Kulbhushan & The ICJ

The ICJ will not hear a case if the state against whom a case filed by another state, unless it accepts ICJ’s jurisdiction.

The Big question.

Why did Pakistan accept the ICJ’s jurisdiction unless Pakistan “consented” to accept ICJ’s jurisdiction in this case?

Here’s the operating rule.

It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case

Clearly Pakistan accepted the ICJ’s jurisdiction in this case after receiving the formal complaint from the ICJ, which was filed by India. 

The question is.

Who granted this consent?

Certainly this cannot be but has to be none other than our PM.

The third and perhaps a much bigger question.

Why did PM Nawaz accord this consent to ICJ?

Here’s the full section on this ruling!

SECTION C. PROCEEDINGS BEFORE THE COURT

Subsection 1. Institution of Proceedings

Article 38

          1. When proceedings before the Court are instituted by means of an application addressed as specified in Article 40, paragraph 1, of the Statute, the application shall indicate the party making it, the State against which the claim is brought, and the subject of the dispute.

          2. The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based;  it shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based.

          3. The original of the application shall be signed either by the agent of the party submitting it, or by the diplomatic representative of that party in the country in which the Court has its seat, or by some other duly authorized person.  If the application bears the signature of someone other than such diplomatic  representative, the signature must be authenticated by the latter or by the competent authority of the applicant’s foreign ministry.

          4. The Registrar shall forthwith transmit to the respondent a certified copy of the application.

          5. When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State.  It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case.

While I do not have any pretensions of being a black coat (a blackguard maybe)!

I was drawn to this by Dr. Babar Awan’s comment on this point and hence prompted my arduous Google research!

*If anything, at a minimum, this is highly questionable.

And clearly, high treason at the other end of the spectrum.

Jandal’s visit now begins to make much more, in person and away from Islamabad and prying eyes and listening ears.

Nawaz Sharif has lots of questions to answer!

It appears that somehow Kulbhushan’s signed letter to the Indian Government, seeking ICJ Intervention, reached India.

Having researched some more and consulted some legal minds.

Here’s what it looks like in summary.

1. ICJ Jurisdiction is only based on consent of both parties. The key principle is that the Court only has jurisdiction on the basis of consent. The court has no true compulsory jurisdiction.

2. Unless under another treaty, multilateral or bilateral, the two nations have accepted ICJ’S jurisdiction on a particular issue or those covered by the treaty. Don’t know if Kulbhushan’s case falls under this clause!

3. India has moved their case on the basis of “Diplomatic protection,” explained below.

“…In international law, diplomatic protection (or diplomatic espousal) is a means for a State to take diplomatic and other action against another State on behalf of its national whose rights and interests have been injured by the other State. Diplomatic protection, which has been confirmed in different cases of the Permanent Court of International Justice and the International Court of Justice, is a discretionary right of a State and may take any form that is not prohibited by international law. It can include consular action, negotiations with the other State, political and economic pressure, judicial or arbitral proceedings or other forms of peaceful dispute settlement…”

The interesting thing is that Kulbhushan had to give a signed undertaking to the Indian Government to take up his case at the ICJ.

He used the undermentioned rule to ask India to take up his case at the ICJ.

Exhaustion of local remedies

Diplomatic espousal of a national’s claims will not be internationally acceptable unless the national in question has given the host state the chance to correct the wrong done to him through its own national remedies. Exhaustion of local remedies usually means that the individual must first pursue his claims against the host state through its national courts up to the highest level before he can ask the state of his nationality to take up those claims and that state can validly do so.

The question is how did his signed undertaking reached Indian hands, when he had no access to any Indian consular services in Pakistan?

Some conspiracy theory questions?

Was this given to Jandal by Nawaz Sharif, who hand carried it back to India?

If so, who acquired it from Kulbhushan and gave it to Nawaz Sharif?

Even more questions.

Syed Haider Raza Mehdi
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Syed Haider Raza Mehdi

Advisor & Senior Analyst at CommandEleven
Haider Mehdi is the current Convener of The Strategy Study Group, founded by the late Col. S.G.Mehdi M.C, former Group Commander of Pakistan Army's Special Services Group (SSG). Haider, is a former Pakistan Army officer, corporate leader, management consultant, business trainer and serial entrepreneur. Currently based in North America, with deep interest in South Asian, Middle Eastern and Regional geopolitics.
Syed Haider Raza Mehdi
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