain themselves from breaking out into tears of joy.

Cute as it may sound, the fact of the matter is that all these celebrations, cheers and tears are hollow and self-delusional in nature. The patent truth of the subject is that India’s ICJ move is a big swing and miss and I say this as a student of law.

After having deliberated upon the following contentions, I have come to the following conclusions:

1.The ICJ cannot unilaterally assume jurisdiction in a bilateral conflict unless and until both the disputing parties submit to its exclusive jurisdiction (Article 38 Rule 5 of the ICJ Rules). This submission varies from case to case and in this particular matter, it is highly unlikely and almost impossible that Pakistan would submit to the jurisdiction of the ICJ. Thus, the subject suit is destined to fall flat at the very preliminary stages.

2. India and Pakistan have a bilateral Consular Access Agreement which was ratified on May 21, 2008. Clause VI of this agreement explicitly states that in matters relating to security, the request for consular access shall be treated on merits. Thus, Pakistan is justified in its stance that Jadhav’s case fell within the realm of security, and subsequently, the request for consular access was declined on merits. ICJ does not reserve the authority to either revise or interpret the contents of this mutually agreed upon agreement.

3. In paragraph ‘e’ of the declaration made on March, 29, 2017, the government of Pakistan, with regards to the recognition of the jurisdiction of the ICJ, declared that the ICJ shall have no jurisdiction in matters pertaining to the national security of Pakistan. Furthermore, in paragraph ‘b’ of the same declaration, Pakistan asserted that a similar lack of jurisdiction shall prevail over matters which essentially fall within the domestic jurisdiction of Pakistan.

4. Similarly, the Indian declaration passed on September 15, 1974, in paragraph 1(2), declared that the jurisdiction of the ICJ shall extend to disputes involving all nation states other than the ones which are member states of the Commonwealth. Pakistan being a member of the Commonwealth is thus excluded from the list of nations against whom the jurisdiction of the ICJ can be invoked as per India’s request.

5. During the Simla Agreement in 1972, India and Pakistan had agreed that all conflicts arising between the two countries hereafter shall be resolved bilaterally. India has time and again asserted that this agreement bars both parties from approaching an international forum including the ICJ, for the resolution of an outstanding conflict. In 1999, when Pakistan approached the ICJ over the Atlantique incident, India successfully pleaded ICJ’s lack of jurisdiction on the basis of the Simla Agreement (Pakistan v India (2000) ICJ Rep 12). A similar view shall now be taken in this instant matter.

6. It is an established principal of international law that without exhausting available forums of appeal, outright remedies cannot be sought from an international court (Germany vs United States 2001 ICJ 466). Jadhav is yet to exhaust his right to appeal before the Military Court of Appeals and is further entitled to a mercy petition before the president of Pakistan. Without having adopted this available course of law, any exercise undertaken at an international level would be deemed as colourful.

7. India, by virtue of the institution of this case, has opened a flood gate which is destined to flow in its direction. Pakistan is now authorised to excavate the skeletons lying in the Indian closet and parade them at the International Litigation Forums.

In view of the foregoing issue, one is made to conclude that the theatrics played out at the ICJ were frivolous in nature and the television rating points generated were meant for the consumption of the domestic audience.

In order to placate the hyper-nationalist voters of the right-wing, the Bharatiya Janata Party (BJP) led government has decided to boil some water and rocks on a hot stove and are expecting that its war hungry children will soon fall asleep.

However, this move is expected to cast long-lasting effects on India’s foreign policy and that too of an adverse nature. Meanwhile, we can easily say that this diplomatic offensive was a huge swing and a miss.

Aniqa Sheikh

Aniqa Sheikh

The author is a lawyer cum strategist who practices at Islamabad High Court and is momentarily perusing her MS in Peace & Conflict Studies at the NDU. She tweets @sheikh_aniqa

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

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  • Sudhir

    Nice explanation. But one question comes to my mind that how come the lawyers of your court have refused to help him in any way to determine whether he was truly guilty or not. Why is this thing being so secretive? It is really inhuman for the lawyer’s union to pass such diktat to their members to not help him. Should you not help determine if he is guilty or not? Or you just accept what your military court has done without knowing the details?Recommend

  • Patwari

    Everyone and his brother including the village idiot knows that
    Hindustan is caught up in a vicious nationalistic Hindutva laced
    feeding frenzy. There is no logic, rhyme or reason to this wild
    extremist Bharati behavior. It seems like nearly all of the two billion
    toilet less denizens of the Hindu Desh are eating whatever Modi Circus
    is dishing out on banana leaves. It is pablum, covered with a heavy layer
    of false promises mixed with 5,000 years of pent up frustrations of servitude
    to various invaders. Even Kublai Khan’s gardener and cook got together and
    invaded part of Hindia.
    We, must remember, that a vast majority of the Hindustan’s population is
    illiterate. Their only source of information is what they hear on toxic channels
    blaring out hate, invectives and everything in between. …24/7Recommend

  • Rohan

    India will fight for justice for an ordinary Indian captured from Iran and portrayed as a terrorist by a barbaric stateRecommend

