Provisional Measures and the Jadhav Case

Abstract

The Jadhav Case is an interesting case which, besides adding to a discernible frequency of provisional measures disputes in international litigation, brings to the fore at least two aspects of particular importance: the evolution of the jurisprudence of the International Court of Justice (ICJ/Court) on the prerequisites for its indication of provisional measures and a noticeable break from the past in India’s well-known attitude to adjudication of its disputes by the Court, particularly its disputes with Pakistan. This is not to underestimate the significance of human rights considerations that underlie the case. India’s approaching the Court in this case seems to be an act of pragmatism dictated by domestic considerations rather than a general change in its attitude to adjudication of its disputes by the Court. Thus, nothing contrary to international law or jurisdictional bases of the Court may be inferred for or against India from its approaching the Court in this case. While the real motives behind India’s Application may have been quite different, this is undoubtedly a positive development in international law, much of whose preoccupation critically remains the peaceful settlement of disputes, as a corollary to the jus cogens nature of its prohibition of the threat or use of force in international relations. This is even more important when seen in light of the fact that both India and Pakistan are declared nuclear weapons states with only India having a declared ‘no-first-use’ policy.

Keywords

• provisional measures
• prima facie jurisdiction
• preservation of rights
• urgency