Legal experts say ICJ's decision on Jadhav ‘provisional’

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KARACHI: Legal experts have opined on Thursday that the decision of International Court of Justice (ICJ) on Kulbhushan Jadhav's case is provisional and the court will take its time to reach a final decision on the matter.

Speaking in Geo News' show 'Aaj Shahzeb Khanzada Kay Saath' International Legal Advisor South Asia of International Commission of Jurist Reema Omer said: “In the laymen`s term, it is an interim order. Till now the jurisdiction of the court and merit has not yet been decided,”

Talking about the decision, she said that Pakistan cannot execute Jadhav till the ICJ's proceeding are going on. 

She further said that the ICJ`s proceedings will continue for a number of months or years.

“It takes two-three years in such cases and often the provisional judgment calls for a stay,” Omer added.

“Pakistan is a party to the Vienna Convention. It has to abide by the rules. To say that Pakistani lawyer talked for 40 mins, not 90 – is an excuse and a diversion.”





The legal expert said that Indians have raised an article of Vienna Convention in their argument.

“Indians have raised Article 36 which is simple that if there is a dispute on a treaty signed by two parties then ICJ will resolve the dispute,” she said. 

“The discussion on the case turned political than legal that is why people became little surprise but those who have followed such cases knew that this is the decision which was meant to come. It’s a death penalty case – a matter of life and death for someone.”

Meanwhile, former judge of the International Criminal Tribunal Justice Ali Nawaz Chohan also said that the decision was an interim order.

“It's still in Pakistan's domestic jurisdiction to make a new court or tribunal while keeping in light the due process of law.”

The International Court of Justice (ICJ) on Thursday ordered Pakistan to halt the execution of Indian spy Kulbhushan Jadhav until a final decision in the proceedings.

"Pakistan shall take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in these proceedings," ordered Judge Ronny Abraham, president of the court, as he announced the decision.

The ICJ rejected Pakistan's stance and stated that the court had jurisdiction and would hear the case and seek arguments from both parties.

Judge Abraham stated that the ICJ had prima facie jurisdiction under Article 1 of the Optional Protocol to the Vienna Convention. The court further observed that the existence of a 2008 bilateral agreement on consular relations between India and Pakistan does not change its conclusion on the issue of jurisdiction.

“Pakistan shall inform the court of all measures taken in implementation of the present order. The court also decides that, until it has given its final decision, it shall remain seized of the matters which form the subject-matter of this order,” the order stated

Explaining its reasoning, the court began by establishing that based on the initial facts, it has jurisdiction over the case.

According to the judgment, it then turned to the question whether the rights alleged by India are at least plausible and decided in the affirmative.

The court then focused on the issue of the link between the rights claimed and the provisional measures requested and observed that a link exists between the rights claimed by India and the provisional measures being sought.

The court then examined whether there is a risk of irreparable prejudice and urgency. It considered that the mere fact that Jadhav is under a death sentence and might, therefore, be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The court further observed that Pakistan has indicated that any execution of Jadhav would probably not take place before August 2017. “This means that there is a risk that an execution could take place at any moment thereafter before the court has given its final decision,” it stated, adding that Pakistan has [also] not given any assurance that Jadhav will not be executed before the court has rendered its final decision. “In those circumstances, the court is satisfied that there is urgency in the present case,” it stated.

Following the judgment, Foreign Office spokesperson Nafees Zakaria stated that Pakistan had challenged the authority of the ICJ after consulting with all institutions and agencies. "No institution can be party to Pakistan's national security," Zakaria said.