Ashok Bhan
Kulbhushan Jadhav case will hit India-Pakistan relations badly.The International Court of Justice (ICJ) interim order directing Pakistan that till the proceedings are finally decided Jadhav should not be executed. It appears from here it would take a year or more for ICJ to conclusively decide the issues raised by applicant India.The order is historical,because in 1999 when both Countries went to world Court over shooting of a Pakistani military plane the ICJ ruled that it had no authority to decide the case.But 18 years later in the changed circumstances has decided to hear the case and granted interim order in favour of India.As lawyer my view is that the ICJ order has left a gap on the core issue of granting consular access to Jadhav,the order is silent but in the days to come the only big comfort for him will be that he will not be hanged soon.This Order has further strained India-Pakistan relations.
For India the verdict is a victory.India has not only saved its citizen from gallows but also came clean for not being meddlesome in the internal affairs of Pakistan.There is also a flip side to the story.Nothing stops Pakistan to approach World Court for consular access to Pakistani terrorists caught by security forces in Kashmir and elsewhere and lodged in Jails.Pakistan military establishment may want to send Jadhav to gallows but Shrief Govt.has to protect him under international obligations till the matter is finally decided by International Court of Justice.
The decision to move the judicial arm of United Nations drew many sceptics 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 theICJ lacks enforceability, India has nothing to gain and everything to lose because it opens us up to international scrutiny. If the Country showed considerable appetite for risk-taking in playing the ICJ gambit, thankfully the Country has been handsomely paid off. ICJ”s ruling uplifts India’s diplomatic stature and significantly strengthens India. In passing a judgment upholding India”s application for provisional measures and throwing out Pakistan’s objections, the ICJ has handed India a resounding political win that may also have far-reaching strategic ramifications.
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 seized of the matters which form the subject-matter of this Order.”
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.
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 India has scored a massive moral and political victory.
The relations with Pakistan have been defined by the partition of British India in 1947, the Kashmir conundrum and the military conflicts fought between the two Countries.The relations have always been plaughed by conflicts,hostilities and suspicion,despite the two south Asian Countries share the common linguistic, cultural, geographical and economic linkages.
There have been military wars,continuing undeclared war,numerous skirmishes and stand offs between the two Countries.Many successful attempts to improve relations through Shimla agreement,Agra and Lahore summits etc.The relations soured after Saichen conflict of1980,Kashmir insurgency of 1989 on wards,Kargil conflict of 1999. Terror attack on Indian Parliament in 2001 almost brought two nuclear nations to a brink of war.Mumbai terror attack of 2008 by Pakistani terrorists,killing hundreds of innocent people gave severe blow to the relations. Pathankot and several terror attacks on Indian soil and perennial terrorist activities in JK State and unnecessary intervention in the internal affairs particularly in Kashmir situation continue to distract the real and meaningful talks with Pakistan.
Prime Minister Modi’s initial honest outreach to Islamabad was described progressive and his credentials are internally recognized as a moderate leader of India. It was hoped that Modi’s friendly relations with US will always be helpful in moving ahead with the structured dialogue with Pakistan. US is always concerned about the regional security in SouthAsia. USexperts feel that India-Pakistan tensions will complicate and spoil US’s interest in the region. In India, the foreign policy expert including myself, alerted Prime Minister Modi about the implications of China-Pakistan close relations as Beijing is trying to remake geography by launching huge infrastructure projects and bridges on the borders. Therefore, engagement at a comprehensive level with Pakistan and try for resolution of issues becomes diplomatically important despite its belligerence.Even in Jadhav case,parallel quite diplomacy is always an available option.
Diplomats are aware that PM Modi may not be able to transact any big issue with Pakistan. Pakistan always wants business on Siachen,water issues and Sir Creek which, in turn, is always difficult. Kashmir is used only as a bargaining chip.India will not agree for any third party inter-locution. India does not buy any formula on Kashmir except the good friendly and neighborly/trade relations. The terror and talks cannot go together. But this time, Pakistan had assured that there would be speedy trail for the 26/11 Mumbai terrorists in Pakistan. Thus, the only issue which can find an agreement is enhanced trade relations and other economic developments schemes but that too take some time to materialize. Conducting frequent talks at different levels, which do not yield satisfying outcomes is part of diplomacy, India and its Prime Minister is to be seen as a participant in the process of buying peace with the hostile neighbouring country to promote his credentials as a modernised leader of India.
Recently PM Modi frankly spoke in a television interview that unless the democratic and military power centers in Pakistan are on same page on the agenda of peace talks for good neighbourly relationsof the two Countries, the whole exercise becomes futile.
(The author is senior Advocate, International Law expert and Chairman, Kashmir policy and strategy group)
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