Has the ICJ really stayed Kulbhushan Jadhav's death sentence?

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 -

• DNA -  Diplomatic win for India, International Court of Justice stays hanging of Kulbhushan Jadhav
• Indian Express -  International Court of Justice stays Kulbhushan Jadhav hanging
• Zee News - International Court of Justice stays Indian national Kulbhushan Jadhav's death sentence awarded by Pakistan

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.

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

What an Irony!

The Guardian's theatre critic, Mark Lawson has written about historical inaccuracies of modern television shows in his article "Not in this day and age: when will TV stop horrendously airbrushing history?" published on the Guardian website on Friday.

Lawson argues that the modern day television shows 'characters with laughably liberal values for their day'. He points out that protagonists in Sky1's eight part drama 'Jamestown' are portrayed as surprisingly liberal feminists which women from colonial Virginia in 1619 were most unlikely to be.

Screenshot from the Guardian website

 He goes on to compare it with a movie set in 1914 in which a character declares “The first world war has just broken out!” While showing someone in 1914 saying 'first' world war is clearly a mistake, I don't think it is quite the same as comparing it with fictional characters' values. The purpose of fiction is to be entertaining and stories of exceptional persons are likely to be much more entertaining that the average folks of the time. Why would any person be interested in a show about the daily drudgery of life in 1619? To be fair to him, later on in the article Lawson does consider the justifications for giving women in the series some modern values but also goes on to discard the those justifications.

However what I found the most ironic was how Lawson also trains his guns on the hit show 'Downton Abbey'. He says (emphasis added),

"Jamestown is produced by Carnival, the company that made Downton Abbey, a show that shocked many students of English class history with its presentation of an early 20th-century Earl who agonised about the working conditions and personal lives of his servants and would obviously have voted Liberal Democrat if the option had existed."

While complaining about the television writers/producers lack of understanding of the historical context, Lawson commits the same mistake himself! In the early 20th century (1900-1925) voters in Britain did have an option to vote for the Liberal Party.

Sir Henry Campbell-Bannerman, of the Liberal Party served as Prime Minister of the United Kingdom from 1905 to 1908 while another Liberal, Herbert Henry Asquith, who was later made the 1st Earl of Oxford and Asquith served as the Prime Minister from 1908 to 1916. Downton Abbey is set in 1912. It is thus set in a time when the Liberal Party had managed to secure the largest number of seats in the preceding General Election in December 1910. It is this same Liberal Party that later merged with the Social Democratic Party in 1988 to form today's Liberal Democrats.

So Mr. Mark Lawson, an earlier version of Liberal Democrats did exist in early 20th-century and the Downton Abbey protagonist may well have voted Liberal!

 ---
Sources:

• Gov.uk - Sir Henry Campbell-Bannerman 
• Gov.uk - Herbert Henry Asquith
• Wikipedia - United Kingdom general election, December 1910

I told you so!

Though I do not blog very often, this blog is now more than six years old and it is time for some reflection on the couple of things that I got right.

In 2013 when the then central government came up with a bank which was supposedly exclusively for women, I wrote this blogpost titled - ‘Bhartiya Mahila Bank - A Misguided and Pointless Endeavour’.

Bhartiya Mahila Bank was inaugurated with much fanfare in 2013 with Sonia Gandhi handing account opening documents to the first customers and the then Prime Minister in attendance. Media reports of the time indicated bank’s ambitious plans of 25 branches in the first year and 75 more every following year..

In 2017 my words have come true and the Bhartiya Mahila Bank has was merged with State Bank of India on 1 April 2017 along with the SBI Associate Banks. The merger has finally ended the central government's first and thankfully the only experiment with a government promoted bank (all other PSUs were nationalised rather set up afresh). Bhartiya Mahila Bank never really promoted itself like other new private banks did and reports indicate that it had significant trouble getting new business. It also also remained headless from August 2015 onward when Usha Ananthasubramnian, the bank's former CMD was appointed as the CMD of Punjab National Bank. At the time of merger, it only had 103 branches which is a far cry from the stated expansion plans at the time of its innaugural.

Outlook has mentioned SBI clearly stating that the business of BMB was insiginificant:

On the merger, the SBI said that although the addition of 103 branches of the BMB and business of approximately Rs 2,000 crore will not have a significant bearing on the SBI, it will be ensured the merger strengthens and reinforces the focus on financing of women entrepreneurs.

Approximately 2,000 crore is also State Bank of India being generous and other reports have pointed out that the special bank for women had total business of only 1,600 crore rupees. While SBI opened its first all women employees branch in 2013, the same year that Bhartiya Mahila Bank was set up, by 2017, SBI already had 126 all women employee branches whereas the Bhartiya Mahila Bank had managed only 7. It couldn’t be clear that women can be served better by State Bank of India.

I had ended the my blogpost with the following words:

“The Mahila Bank is hence a solution that no one was asking for and also one that is likely to worsen the problem which it set out solve. When the question is asked a few years from now “What did the Mahila Bank achieve?”, the government is not going to have any answer.”

Let’s hope that the government has learnt its lesson and does something actually meaningful to improve women’s lives rather than going ahead with half baked segregationist policies.