Kulbushan Jadhav – Much Ado About Nothing

Kulbushan Jadhav – Much Ado About Nothing

Pakistan has taken many adverse hits in the past year in the international legal arena: most prominent among these being the abject failures of the federal government in handling the international arbitrations of significant magnitude. However, these cases, despite involving the most valuable natural resources of the state, have not gained much traction other than a few small pieces in print media. Curiously, the Jadhav case, which is more of a matter of principle and clearly less dire than the debacles in the other international cases, has been the subject of much comment and debate among the legal fraternity and those who put themselves forward as public intellectuals. This may be because Jadhav’s case is a case against India, but this cannot be true, for the Indus Waters case is also against India. Perhaps the reason the Jadhav case receives greater traction is because it is a simple issue that strikes at the core of nationalist feeling of the Pakistani body politic.

The comments on the Jadhav case have been multifarious, but the vast majority of commentary has been of a negative nature, particularly with regards to the legal strategy adopted by Pakistan. It is not difficult to understand why such criticism has come to the fore. The government has generally handled Pakistan’s international disputes in a most pathetic and incompetent manner. This much is apparent from the cases involving international arbitrations of significant magnitude where the government has appointed local and foreign counsel who lack the necessary expertise to advise the federal government, and hence, the results of the cases are adverse to Pakistan, so much so that the World Bank has even refused to write the letters to constitute the Court of Arbitration under the Indus Waters Treaty. Moreover, the international law expert that the government has appointed is a lawyer by profession who has been practising law for nearly twenty years but is curiously unknown to the legal fraternity. This consultant is paid a hefty amount in salary, but is nowhere to be seen in the Jadhav case, despite the purported national importance of the case. This, of course, is perhaps for the best, as there is not much that he can offer in the way of legal assistance to the federal government, but this hearkens to the judgment of Justice Qazi Faez Isa in Rasheed Ahmed’s case, where the Supreme Court lamented the fact that much public money was expended on the salaries of law officers, yet private counsel were also appointed who were paid even greater sums out of the public’s pocket.

In this backdrop, it is not surprising that the criticism of Pakistan’s approach and strategy has been quite harsh. However, it is necessary as a lawyer to look at the particular facts and circumstances of the Jadhav case. There are three criticisms that have been widespread, and are, on the face of it, fallacious.

The first and most prominent criticism in the Jadhav case has been an ad hominem attack on the counsel appointed to represent Pakistan. Such criticism is ill-founded, as Mr. Khawar Qureshi QC is a lawyer with impeccable credentials and was one of the best possible choices to argue the case before the ICJ.

The second criticism questions why Pakistan appeared before the ICJ in the first place. Examples such as the intractable positions of the United States in the Nicaragua case and China in the South China Sea case are cited as examples of states refusing to appear before the ICJ. Pakistan is not a superpower like the US or China. There will be instances in the diplomatic realm in the future where international law can be used in Pakistan’s favour. Pakistan will be in a much weaker position internationally and diplomatically if it has the black mark of having disobeyed the ICJ. Therefore, the decision to appear before the ICJ was eminently correct. Even otherwise, it is a basic principle of legal practice that when a party contests the jurisdiction of a court, that party must appear before such court and argue why it contests such jurisdiction.

The third criticism is more legal in nature. There seems to be a misunderstanding about Pakistan’s acceptance of the compulsory jurisdiction of the ICJ. Some senior lawyers, have, with respect, erroneously stated that Pakistan accepted the compulsory jurisdiction only recently, in March 2017. Nothing could be further from the truth. Pakistan accepted the jurisdiction of the ICJ in 1960. Pakistan has had the honour of having its very own Sir Zafarullah Khan serve first as a judge, then as President of the ICJ. In response to the Marshall Islands’ application to declare Pakistan’s possession of nuclear weapons a violation of international law (the application which was rejected last year by the ICJ), Pakistan in fact revised its declaration on the compulsory jurisdiction of the ICJ, inter alia providing that “all matters related to the national security of the Islamic Republic of Pakistan” shall not fall within the jurisdiction of the ICJ. Prima facie, this would seem to cover the Jadhav case. However, as the ICJ points out at paragraph 26 of its Order:

“The Court recalls that the Applicant seeks to ground its jurisdiction in Article 36, paragraph 1, of the Statute and Article I of the Optional Protocol; it does not seek to rely on the Parties’ declarations under Article 36, paragraph 2, of the Statute. When the jurisdiction of the Court is founded on particular “treaties and conventions in force” pursuant to Article 36, paragraph 1, of its Statute, “it becomes irrelevant to consider the objections to other possible bases of jurisdiction”… Therefore, any reservations contained in the declarations made by the Parties under Article 36, paragraph 2, of the Statute cannot impede the Court’s jurisdiction specially provided for in the Optional Protocol. Thus, the Court need not examine these reservations further.”

The Optional Protocol to the Vienna Convention on Consular Relations, which Pakistan has ratified for the protection of its own consular officers around the world, provides that disputes relating to rights under the said Vienna Convention come within the compulsory jurisdiction of the ICJ notwithstanding other reservations a country may have in its general declarations on the ICJ’s jurisdiction, in keeping with the vaunted legal principle of law lex specialis derogat legi generali (special law supersedes general law). Therefore, the ICJ cannot decline jurisdiction to hear the case.

In any event, the order of 18.05.2017 is merely an interim order and represents the very beginning of the Jadhav case. There is a long way to go and the real legal battle has yet to begin. The legal fraternity and the media would be better served in examining issues of far greater exigency involving Pakistan’s most important resources, and bringing to the fore how the Reko Diq and Indus Waters cases have resulted in massive legal and diplomatic defeats for Pakistan, defeats that stem from the incompetence and insincerity in serving the national and public interest, which is apparent from the stubborn refusal to appoint a lawyer well-versed in international law in the government. These are systemic issues that must be investigated, debated and brought before the public.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Zeeshaan Zafar Hashmi

The writer is a lawyer based in Lahore. He has a Masters of Laws from Harvard Law School and is a former law clerk to the Chief Justice of Pakistan.



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