The Times of India – Pakistan’s plea for rehearing of Kulbhushan Jadhav case may cut no ice with ICJ

Sachin Parashar

New Delhi, 22 May 2017. While Pakistan is said to have sought a rehearing by the International Court of Justice (ICJ) of the Kulbhushan Jadhav case, it is unlikely that this will in any way lead to an annulment, or even dilution, of the interim relief already granted to India.

Acknowledging that Pakistan had violated the Vienna Convention on Consular Relations (VCCR), the ICJ had stayed the execution of Jadhav until the time it delivered its final judgement in the case.

If Pakistan challenges the jurisdiction of the Court, the ICJ may want to address its petition through separate hearings before looking further into the case made by India.

This, however, in no way will affect the provisional measures already granted, including the stay on Jadhav’s execution.

According to experts though, Pakistan could invoke Article 76 of the Rules of ICJ which says that at the request of a party the Court may, at any time before the final judgment in the case, revoke or modify any decision “concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification”.

The same rule also says though that any application proposing such a revocation or modification shall specify the relevant change in the situation and that before taking any decision, the Court shall provide both parties opportunities to present their observations.

“For the Court to revoke or modify its provisional measures, it must be satisfied that the situation that warranted the indication of provisional measures has changed and the provisional measures are no longer necessary in light of new facts or developments identified by Pakistan,” said Geneva based international lawyer Shashank Kumar, a former law clerk at ICJ.

For example, he said, Pakistan could offer a unilateral assurance to the Court, which it did not at the initial hearing, that it will not execute Jadhav until the Court issues its final judgment.

“It would be for the Court do decide whether, considering the exact scope of Pakistan’s promise, provisional measures may no longer necessary,” added Kumar. Apart from that unilateral assurance which Pakistan could contemplate giving, there really hasn’t been any development, or disclosure of any new fact, which Islamabad could use to claim a change in situation.


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