Oves Anwar, Director, RSIL
17th May, 2017
On Monday, both India
and Pakistan presented oral arguments on provisional measures before the ICJ in
the Jadhav Case (India v. Pakistan). The case has generated considerable debate
as well as much confusion. This is not surprising as, outside the small community
of international law experts, the workings of the ICJ often remain shrouded in
legal technicality and jargon. This article aims at making the case before the
ICJ more accessible to individuals outside the legal community (as well as to
some within it). This is by no means an exhaustive discussion on the facts and
legal precedents which surround the case but it will raise the most pertinent
issues needed to follow the case in the coming months and perhaps years.
The ICJ Proceedings:
Monday’s oral hearings
marked the first phase of proceedings in this case. The Court will now
pronounce an order regarding provisional measures. In essence, they can grant
India’s request for a ‘stay’ on the execution of Kulbushan Jadhav or deny such
a request on the basis that there is no urgency in the matter.
At the current phase of
proceedings, the Court will make a preliminary determination of its
jurisdiction to hear the case. After this stage, Pakistan, if it chooses to,
can more comprehensively challenge the Court’s jurisdiction through
‘preliminary objections’. This would mark the second phase of proceedings. At
the culmination of the preliminary objections phase, the Court will have to
make a conclusive determination of whether or not it has the jurisdiction to
hear the case. If the Court determines that it does have jurisdiction, then the
case will move on to the merits phase, otherwise, the case will be dismissed
for lack of jurisdiction. It is after the merits phase that a judgment would be
rendered by the Court. Each phase of proceedings may include both written
pleadings submitted to the Court as well as oral hearings.
What is the Jadhav Case
about?
The case before the ICJ
instituted by India is about an alleged violation of the Vienna Convention on
Consular Relation of 1963 (VCCR). The VCCR grants States certain reciprocal
rights and obligations regarding consular relations. A consul is generally a
part of the diplomatic mission of a State in another State. In addition to
promoting economic and commercial relations between the two countries, consular
officials also look to protect their State’s interests in the host State,
especially in relation to their citizens present in the host State. In this
regard, Article 36(1) of the VCCR grants consular officials the “right to visit
a national of the sending State who is in prison, custody or detention, to
converse and correspond with him and to arrange for his legal representation.”
It is this specific clause that India states Pakistan has violated by not
granting its consular officials access to Kulbushan Jadhav. What this
translates to is that the case in the ICJ is not about Jadhav’s innocence or
guilt, the ICJ has itself stated that it is not a Criminal Appellate Court
(Paraguay v USA), rather the case is only whether India had a right under the
VCCR and whether Pakistan violated it. It is important to note that the ICJ
cannot, under any circumstances, order the release of Jadhav, despite what
India may have prayed for in its application instituting proceedings before the
Court.
Jurisdiction of the
Court
Jurisdiction refers to
whether the Court has the authority or competence to actually hear the case and
render a judgment on it. In other words, is there some legal basis which
empowers the Court to be able to adjudicate on the particular matter brought
before it? The ICJ’s jurisdiction can be invoked on a number of bases. The
primary one is through the Courts ‘compulsory jurisdiction’ under Article 36(2)
of the ICJ Statute. Here States submit a ‘declaration’ accepting the Court’s
jurisdiction. Unlike ordinary courts of law in a country where individuals have
little choice but to accept jurisdiction, the ICJ requires states to
voluntarily submit themselves to the Court’s authority and allow the Court to settle
their dispute.
When submitting a
‘declaration’, States may limit the grounds on which a case is brought against
it. India has for several decades had a declaration that severely limited the
grounds that other countries could take it to the ICJ for. Some of these seem
specific to Pakistan and that is why contentious matters such as Kashmir or
Siachen have not been brought before the ICJ. Pakistan recently enhanced its
own declaration on 29th March, 2017 and is now, in large part, at
par with the Indian declaration. Under these declarations neither Pakistan nor
India would be able to bring a case such as Jadhav’s to the Court.
However, India did not
utilize the path provided in Article 36(2) to the ICJ Statute but rather that
found in Article 36(1) which refers to the Court’s jurisdiction in “…all
matters specially provided for in the Charter of the United Nations or in
treaties and conventions in force.” Through this India raises the Optional
Protocol to the VCCR which relates to the settlement of disputes arising out of
the Convention. Both Pakistan and India have ratified this Optional Protocol
which in Article 1 specifically states that, “Disputes arising out of the
interpretation and application of the Convention shall lie within the
compulsory jurisdiction of the International Court of Justice…” This is,
therefore, the legal basis upon which the Court can exercise its jurisdiction
and the limitations imposed by Pakistan’s declaration under Article 36(2) would
stand bypassed. This is not to say that Pakistan cannot challenge jurisdiction
on other grounds. There are significant arguments that can be made on the Court
lacking jurisdiction in the matter which will be discussed below.
