2345 hours 9th May. I had just enjoyed watching Kolkatta Knightriders fail to chase a total of 167 against Kings XI Punjab and keeping Punjab's qualification hopes alive. Pleased that the form of the second placed Knightriders was faltering, I was about to go to bed as a happy Mumbai Indians fan secure in the knowledge that our top spot was not under threat.
Just as I went through with my bed time ritual of scrolling through my twitter timeline for the last time in the day, I was startled by this tweet of Sushma Swaraj, India's Cabinet Minister for External Affairs, posted just after mid-night:
I have spoken to the mother of #KulbhushanJadhav and told her about the order of President, ICJ under Art 74 Paragraph 4 of Rules of Court.— Sushma Swaraj (@SushmaSwaraj) May 9, 2017
Minutes later, online news websites in India had reported the news -
#KulbhushanJadhav row: International Court of Justice #stays former naval officer's #hanging by #Pakistan https://t.co/Ed6SC7zHxz pic.twitter.com/NU6rCo4dMw— Firstpost (@firstpost) May 9, 2017
International Court of Justice stays execution of Kulbhushan Jadhav in Pakistan: Report https://t.co/YlFggXIu4p— scroll.in (@scroll_in) May 9, 2017
While the newspapers and TV newschannels followed up the next morning -
One thing that was consistent in the coverage across the Indian media was that it gave the readers / viewers the impression that the ICJ had issued a 'stay order'.
In contrast, Pakistani media reports mentioned the filing of the petition but no mention was made of any stay order. Dawn went with the headline "India moves International Court of Justice against Jadhav's conviction" while The Express Tribune said "India petitions ICJ for stay in Kulbhushan Jadhav’s death sentence". Daily Pakistan Global even asserted that the Indian claim was false:
Indian media, govt incorrectly claim stay granted by ICJ - No official statement from ICJ yethttps://t.co/QRxKVNrjUS— DailyPakistan Global (@dailypakistangl) May 9, 2017
In turn ScoopWhoop in India published an article claiming that the Pakistani media was 'in denial of the stay on Jadhav's execution'.
While there are assertions aplenty from both sides, nobody has really tried to answer the question of whether or not a 'stay order' of the ICJ really exists.
Since Jadhav has already been convicted and sentenced to death, India also requested that the ICJ pass 'provisional measures'. Provisional measures are similar to the concept of 'interim orders' in the Indian legal regime. Previously while deciding the LaGrand case which incidentally was also about VCCR violations, the ICJ has clearly held that the 'provisional measures' are binding.
ICJ's press release summarises India's request for the provisional measures as follows:
The request for provisional measures
India has approached the International Court of Justice alleging a violation of the Vienna Convention on Consular Relations (VCCR) to which both India and Pakistan are parties. Whenever a national of another State is arrested in the territory of a party to the VCCR, Article 36 of the VCCR requires the State to inform the consulate of the country of that arrested national, allow the consulate to meet and assist the arrested person in the criminal proceedings if he so desires. India is alleging that these provisions were not adhered to in Jadhav's case and that India was denied consular access to Jadhav.
Since Jadhav has already been convicted and sentenced to death, India also requested that the ICJ pass 'provisional measures'. Provisional measures are similar to the concept of 'interim orders' in the Indian legal regime. Previously while deciding the LaGrand case which incidentally was also about VCCR violations, the ICJ has clearly held that the 'provisional measures' are binding.
ICJ's press release summarises India's request for the provisional measures as follows:
"India therefore requests that, “pending final judgment in this case, the Court indicate:
(a) [t]hat the Government of the Islamic Republic of Pakistan take all measures necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed;
(b) [t]hat the Government of the Islamic Republic of Pakistan report to the Court the action it has taken in pursuance of sub-paragraph (a); and
(c) [t]hat the Government of the Islamic Republic of Pakistan ensure that no action is taken that might prejudice the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav with respect of any decision the Court may render on the merits of the case”.
Urgent communication
Fearing that Jadhav maybe executed before the ICJ even has an opportunity to pass provisional measures, India requested that the ICJ pass an order on provisional measures without waiting for an oral hearing. However, India making a request does not automatically mean that ICJ would make such an order without hearing Pakistan. The ICJ has instead scheduled a hearing on the request for provisional measures in front of all the judges at 10am (Hague time) on Monday 15 May 2017. ICJ is scheduled to hear from both the countries that day. If after this hearing the provisional measures were passed in India's favour, it may be accurate to say that Pakistan has been ordered to 'stay' Jadhav's hearing.Pending the hearing, the president of the ICJ (akin to a Chief Justice of an Indian High Court or Supreme Court) has merely sent an 'urgent communication' to the Prime Minister of Pakistan. The ICJ press release regarding this urgent communication does not reproduce the contents of the the urgent communication.
This urgent communication is what Susham Swaraj mentioned in her tweet as the 'order of the President, ICJ under Article 74 Paragraph 4 of the Rules of Court' (sic). Here is how Article 74 of the Rules of the Court reads:
Article 74
1. A request for the indication of provisional measures shall have priority over all other cases.2. The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency.
3. The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it. The Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings.
4. Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.
While the words "act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects" suggest that the President of the ICJ in his communication must have asked the Pakistan government to maintain status quo, the fact that these are preceded by the words "may call upon the parties" suggests that the 'urgent communication' is not in the nature of an order but merely a suggestion or a request as there is no language stating that the communication is binding.
European Journal of International Law blog has pointed out that while such a communication could be seen to be similar to provisional 'holding requests' of ICSID tribunals which have been held to be binding, the crucial difference is that the ICSID holding requests are passed by the entire tribunal while the ICJ urgent communication is by the President acting alone.
Thus it seems that the Pakistani media has been accurate about there being no 'stay order' per se in this case while Indian media has gotten carried away.
Precedents
Many congratulatory posts on Twitter by Indians show that the ordinary Indians have high hopes of a favourable outcome for Jadhav from this proceedings. However, if the previous three cases of Paraguay v. United States, LaGrand case (Germany v. United States) and Avena case (Mexico v. United States) are anything to go by, there exists a possibility that Jadhav may be executed regardless of the decision of the ICJ.
Read more about these precedents in my scroll.in piece here - A short history of India vs Pakistan cases at the International Court of Justice - Despite the headline, that piece does cover other non India-Pakistan VCCR cases as well.
I have also in the past written for scroll.in about all the India-Pakistan international adjudication cases in greater detail here - Five previous India-Pakistan disputes that have been taken to international forums
In my interpretation, 'may call upon the parties' means that the President of the ICJ has the discretionary power to request parties to act in a certain manner and has to make the assessment for it depending on the facts of the case. The binding value of such a request is at best based on the good offices of the President, so it can be said that the dispute is still at a diplomatic level rather than legal. Certainly, Pakistan is not bound by such a request, but it would reflect poorly on Pakistan's image as rule of law State, if it chooses not to comply.
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