  • Vin P

    Well point is that Pak will in all likelihood lgnore ICJ verdict esp if it goes in India’s favour.Recommend

  • Sane

    Very well said. You nailed paid Indian trolls.Recommend

  • Sane

    Let the verdict come, if there would be any. What is ‘likelihood’?Recommend

  • Sane

    The poor little boy lost the way to home. His mother must be worried.Recommend

  • Patwari

    Well,…can’t make head or tail of your comment.
    Maybe you should try again? But thanks a bunch
    for the invective. Just like a true hindu.Recommend

  • Parvez

    On the Kulbhushan affair I am clear. As a lay man what bothers me is something else and it concerns Pakistan and our not too sterling record with international issues such as this ( Reko Dek, IWT issue, mess we made of the Tasman Spirit tanker grounding etc, etc )….. We are like our cricket team ( men’s team ), how many times have we lost a match that just about everyone thought we had won.
    If this does not go our way it’s not because Kubhushan is innocent ( he openly admits that he’s not ) but because we are prone to be inept and uncaring with matters that don’t concern us personally ….. let’s hope I’m wrong this time.Recommend

  • Khawaja Fahad

    What if I am practising the religion of the invaders? If I do, I do it of my own volition. What if I am not practising the religion of the invaders? I might be a direct descendant of the invaders.What if I am neither or what if I am both? It is my choice.Recommend

  • Anoop

    Do you even know what date the trial started and ended? How can you be sure the trial even took place?Recommend

  • Tommy Gunn

    @Aniqa – For how long will Pakistan rely on sugar daddies who never show up when it really matters? Let me remind you that Daddy China or Uncle Sam never came to your rescue in 1965, 1971 or 1999 and won’t do so in the future either. China earns $50 billion from India every year in trade surplus which is equal to its entire investment in Pakistan. Do you really think the Chinese are t dumb enough to cross India over one of its minion satellite states? BTW, Brahmaputra contributes less than 2% of India’s water needs. So in a worst case scenario, India won’t be affected much if the taps of the Brahmaputra are turned off. On the other hand, if India turns off the taps of rivers flowing into Pakistan, Pakistan will become a desert within a very short time.Recommend

  • disqus_MKeynes

    So if he refuses to confess (as threatened to with dire consequences), he would be sent to judicial custody where they will extract a confession under torture. Kulbhushan did not have a ione side is the pit, other the well.Recommend

  • disqus_MKeynes

    We saw how the entire legal fraternity in one city garlanded Mumtaz Qadri and scared any lawyer from taking up any case against popular sentiment. Even judges have been scared in cases of kidnapping of Hindu girls. So justice system in Pakistan is not a fair system at all.Recommend

  • disqus_MKeynes

    There was a study sometime back where Chinese stoppage of Brahmaputra will not have severe effects on water availability. The severe effect will be in the form of sudden release and consequent floods. I dont have a reference to that story now.Recommend

  • Patwari Can, NZ, US, UK, Aus.

    Well, sorry to tell you, everyone and his brother lost track
    of whatever you were trying to put across in your diatribe,
    by the second paragraph of your Hindutva Dirge.
    You can do cartwheels, somersaults, lamentations, recite all
    the hindu holy incantations and mantras but it won’t change
    anything. It’s done.
    As the learned author of the blog pointed out, benevolently,
    Hindustan is a ‘rogue nation’. She was being polite.
    There are choice words that can describe Hinduland much
    better,…..but they can’t be printed.Recommend

  • Patwari

    Do you know the date, that a Muslim village was set on fire in Mizoram?
    August 2nd. 2016.
    Because a Muslim boy from the family was seeing a hindu girl.
    That happened on Oct 18th. 2016.

  • Anoop

    Sati, eh? It’s still practiced you are saying..Can you cite a documented practice of it?

    This is your servile mentality in motion. Going against the religion of your ancestors to please your present masters, even to the extent of lying!

    I’m waiting for you to show me a few recent cases of Sati.

  • Anoop

    I just finished watching ICJ upholding the Indian version and struck down Pakistani arguments, all of them.

    All I want to say is: Ha ha ha ha ha..Recommend

  • LS

    Like the country their lawyers are also sham.Recommend

  • LS

    Google.. Likelihood – The state or fact of something’s being likely; probability being high of something happeningRecommend

  • LS

    Well criminal can also do what it like despite the judgement handed over by the court. The question is what will be the consequences of NOT following the LAW from international community.Recommend

  • Aman K. Chandran

    Hii Mrs Aniqa Shaikh. I hope the ICJ verdict was to your satisfaction. Oh and by the way, that was Harish Salve for you. He only charged Re.1 for this case. That’s the difference between India and PakistanRecommend

  • Aman K. Chandran

    I would love to see Ms. Sheikh’s reactionRecommend

  • vasan

    Now that ICJ has delivered its verdict, you know who got fooled by whom nowRecommend

  • Tommy Gunn

    Aniqa ji, any comment on the humiliation of Pakistan at ICJ today? LolRecommend

  • sParthiv
  • wb

    Are you still writing illogical things or hiding in a dark cold hole?Recommend

  • wb

    Still hurting from ICJ verdict?Recommend