By Haider Mehdi
It appears that somehow Kulbashan's signed letter to the Indian Government, seeking ICJ Intervention, reached India.
Having researched some more and consulted some legal minds. Here's what it looks like in summary.
1. ICJ Jurisdiction is only based on consent of both parties. The key principle is that the Court only has jurisdiction on the basis of consent. The court has no true compulsory jurisdiction.
2. Unless under another treaty, multilateral or bilateral, the two nations have accepted ICJ'S jurisdiction on a particular issue or those covered by the treaty. Don't know if Kulbashan's case falls under this clause!
3. India has moved their case on the basis of *"Diplomatic protection"*, explained below.
"........In international law, diplomatic protection (or diplomatic espousal) is a means for a State to take diplomatic and other action against another State on behalf of its national whose rights and interests have been injured by the other State. Diplomatic protection, which has been confirmed in different cases of the Permanent Court of International Justice and the International Court of Justice, is a discretionary right of a State and may take any form that is not prohibited by international law. It can include consular action, negotiations with the other State, political and economic pressure, judicial or arbitral proceedings or other forms of peaceful dispute settlement......"
The interesting thing is that Kulbashan had to give a signed undertaking to the Indian Government to take up his case at the ICJ.
He used the undermentioned rule to ask India to take up his case at the ICJ.
*"Exhaustion of local remedies*
*Diplomatic espousal of a national's claims will not be internationally acceptable unless the national in question has given the host state the chance to correct the wrong done to him through its own national remedies. Exhaustion of local remedies usually means that the individual must first pursue his claims against the host state through its national courts up to the highest level before he can ask the state of his nationality to take up those claims and that state can validly do so.*
The question is how did his signed undertaking reached Indian hands, when he had no access to any Indian consular services in Pakistan?
Some conspiracy theory questions?
Was this given to Jandal by Nawaz Sharif, who hand carried it back to India?
If so, who acquired it from Kulbashan and gave it to Nawaz Sharif?
Even more questions.