Friday 19 May 2017

Kulbhushan Jadhav verdict at ICJ a diplomatic win for India

Kulbhushan Jadhav verdict at ICJ a diplomatic win for India

Thursday's verdict(निर्णय) by the International Court of Justice to hold the execution(क्रियान्वयन) of Kulbhushan Jadhav — sentenced to death by a military court in Pakistan — is no doubt a big diplomatic
and legal victory for India at the highest level. More than that, though, it is a huge political win for Narendra Modi. India has allowed herself to be bogged down by hesitations(अंदर की झिझक) of history in dragging bilateral disputes with Pakistan to international forums. Despite his enormous political capital, the prime minister and his Cabinet colleagues couldn't have taken lightly the decision to knock on ICJ's doors, much less foreseen the verdict. Gopal Baglay, spokesperson of the Ministry of External Affairs, addressing a press conference after ICJ verdict on Kulbhushan Jadhav on Thursday. PTIGopal Baglay, spokesperson of the Ministry of External Affairs, addressing a press conference after ICJ verdict on Kulbhushan Jadhav on Thursday.
Bear in mind that the ICJ was not even in session when senior counsel Harish Salve flew(उड़ान भरी) to The Hague on 8 May and submitted an urgent application to the United Court's registrar along with an "intense(तीव्र)" 20-minute briefing. The risks involved were considerable. The ICJ could have simply ignored India's application. And even when it did agree for an oral hearing, India wasn't assured of a favourable ruling.

The decision to move the judicial arm of United Nations drew many skeptics to conclude that this move turns a bilateral issue into a multilateral one and Pakistan will henceforth seize this chance to highlight the trouble in Kashmir. It was argued that since the ICJ lacks enforceability, India has nothing to gain and everything to lose because it opens us up to international scrutiny. If the prime minister showed considerable appetite for risk-taking in playing the ICJ gambit, he has been handsomely paid off. Thursday's ruling uplifts India's diplomatic stature and significantly strengthens Modi's hands. In passing a judgment upholding Salve's appeal for provisional measures and throwing out Pakistan's objections, the ICJ has handed Modi a resounding political win that may also have far-reaching strategic ramifications.

India has long remained a victim of defeatism in foreign policy and it required a bold step from the Modi government to remove the mental cobwebs. The resounding verdict should instill confidence in us that India isn't a rogue nation like Pakistan. ICJ's unanimous judgement signifies that a rule-based state that respects international laws is more likely to benefit from moving disputes from a bilateral to multilateral framework especially when it concerns revisionist states.
In fact, irresponsible states with weak democratic structures like Pakistan are more likely to abide by international rules and conventions when coerced by major powers to do so. The move to take the Jadhav case to the ICJ, therefore, may be read as a turning point in India's foreign policy. And Modi must get the credit for it.

Not only was the court's verdict unfavourable for Pakistan, its language was quite harsh. It dismissed Pakistan's contention that there is no "urgency" in the case, established that it enjoys jurisdiction over interpretation of Article 36 of Vienna Convention (which India had invoked) and observed: "Pakistan shall take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order. The Court also decides that, until it has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order."

To the extent that international courts lack enforceability in its judgments against sovereign states, it could still be argued that India's 'victory' is more a diplomatic and tactical than a legal one.

ICJ, however, has been quite clear that the order is binding on Pakistan and any violation of it will open the state to international sanctions. If Pakistan still decides to brazen it out and carry out the execution in contravention of the order, it shall not only open itself up to censure, it will be exposed further as a rogue state that carries no credibility. Such an eventuality will carry a deep diplomatic price. It is evident, therefore, that Modi has also scored a diplomatic victory over Pakistan without having to take recourse to coercion or force against a nuclear-armed nation.

These gains, however, fade in the face of Modi's huge political windfall. India has contested Pakistan's claim that Jadhav is a spy. Even if, for arguments' sake, we assume that the Indian national was indeed involved in acts of espionage, that ought not to lessen India's moral obligation in striving for his release. Statecraft is not governed by questions of ethics, however. Spies, when caught, are summarily disowned by their governments. This is where Modi has scored a massive moral and political victory.
As Praveen Swami points out in his piece for The Indian Express, spies do an utterly thankless job. "Few governments," he writes, "Indian or otherwise, have fought as hard for the lives of their citizens as New Delhi has done for Jadhav — those in the secret service are, by custom, abandoned to the torturer's custody."

New Delhi could have simply shrugged off all connections with Jadhav to avoid uncomfortable questions. Though it has claimed that Jadhav wasn't a spy, there are enough unanswered questions in India's narrative that the retired Indian naval officer was merely a private citizen minding his own business at Chabahar port. Do remember that India was careful not to contest the merits of the case at ICJ. In choosing to fight for the Indian national's release, however, the government has shown admirable moral commitment.

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