ICJ on Kulbhushan Jadhav; Here’s Why Pakistan’s Arguments Don’t Add Up

If anything, Pakistan’s lawyers made it clear through their points that there is indeed a dispute between the parties over the interpretation and application of the Vienna Convention on Consular Relations.

At the May 15 hearing convened by the International Court of Justice (ICJ) to consider India’s request for interim relief in the Kulbhushan Jadhav case, Pakistan identified three problems with India’s request and called for its dismissal.

Pakistan’s lawyers argued that the court should not grant interim relief by way of “provisional measures” because:

1. there is no “urgency” in this case as the date on which Jadhav will be executed has not yet been fixed;
2. the ultimate relief sought by India, that is, a “reversal” of Jadhav’s conviction, is unavailable; and
3. the court lacks jurisdiction. In addition to their relevance for the indication of any provisional measures by the court, these arguments may be further developed by Pakistan over the course of the proceedings.

To recap briefly, India instituted proceedings against Pakistan on May 8, 2017, asserting that Pakistan violated its obligations under the 1963 Vienna Convention on Consular Relations (VCCR), in particular under Article 36, by refusing to allow consular access to Jadhav, following his arrest and trial in Pakistan.

India invoked the court’s jurisdiction under the VCCR Optional Protocol, to which both India and Pakistan are parties. Article 1 of the Optional Protocol states that “[d]isputes arising out of the interpretation or application of the [VCCR] shall lie within the compulsory jurisdiction of the International Court of Justice “. In addition to seeking relief from the court in the form of restitution in integrum, India also sought provisional measures to ensure that Jadhav is not executed before the ICJ delivers its final judgment in the case. The court held hearings on India’s request for provisional measures on May 15. India’s oral observations went along expected lines  – save, perhaps, its decision to not offer any evidence of Jadhav’s Indian nationality, such as his birth certificate.

It is important to distinguish the court’s involvement at this preliminary stage from an examination of the merits of the case. The court will not be issuing a final judgment in the case following this initial round of hearings. The court’s role at this stage is limited to considering whether the circumstances of the case require it to indicate “provisional measures” for preserving the respective rights of either party while the court considers the merits of the case. According to sources, the court’s ruling on India’s demand for provisional measures will be given on May 18.

The ‘no urgency’ argument

Returning to the arguments, Pakistan asserted first that there is no “urgency” in this case. Since the date for Jadhav’s execution has not been fixed, Pakistan said provisional measures were unnecessary at this stage. It suggested that the court could schedule a hearing within six weeks and issue its judgment soon thereafter. In the meantime, it said that Jadhav would not be executed for at least 150 days as he has the right to seek clemency under Pakistan’s domestic law.

It remains to be seen whether the court will conduct the proceedings on an expedited basis, but Pakistan seemed to stop short of offering a unilateral assurance to the court that Jadhav would not be executed pending the final judgment. Had Pakistan offered such an assurance, it would, arguably, have obviated the need for any provisional measures to be indicated by the court.

On the issue of “urgency,” the court in the Avena case (Mexico v. USA) observed that the fact that the date for execution has not been fixed “is not per se a circumstance that should preclude the court from indicating provisional measures” (para 54). The court reached this conclusion in “view of the rules and time-limits governing the granting of clemency and the fixing of execution dates in a number of the states of the United States”. Applying this logic, the fact that the date for Jadhav’s execution is not yet fixed as he is guaranteed a right to seek clemency in a time-bound manner under Pakistan’s domestic law does not, without more, seem to preclude provisional measures in this case.

The ‘no power to reverse conviction’ argument

Pakistan’s second argument was that, since the ultimate relief sought by India – that is, a reversal of Jadhav’s conviction – is unavailable, provisional measures cannot be ordered.

To be clear, India, in its application, sought relief in the form of restitution in integrum, or restoration to original condition (para 60(2)). The Indian application does, in fact, repeatedly request that Jadhav’s conviction and sentence be set aside and he be released. This may be seen as one of the suggestions through which, to borrow India’s language, the court could “mould the [restitutive] relief to the facts of the present case” (para. 59).

In Paraguay v. USA, the court appeared to acknowledge that the unavailability of the ultimate relief sought by an applicant does not prevent it from indicating provisional measures. In that case, Paraguay argued that, as a result of the violation of Article 36 of the VCCR by the US, the criminal conviction of Angel Francisco Breard, a Paraguayan national, should be recognised as “void” by US legal authorities. The US objected that the relief sought by Paraguay was unavailable under the VCCR. The court, in its order indicating provisional measures, noted that there was “a dispute as to whether the relief sought by Paraguay is a remedy available under the Vienna Convention, in particular in relation to Articles 5 and 36 thereof” (para 31), but concluded that “the existence of the relief sought by Paraguay under the convention can only be determined at the stage of the merits” (para 33).

The question of what remedies may eventually be awarded by the court in a case of this kind raises many interesting issues.

Historically, when dealing with cases concerning denial of consular access, the court has limited itself to ordering a “review and reconsideration of the conviction and sentence” by the respondent state, taking into account the violation of the rights under the VCCR. The precise choice of the means for such “review and reconsideration” has generally been left to the discretion of the respondent state. Importantly, however, all of these cases have involved the US as the respondent state and the court’s remedy may therefore have been influenced by the possibility of such a “review and reconsideration” under US domestic law.

