My experience at the ICJ with special reference to Kulbhushan Yadav’s Case’. Harish Salve Former Solicitor General of India

Greater Noida – School of Law and Legal Affairs, Noida International University conducted its International Webinar series on with over 500 participants from all across India. The Speaker for the webinar was Harish Salve, one of the most renowned advocated of India with International acclaims. The topic of the Webinar was ‘My experience at the ICJ with special reference to Kulbhushan Yadav’s Case’. The Webinar was moderated by Baidyanath Mukherjee, Assistant Professor, School of Law and Legal Affairs. The Webinar began with a welcome address by our Chancellor Dr. Vikram Singh, IPS, Ex-DGP, U.P. Thereafter, Salve addressed the participants.
Mr. Salve began by saying “the dream of every Public International Law advocate, is to appear at the ICJ in his lifetime and he was fortunate enough to appear at the ICJ twice’. The ICJ is created by the United Nation’s Charter. The constant endeavors of ICJ have to be to evolve principles consistent with the sovereignty of nations and yet enforce certain basic values by which mankind can avoid conflict, war, resolve disputes without having to use their Armed forces. The 1st case he appeared for was The Marshal Island’s Case’. It is a Small Island in the pacific and has a buried history when US used it for its Nuclear experiments. The Nuclear fallout in Marshal Island had the worst effects on human lives due to high exposure of radiation. The Marshal Islands raised their voice and prosecuted India, Pakistan and Great Britain. The Advocates for the Marshal Island tried to convince the ICJ on building some guideline to curtail the nuclear development preceded by India, Pakistan and Great Britain. India advocated by Harish Salve, made their ground clear where they contended that the nuclear development is purely for the purpose of their Defense and strictly adheres to the ‘No first use rule’. India came out of this case unsketched but Mr. Salve had then realized that the Judges at the ICJ was very interested in developing Human Rights Jurisprudence.
Kulbhushan Yadav’s case came up after two years of the Marshal Island case. Salve believes that Yadav was being put to death by Pakistan just to prove a point. In this case the primary hurdle was that disputes between India and Pakistan could be taken to the ICJ because at that time disputes between commonwealth and erstwhile commonwealth countries could be taken to the ICJ and India followed a different dispute resolution mechanism, but in recent scenarios India is no longer a common wealth and Salve says ‘There is no such thing as the common wealth’ but this jurisdictional carve out still remains. Therefore, the case was initiated under the Vienna Convention. Salve said that India repeated wrote to Pakistan for a meeting with Yadav but Pakistan steadfastly refused. Pakistan filed FIR against India where along with national security advisor to many other personals were falsely accused. They tried to bargain with India and on this note India approached the ICJ. Salve says that our then External Affairs Minister Late Sushma Swaraj asked him to keep the case low profile and Salve followed accordingly. Salve recalls by saying ‘The written materials relating to the case were not saved in the cloud, instead a pen drive was used to save files relating to the case’. salve had a meeting with the President of the ICJ and came out with a way where the President of the ICJ wrote a letter to Pakistan asking whether they would keep in abeyance the execution of Yadav. Pakistan said No as answer. Within 10 days thereafter a hearing was fixed known as the Provisional measure. Salve says that it was challenging for him as the speech had to be in written format and advocates in Indian culture as used to extempore speeches and Salve learnt how to deliver the written speech in a dedicated time period. Advising the participants Mr. Salve said that ‘We Indian need to learn to speak less and in a measured way’. The ICJ very politely told Pakistan not to use the ICJ for their own propaganda as they wanted to create a fuss about the case by bringing in a video tape of Yadav’s. The day after the ICJ released the Order in Provisional measures in other words they granted a stay on the execution. India prayed before the ICJ that Yadav should be released Mr. Salve personally wanted to persuade the court to drift it toward Human Rights bringing in ICCPR and the Convention on Human Rights and found that trial by the military court may not meet the minimum standards of due process. Mr. salve and his team tried to develop a theory that the ICCPR and the Human Rights Convention should be read into the Vienna convention and contented that since the review was to be done by the military court thus, Pakistan had no choice but to release Yadav. Pakistan tried to raise false accusation against Yadav that he was a spy and Vienna convention did not arise which the ICJ was not convinced with. ICJ strictly came down at Pakistan and told them that they had brazenly violated Vienna convention. Pakistan argued that it had to be redressed within their Legal system but India argued that Pakistan’s legal system has extends and affords no relief against military gods in which this particular lapse can be addressed. India contented that ‘How could Pakistan convict one man under multiple crimes and accordingly there should be a fir and trail for each such case along with multiple confessions but Pakistan issued only one video showing vague confession with no express and specific confessions by Yadav. Mr. Salve says that even to date Pakistan has not shown any FIR even after repeated request by India to show the charges against Yadav and the only reply Pakistan gave was that the case in under review . Mr. Salve clearly states that this whole Kulbhushan Yadav conviction by Pakistan is a farce. The ICJ ordered Pakistan for review and reconsideration and if required for amendment in their laws , it had to be made and that their legal system was no good enough. Salve further says that Pakistan now does not know what to do with the Judgement. Mr. salve further comments that ICJ realized that Yadav was an unfortunate victim of the differences between two neighboring countries. So, ICJ came out with their Judgement which kept the dignity of Pakistan intact but gave them a chance to fix the problem. He also says that the entire take of Pakistan in Yadav’s case is a Joke. The Webinar came to an end with a vote of thanks delivered by Badal Chatterjee, Assistant Professor, School of Law and Legal Affairs, Noida International University.