Jurisdiction, however,
has differing standards and thresholds that need to be met at different stages
of the Court’s proceedings. The current stage of proceedings – provisional
measures – is instituted to prevent a continuing or imminent harm to the rights
of one party. Due to the urgency of such measures, the Court does not have
adequate time to assess its substantive jurisdiction comprehensively. It,
therefore, only requires the requesting party (India) to establish that the
Court has prima facie jurisdiction. This is a low threshold
and if a clear clause in a treaty grants the Court jurisdiction, the Court will
generally tend to accept jurisdiction at this stage.
If the Court accepts
India’s argument of prima facie jurisdiction, then after a
decision on the request for provisional measures, the Court will move on to the
merits phase. However, as noted above, before the merits phase, Pakistan will
have a chance to challenge the Courts substantive jurisdiction comprehensively
at the preliminary objections phase. It is here that Pakistan can outline in
detail its arguments for why the ICJ should decline to entertain India’s case.
The ICJ will then have to make a final determination of whether it does indeed
have jurisdiction in the case or not. If the ICJ determines that it does not
have jurisdiction then the case will be dismissed. Alternatively, if the Court
maintains that it does have substantive jurisdiction to hear the case, then the
proceedings will move on to the merits phase.
Bilateral Agreement of
2008
The case is certainly
not straightforward as numerous complicating factors arise. The foremost among
them is perhaps the fact that in 2008, as part of the Indo-Pak Composite
Dialogue, both countries entered into a Bilateral Agreement on Consular Access.
The agreement is aimed at “furthering the objective of humane treatment of
nationals of either country…”, and provides for concrete mechanisms for India
and Pakistan to inform each other when its citizens are arrested and to provide
them with consular access within three months.
The 2008 Agreement has
been relied upon by both nations over the past decade for exchanging lists of
nationals detained or imprisoned in each other’s countries. It is particularly
relevant in the case of fishermen that inadvertently enter each other’s
territorial waters. In fact, an India-Pakistan Joint Judicial Committee on
Prisoners established in January 2008, has used the mechanisms under the 2008
Agreement to ensure the exchange of prisoners, consular access, and humane
treatment on multiple occasions. The Agreement has also been re-affirmed on
multiple occasions by joint-statements of officials from both countries. This
includes a joint-statement by the Indian Minister of External Affairs, Mr. S.M.
Krishna and Pakistan’s Foreign Minister, Hina Rabbani Khar on September 8,
2012, as well as numerous joint-statements by the Joint Judicial Committee on
Prisoners.
What is particularly
relevant about the Agreement is clause (vi) in that it specifically states, “in
case of arrest, detention or sentence made on political or security grounds,
each side may examine the case on its merits”. This gives both Pakistan and
India a degree of discretion to deny consular access where the compulsions of
national security require it.
India is trying to
distance itself from this agreement on the grounds that it is not registered
with the United Nations. Article 102 of the UN Charter states that, “No party
to any such treaty or international agreement which has not been registered…
may invoke that treaty or agreement before any organ of the United Nations.”
The ICJ is an organ of the United Nations. Interestingly, however, the
requirement of registration is not time specific, nor does it mean that with
the commencement of proceedings in the case that Pakistan has forfeited its
chance to register the Agreement. Pakistan can, and probably should, register
the Agreement as soon as possible. In fact, in Qatar v. Bahrain, the ICJ did
not object to Qatar’s registration application to the UN Secretariat after the
proceedings had commenced. The Court went on to state, “Non-registration or
late registration, on the other hand, does not have any consequence for the
actual validity of the agreement, which remains no less binding upon the
parties.”
India also alleges that
the Bilateral Agreement contradicts the VCCR. The India claim is that the right
to consular access under the VCCR is absolute and cannot be limited under any
circumstances. This raises the question of why then did India enter into an
agreement voluntarily which supposedly curtails its rights. It is important to
note that the validity of the Bilateral Agreement may hinge on the wording of
the VCCR which does not prevent “…States from concluding international
agreements confirming or supplementing or extending or amplifying” the VCCR.
The Court will have to see whether the Agreement of 2008 confirms, supplements,
extends or amplifies the provisions of the VCCR. This issue is bound to raise a
number of interesting issues relating to the extent that a State can limit its
own rights, the status of treaties that come later in time, and the limits of
the overriding compulsions of national security over international rights. Here
another convention finalized in Vienna would be of utmost relevance – the
Vienna Convention on the Law of Treaties (VCLT). The VCLT serves as a tool for
the interpretation of international treaties and agreements. I will not go into
the details of the VCLT’s impact on the case as Taimur Malik and Muhammad Bilal
Ramzan have already presented an excellent analysis here.
