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Understanding Kulbhushan Jadhav

It seems like many in our media have misunderstood the issue of Jhadav, in particular, the legal angle of the issue pending determination before the ICJ.

ICJ has to determine the following:

1)        Whether facility of consular services granted by Article 36(1) of Vienna Convention on Consular Services could have been exercised by Jhadav keeping in mind a Bilateral Treaty between Pakistan and India signed in 2008 which limits consular services especially in matters involving national security?

2)        If answer to question No.1 is YES, was consular service granted to JHADAV or not?

Read more: Pakistan Vs India: The Jhadav Battle

3)        If answer to question No.2 is no, can ICJ or retrial or Restitio In Integru (release and repatriation as prayed by India) or only direct Pakistan to reconsider and review the decision in line with its domestic legal system?

Best scenario for Pakistan will be ICJ recognizing and upholding over-riding nature of its 2008 Bilateral Treaty with India. But this argument lacks legal weight, as the 2008 Agreement was not registered document with the Secretariat and as per Article 102 of UN Charter, unregistered document cannot be pressed before any UN Body (We got the treaty registered in May 2017 after arrest of Jhadav). Thus, if bilateral treaty argument is rejected, then the situation can be analyzed in view of past judicial precedents of ICJ. ICJ in LeGrand Case 2001 and Avena Case 2004 only directed State to review and reconsider the decision in its domestic legal regime, therefore, it is highly unlikely it will or Retrial or Restitio In Integru (release and repatriation as prayed by India).

However, if Retrial or Restitio In Integru is ordered it will be unprecedented and against all legal international legal norms and precedents. Under such situation, we can safely assume, the International Law has now recognized Indian Exceptionalism the way (in past) it has recognized American and Israel Exceptionalism.

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