Why I Disagree With The Analysis Of Ex-Chief Justice Iftikhar Chaudhry Regarding The Jadhav Case (India V. Pakistan)
This past week, after the order on the indication of provisional measures delivered by the International Court of Justice (ICJ), there have been many misconceptions that have come to the fore – some articles have dealt with those misconceptions, one of which can be found here.
Among these many misconceptions included, to my surprise, one from our former Chief Justice Mr. Iftikhar Chaudhry who gave his analysis on the recent measures which can be found at the end of this article wherein he categorizes the decision of the court to be in ‘error’. To summarize, the points he iterated were threefold.
- Firstly, that due to the 2008 agreement the ICJ ‘erred’ for it had lack of jurisdiction.
- Secondly, Art. 1 of the Optional Protocol to the Vienna Convention on Consular Relations Relating to the Compulsory Settlement of Disputes and its application to alleged terrorists. This latter point has been dealt with in the article mentioned at the very beginning in the context of the requirement of mere plausibility of rights, therefore this will not form part of the discussion herein.
- Thirdly, he voiced his concerns regarding the application of Art. 26(2) of the ICJ Statue and the role of Art. 31(1) of the ICJ Statue in this particular matter. Accordingly, I will deal with these three points turn by turn to show as to how and why I disagree with the analysis put forward by Mr. Chaudhry.
Starting with the first point, the issue is stating that the ICJ had erred in ignoring the 2008 bilateral agreement only to assume jurisdiction which it didn’t have. What must be understood here is that at this preliminary stage of provisional measures the ICJ doesn’t need to consider such questions. Whilst the Court has time and again mentioned as to what elements are required, I will reiterate as to what they are. There must be a ‘prima facie’ jurisdiction (Avena case), plausibility of rights (The Temple of Preah Vihear case), a link between the rights to be determined upon the merits stage (Land and maritime dispute between Cameroon and Nigeria) and an imminent likelihood of an irreparable risk (Passage of the Great Belt).
As is evident, the question of jurisdiction is seen in only the first of these elements i.e. the requirement of a ‘prima facie’ jurisdiction. Judge Bhandari in his declaration on the indication of provisional measures raises some pertinent points which do indeed give the Court at the very least a prima facie jurisdiction e.g. the requirement of Art. 102 of the UN Charter to register treaties with the UN and the effect of Art. 73 of the Vienna Convention on Consular Relations with regards to the 2008 agreement, none of which the Court needs to decide at a preliminary stage. Indeed these points are capable of satisfying this first element, particularly because of the very low bar that has been set by the Court in the previous cases (e.g. Military and Paramilitary activities in and against Nicaragua). Thus to use the words ‘erred’ whilst referring to the indication of these measures is quite misleading because the Court at this stage simply doesn’t need to decide on this issue.
Arguendo, even if one might argue that there is doubt and because of that there is lack of jurisdiction it would still be sufficient for the Court to approach the indication of provisional measures in a liberal manner, and surely it has the authority and the power to do so as Art. 36(6) of the ICJ Statue clearly states that, “In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”
Moving on to Art. 26(2) of the ICJ Statue, it plainly talks about the constitution of a ‘chamber’. Essentially it means “any chamber that the Court may form pursuant to deal with a particular case, after formally consulting the parties regarding the number of its members – and informally regarding their name – who will then sit in all phases of the case until its final conclusion, even if in the meantime they cease to be Members of the Court.” Mr. Chaudhry stated that the ICJ Statue hadn’t been followed. However, such a conclusion could only be derived from reading the text in isolation. The forming of a chamber has been practised extremely rarely (e.g. The Gulf of Maine Case) and has not been used in recent years. To add to that a certain procedure lies behind the formation of such chamber which has seemingly been ignored by Mr. Chaudhry and without which the article cannot be applied. The Rules of the Court in Art. 17 entail, and very clearly so, that it is triggered upon a request that is made by a party. Clearly neither Pakistan nor India has exercised this right and they have instead chosen, like almost all others, to opt for the full quorum of the Court, so to say that this specific provision was not followed by the ICJ is clearly misleading.
With regards to the appointment of an ad hoc judge under Art. 31(1) of the ICJ Statute, Mr. Iftikhar Chaudhry has stated that this was obligatory upon the Court. Once again, like Art. 26, the word ‘retain’ entails that this right is vested in the member state coming before the Court and is thus not up to the Court to appoint ad hoc judges by itself until the time that the state party makes a request. Again, the procedure emanates from the Rules of the Court where a reading of Art. 35 in line with the text of Art. 31 of the Statute clearly shows that this power has been conferred upon the parties, in particular with the use of the words: “…exercise this power conferred by Art. 31.” Indeed, in many cases the parties decide not to opt for ad-hoc judges (Temple of Preah Vihear) but to say that in all of these cases the court has not fulfilled its obligations would perhaps not be the accurate terminology to use.
I have the utmost respect for Mr. Iftikhar Chaudhry, the former Chief of Justice of Pakistan, however, we mustn’t let misconceptions overshadow the actual reality i.e. the preliminary nature of provisional measures. Thus these points needed to be clarified.
Finally, it must be noted that Pakistan will get the opportunity to argue on jurisdiction as well as other issues relating to consular access and Jadhav’s status as a spy, provided the case reaches its merits stage. We must have faith in the system and processes of the ICJ and in the competence of the counsel hired by Pakistan, be it Mr. Khawar Qureshi QC or anyone else.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organisation with which he might be associated.
