After a few polarising days of utmost hostility between India and Pakistan arising out of the Pulwama attack, the two countries are set to confront each other again - this time in the courtroom at The Hague. As we speak, Pakistan and India are fighting a fierce battle of arguments on the stage of the International Court of Justice (ICJ) over the conviction of Indian national and alleged espionage agent, Kulbhushan Jadhav.

Although India was the one who filed the application in the Court, that too by skipping over the Optional Protocol’s suggestions of alternate dispute mechanisms, this time Pakistan is the actor alleging terrorism and espionage on part of India. It is ironic that beside the utter madness of lawlessness that has prevailed in the Pulwama attack, Pakistan’s suspected role in it and India’s treatment of Kashmiri citizens subsequent, the second conflict the two sides are going through is being fought entirely at the mercy of the law in the World Court.

In the months precluding the Kulbhushan case, it seemed like once again, this affair could serve as a stick for India to beat Pakistan with. The facts of the case on the surface make Pakistan look guilty- India alleges that Pakistan has violated the Vienna Convention on Consular Relations (VCCR) 1963 by not granting India consular access to Commander Kulbhushan Jadhav, a member of the Indian Navy, during his arrest, interrogation and trial, as mandated by international law. There does seem a prima facie case of violation of consular access- Pakistan indeed did not grant it. India’s appealing to the International Court, rather than following through on other mechanisms of dispute resolution as encouraged by the Optional Protocol, made sense- the case looked to be an easy win for India, whose real objective for filing the very public case was to one-up and humiliate Pakistan at the international forum.

There was of course the slight issue of espionage that could be a thorn in India’s side. Pakistan is alleging that Kulbhushan Jadhav was an espionage agent recruited by the Indian Navy and that he had confessed to planning and executing terrorist activities to destabilise Pakistan. The charges ring glaringly true- Jadhav had been found in possession of a passport with a false identity- a passport India refuses to check for authenticity in its data registry. Yet the charges of espionage and terrorism, which de facto means a violation of UN Security Council Resolution 1373, are small deterrents for India- luckily for Jai Hind, the International Court of Justice is not a criminal appellate court, and there is little customary law which supports Pakistan’s assertion that espionage is an exception to the VCCR.

Thus, in the months leading up to the case, the odds seemed stacked in India’s favour. Due to legal technicalities which favour procedure and propriety, it seemed that India would get away with sending what was very obviously an espionage agent to Pakistan all while dirtying Pakistan’s hands in the process for not adhering to international law. In the Court, the game is one of legal principles not moral- a nation cannot simply violate multilateral conventions, no matter how strong the case of espionage and terrorism is.

India was winning in the court of public opinion- until the day of the first hearing when all the documents in this case were released by the ICJ. The documents included India’s Memorial, Pakistan’s Counter-Memorial, India’s Reply and Pakistan’s Rejoinder. Perusal of the official documents uncover a fact that has not been covered with depth in the media- a fact that could save Pakistan’s case.

What is the secret weapon? A bilateral agreement signed by India and Pakistan in 2008 specifically aimed to clarify the extent of consular access that could be granted in different situations. Clause (VI) of the Agreement allowed the two countries the leave to examine a case of “national security” on “its own merits”.

What does that mean? As pointed out by Pakistan, the VCCR passed in 1963 does not cater for cases of terrorism- which relating to the events of today is definitely insufficient. In the aftermath of 9/11 and the passing of UNSC Resolution 1373, international law has seen a massive shift in the way relations between States are conducted especially in security related issues. As our ideas of what war is and how it is carried out have drastically changed, so have international humanitarian law principles modified and adapted.

With Pakistan and India’s blood stained history, which includes four armed conflicts, it is not surprising that the two countries decided to execute a bilateral agreement in addition to the VCCR to elaborate on consular access for situations that the VCCR does not delineate on. If Pakistan can convince the International Court that it was acting in accordance with the Bilateral Agreement between the two countries, then it has good grounds to justify its lack of adherence to the VCCR. The best part is- the bilateral agreement was initiated by India itself.

There are certain technicalities which those of us that are not lawyers need to understand- consular access, according to the VCCR, does not need to be immediate. Case law states that consular access can be delayed but it should not be undue delay. Technically it is not like Pakistan utterly alienated India from Jadhav’s conviction process- Pakistan informed the P-5 countries, as well as India, of Jadhav’s arrest, repeatedly asked for India’s assistance and even allowed Jadhav’s mother and wife, along with the Indian Deputy High Commissioner, to visit Jadhav in Pakistan. Pakistan made it clear from the first Note Verbale exchanged between the two countries that it will provide consular access but the timing will depend upon India’s assistance in the investigation of the false-identity passport found in Jadhav’s possession. This is not an open and shut case of violation of consular access- India comes with unclean hands and the existence of a Bilateral Agreement is just the piece of additional evidence which can drive Pakistan’s case home.

It is thus astounding, with this new evidence, why the Pakistan media is not seizing upon the chance and highlighting the agreement more. Indian media is rife with coverage of the Jadhav case, which portrays India as all but won, but there is a strange silence on the Pakistani information side. This is puzzling considering the fact that if the Court sets aside the Bilateral Agreement, as India wants it to, there could be dangerous consequences for the future of any inter-state agreements between India and Pakistan.

Bilateral agreements are highly important in international law. India’s argument for declaring the Agreement irrelevant is that Clause (VI) does not amplify or supplement the provisions of the VCCR but modifies it. International law has different interpretations on it though- Article 30 of the Vienna Convention on the Law of Treaties states that successive bilateral treaties will prevail over preceding treaties. India claims Clause (VI) violates the VCCR but this, other than being a weak argument due to the loophole left in the VCCR, is also a consequential one for relations between the two countries if the Court follows through on it.

If the ICJ sets aside this bilateral agreement, it risks invalidating every agreement signed between India and Pakistan- indeed it risks invalidating every bilateral agreement signed. If a bilateral agreement, signed consensually between the two parties is set aside by the Court, it will shake the core of how we understand Inter-State treaties. Without getting too deep into the nitty-gritty of international law, there are two types of treaties envisioned in Article 41 of the VCLT- reciprocal and absolute treaties. Absolute treaties- like the International Covenant of Civil and Political Rights (ICCPR) cannot be reduced to a super position of bilateral relations which are malleable. Reciprocal treaties, on the other hand, are those in which States parties engage in a reciprocal way, and it is these treaties which are meant to provide mediums for States to further negotiate on the terms of relations between each other, as long as they loosely adhere to the principles of the treaty.

The past eighteen years, since 9/11, have seen a huge gap in international humanitarian law for the kind of security threats faced by certain countries now. The decision taken by the ICJ might lead to a breakthrough in the future of successive bilateral agreements created to supplement for the void in international law for the new brand of terrorism the world faces today, and can be game-changing for relations between India and Pakistan. It is a pity that so many in the media, and in the academic world, are taking this case as a mere instance of a consular access violation, rather than assessing the wide ranging consequences it can have on the sovereignty of Inter-State agreements and Indo-Pak relations.