The Bilateral Agreement
may also be fundamental to Pakistan’s case in demonstrating that no dispute
exists at all. For the ICJ to decide the case under the Optional Protocol to
the VCCR a dispute must exist as to the “interpretation and application of the
Convention.” Pakistan can argue that the Bilateral Agreement is clear evidence
of both Pakistan and India’s mutually agreed upon interpretation and
application of the VCCR. If this was not the case, then why would both
sovereign States put this understanding into writing in a legally binding
Agreement? If Pakistan can indeed demonstrate this to the satisfaction of the
Court, the Court will have to decline jurisdiction as no dispute between the
parties would exists, i.e. there would be nothing to adjudicate upon.
Status of Kulbushan
Jadhav
Another complicating
factor is the status of Kulbushan Jadhav. India’s claim that he retired from
the Navy and was now a businessman rings hollow when confronted with the fake
identity that Jadhav had assumed of Mubarak Hussain Patel, corroborated by a
passport found on him.
Furthermore, espionage
is not a matter with considerable precedence under International Law. It is a
reality of our times that espionage is conducted by almost all States today,
yet legally there is no substantive regulation provided for it in international
law outside the laws of armed conflict, also known as International
Humanitarian Law (IHL). Under IHL, rights of communication of spies can be
curbed due to the security risks they pose. By analogy, the same security risks
exist in times of peace, especially if the concerned spy is engaged in funding,
planning and supporting terrorism in a country. This is undoubtedly why
Pakistan insists on refusing consular access to Jadhav. Any access to him may
allow him to reveal the extent of information he has divulged to Pakistani
authorities, the Indian intelligence assets that have been compromised, the
assets that are still in play, etc. Apart from the direct national security
risk this would pose, such access may also compromise on-going investigations
into Jadhav’s network in Pakistan. Pakistan’s legal team at the ICJ will have
to convince the Court that Jadhav’s actions are not isolated events but rather
a manifestation of the overall Indian strategy to destabilize Balochistan as
evidenced by the public statements of its National Security Advisor, Ajit Doval
and other Indian officials.
What can India hope to
get from the ICJ?
Provisional measures
India has requested for
immediate provisional measures to put a ‘stay’ on the execution of Jadhav till
the case is finally decided by the Court. For this it will have to establish
the urgency of the case. In the Avena Case, Mexico sought provisional measures
staying the execution of 54 Mexican nationals on death row in the United
States. The ICJ only granted provisional measures for three of these
individuals as their execution was scheduled within six months. Since the
domestic proceedings in the Jadhav case have not ended as yet, it may be
difficult for India to demonstrate real urgency in the matter.
Final Judgement
In its application to
institute proceedings India has requested four forms of relief from the Court.
Firstly, the immediate suspension of the sentence awarded to the accused.
Secondly, a declaration that the sentence of the military court is violative of
International Law and the provision of the VCCR. Thirdly, restrain Pakistan
from executing the sentence and directing it to annul the decision. And
fourthly, if Pakistan is unable to annul the decision then the Court declare
the decision to be in violation of International Law and order the release of
Jadhav.
Unfortunately for India,
none of these different (and also quite similar) forms of relief are within the
Court’s purview to grant. The only issue the ICJ can make a determination on is
whether Pakistan violated its obligation to India under the VCCR. The VCCR does
not provide any grounds for the annulment of a decision of a domestic court.
Therefore, Jadhav’s trial or his sentence cannot be reversed by the Court. What
can be discussed is what would have happened had Jadhav been granted consular
access. Would Indian representatives have been able to provide better legal
counsel to strengthen Jadhav’s case before the Field General Court Martial?
Would access have led to a different verdict? In any decision the Court makes,
the Sovereign authority of Pakistan to deal with a terrorist and spy will have
to be weighed against any alleged violation of India’s rights under the VCCR.
Even if India is able to
convince the Court to decide in its favour, Jadhav cannot be ordered to be
released as that is outside the scope of powers of the ICJ. However, like the
Court’s decision in LaGrand and Avena, Pakistan may be asked to ‘review and
reconsider’ the Field General Court Martial proceedings with a view to
assessing whether the granting of consular access would have made a difference
to the outcome of the Jadhav case. In Avena, the court explained that ‘review
and reconsideration’ involved judicial review of the process and a
determination to be made whether the VCCR violation caused actual prejudice to
the defendant. Importantly, however, the ICJ noted that such a review was to be
conducted by the State “by a means of its own choosing…”, thus acknowledging
the sovereign authority of a State over its domestic criminal matters as well
as accepting the limited powers of the ICJ in such cases.
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