Things you should know about ICJ's decision on Jadhav

ICJ only had to decide whether such rights are plausible enough to be adjudicated upon at the merits stage of the case

The International Court of Justice (ICJ) announced its decision in relation to India’s Request for the Indication of Provisional Measures in connection with Kulbhushan Jadhav’s case (the “decision”) on May 18, 2017.

The 15 page decision has been met with strong reactions in both countries. Unfortunately, the debate on electronic media has been led by journalists, lawyers and politicians unfamiliar with the concepts of international law and the actual decision itself.
Therefore, it is important to highlight some key points:
India didn't win, Pakistan didn't fail
India didn’t win the case. Pakistan didn’t fail. The decision only relates to India’s request for provisional measures (which, by the way, doesn’t even include a request for granting consular access to Jadhav).
At this stage, it was easier and more likely for the ICJ to favour the Indian request as the threshold for assuming jurisdiction was not very high. Please see below paragraph 15 of the decision: 
“15. The Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case (see, for example, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, para. 17).” 
Jadhav's spy status will come under discussion
Pakistan hasn’t failed to convince the ICJ that Jadhav is a spy/terrorist as this is something that will be considered only at the merits stage of the case.  
At this stage, ICJ wasn’t even looking to confirm whether the rights sought to be protected by India exist (i.e. consular access to an Indian citizen convicted of activities subversive to the national security of Pakistan). 
In fact, it only had to decide whether such rights are plausible enough to be adjudicated upon at the merits stage of the case. Please see below paragraph 42 of the decision:  “42. At this stage of the proceedings, the Court is not called upon to determine definitively whether the rights which India wishes to see protected exist; it need only decide whether these rights are plausible (see above paragraph 35 and Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, para. 64)."
ICJ yet to decide on consular access for Jadhav
ICJ has not determined as yet whether consular access must be granted to someone in Jadhav’s position. Pakistan has not even had the opportunity to plead the arguments in this respect and again this is something to be debated at the merits stage of the case. Please see below paragraph 43 of the decision:
“43. The rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform without delay the person concerned of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention. Regarding Pakistan’s arguments that, first, Article 36 of the Vienna Convention does not apply to persons suspected of espionage or terrorism, and that, second, the rules applicable to the case at hand are provided in the 2008 Agreement, the Court considers that at this stage of the proceedings, where no legal analysis on these questions has been advanced by the Parties, these arguments do not provide a sufficient basis to exclude the plausibility of the rights claimed by India, for the same reasons provided above.
 
The author is an International lawyer and former Executive Director of the Research Society of International Law (RSIL) Pakistan

Things you should know about ICJs decision on Jadhav

ICJ only had to decide whether such rights are plausible enough to be adjudicated upon at the merits stage of the case

The International Court of Justice (ICJ) announced its decision in relation to Indias Request for the Indication of Provisional Measures in connection with Kulbhushan Jadhavs case (the decision) on May 18, 2017. The 15 page decision has been met with strong reactions in both countries. Unfortunately, the debate on electronic media has been led by journalists, lawyers and politicians unfamiliar with the concepts of international law and the actual decision itself. Therefore, it is important to highlight some key points: India didnt win, Pakistan didnt fail India didnt win the case. Pakistan didnt fail. The decision only relates to Indias request for provisional measures (which, by the way, doesnt even include a request for granting consular access to Jadhav). At this stage, it was easier and more likely for the ICJ to favour the Indian request as the threshold for assuming jurisdiction was not very high. Please see below paragraph 15 of the decision: 15. The Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case (see, for example, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, para. 17). Jadhavs spy status will come under discussion Pakistan hasnt failed to convince the ICJ that Jadhav is a spy/terrorist as this is something that will be considered only at the merits stage of the case. At this stage, ICJ wasnt even looking to confirm whether the rights sought to be protected by India exist (i.e. consular access to an Indian citizen convicted of activities subversive to the national security of Pakistan). In fact, it only had to decide whether such rights are plausible enough to be adjudicated upon at the merits stage of the case. Please see below paragraph 42 of the decision: 42. At this stage of the proceedings, the Court is not called upon to determine definitively whether the rights which India wishes to see protected exist; it need only decide whether these rights are plausible (see above paragraph 35 and Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, para. 64). ICJ yet to decide on consular access for Jadhav ICJ has not determined as yet whether consular access must be granted to someone in Jadhavs position. Pakistan has not even had the opportunity to plead the arguments in this respect and again this is something to be debated at the merits stage of the case. Please see below paragraph 43 of the decision: 43. The rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform without delay the person concerned of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention. Regarding Pakistans arguments that, first, Article 36 of the Vienna Convention does not apply to persons suspected of espionage or terrorism, and that, second, the rules applicable to the case at hand are provided in the 2008 Agreement, the Court considers that at this stage of the proceedings, where no legal analysis on these questions has been advanced by the Parties, these arguments do not provide a sufficient basis to exclude the plausibility of the rights claimed by India, for the same reasons provided above. The author is an International lawyer and former Executive Director of the Research Society of International Law (RSIL) Pakistan