It can be questioned whether the same remedy would be appropriate in light of Pakistan’s domestic legal system. In Avena, for instance, the US argued that the clemency process under US law provided the opportunity to “review and reconsider” the convictions and sentences of certain Mexican nationals. The court, however, held that the judicial process is best suited to the task of “review and reconsideration,” and the executive clemency process, as practiced within the US criminal justice system is not, by itself, an appropriate means of “review and reconsideration”.

This highlights the need for India to fully understand the domestic legal process in Pakistan because the court may look at what could constitute an appropriate means for “review and reconsideration” under Pakistan’s domestic legal system. Interesting as these issues are, however, the question of whether the relief sought by India is available under the VCCR is, as noted above, an issue that properly belongs to the merits-phase of the proceedings and does not seem to preclude provisional measures at this stage.

The argument that the ICJ ‘lacks jurisdiction’

Finally, Pakistan objected to the court’s jurisdiction on three grounds, acknowledging all along that a prima facie basis for jurisdiction is all that is needed at the provisional measures stage. First, Pakistan pointed to the reservations contained in the parties’ declarations accepting the court’s compulsory jurisdiction under Article 36(2) of the ICJ Statute (the so-called “optional clause”). Pakistan considered these reservations “relevant” because they evidenced India’s intent to exclude any cases with Pakistan and Pakistan’s intention to exclude national security cases from being decided by the ICJ.

As I have explained elsewhere, the reservations to the court’s compulsory jurisdiction under the optional clause do not extend to jurisdiction that is conferred upon the court through other mechanisms, such as Article 1 of the VCCR Optional Protocol. In the 1972 ICAO Council case between India and Pakistan, the court acknowledged that optional clause declarations accepting the court’s compulsory jurisdiction, and any reservations thereto, cannot modify the terms under which jurisdiction may have been agreed upon in an earlier treaty.

As its second jurisdictional objection, Pakistan contended that the VCCR does not apply to cases of spying, espionage and the like. This argument relates to the proper interpretation of Article 36 of the VCCR so as to determine whether the scope of the provision is limited in the way suggested by Pakistan. Given the parties’ dispute over the interpretation of Article 36, it is therefore an issue for the merits-phase and does little to challenge the court’s jurisdiction at the provisional measures stage.

Can a bilateral agreement restrict the scope of an international treaty?

Finally, Pakistan relied on a bilateral agreement on consular access between India and Pakistan, concluded in 2008. According to Pakistan, the 2008 agreement allows the parties to examine every case of arrest, detention, or sentence made on political or security grounds on its merits. In other words, Pakistan contends that the obligation to provide consular access under the VCCR does not extend to cases involving political or security concerns, which are excluded by virtue of the 2008 agreement and are to be assessed on a case-by-case basis. Given that Jadhav’s case implicates national security concerns, Pakistan suggests that it was following the 2008 agreement in not granting consular access to Jadhav. Essentially, the argument appears to be that the rights available under the VCCR are taken away by the subsequent bilateral agreement concluded between the parties.

The effect that the 2008 agreement has on the two states’ obligations under the VCCR could well turn out to be an important issue for the merits of the case. Instead of undermining the court’s jurisdiction, the 2008 agreement, at this stage, reinforces it by highlighting how the dispute between the parties relates to the interpretation of the VCCR. Specifically, the first question that arises is whether the text of the VCCR allows state parties to diverge from their obligations under the Vienna Convention by concluding subsequent bilateral agreements. Indeed, insofar as the older treaty text precludes any future derogation through subsequent agreements, the 2008 agreement cannot have the effect of “overriding” the VCCR. This question relates to the interpretation of Article 73(2) of the VCCR, which sets out the relevant rule to be applied in cases of “conflicts” between the VCCR and other treaties. Article 73(2) states that states are not precluded from concluding international agreements “confirming or supplementing or extending or amplifying” the provisions of the VCCR.

The interpretative question here is whether Article 73(2) permits and gives priority only to later treaties that confirm, supplement, extend or amplify the provisions of the VCCR, that is, provide more favourable treatment than that provided under the convention, or does it also give priority to later treaties that derogate from the provisions of the VCCR (and offer less favourable treatment). Far from challenging the court’s jurisdiction, the 2008 agreement thus appears to confirm the existence of a dispute between the parties as to the interpretation of the VCCR, which would fall within the court’s jurisdiction under Article 1 of the VCCR Optional Protocol.

Registration with the UN, a red herring

As an aside, India has suggested that Pakistan cannot invoke the 2008 agreement before the ICJ as it is not registered with the UN Secretariat, in accordance with Article 102 of the UN Charter. The registration requirement in Article 102, however, is not a condition for the validity of a treaty under international law. A treaty does not become any less “binding” on its parties because it is not registered in accordance with Article 102. Article 102 should therefore not be seen as imposing too onerous a requirement. Registration is possible at any stage, howsoever late, and the omission to register can be cured even during the course of the proceedings. Going forward, Pakistan could register the 2008 agreement and invoke it before the court.

In sum, instead of questioning the court’s jurisdiction, many of the points raised by Pakistan, including its arguments relating to the scope of Article 36 and the effect of the 2008 bilateral agreement, highlight the dispute between the parties concerning the interpretation and application of the VCCR, over which the court has compulsory jurisdiction by the express terms of Article 1 of the VCCR Optional Protocol.

The court may have to address many of these issues if and when it moves to a consideration of the merits of the case. For now, if the court thinks that provisional measures are warranted, it could prevent Pakistan from executing Jadhav until it delivers its final judgment.

Shashank Kumar is a Geneva-based public international lawyer. He previously served as a law-clerk at the ICJ and legal adviser at the Iran-US Claims Tribunal. The views expressed in this article are personal.