Anticipating Pakistan’s Arguments at the ICJ in Kulbhushan Jadhav’s Case

With the first hearing of Jadhav’s case set for May 15 at the Hague, there are three possible primary arguments that Pakistan can make.

On May 9, 2017, the president of the International Court of Justice requested the government of Pakistan under rule 74(4) of the court’s rules to “act in such a way as will enable any order the court may make on this request to have had its appropriate effects”, in relation to the pending execution of an Indian national Kulbhushan Jadhav.

This request was made following India’s petition before the court to institute proceedings against Pakistan and pass provisional measures to suspend the execution of Jadhav, who was captured, tried and sentenced to death by Pakistan on charges of espionage and terrorism.

India has grounds to move the ICJ because both India and Pakistan are parties to the Optional Protocol to Vienna Convention on Consular Relations (1963), Article I of which states:

Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.

While a lot has been said and written in a very short time regarding the strategic importance of a move to the ICJ and its immediate implications on Jadhav’s  life, it would be pertinent to look into the possibilities that may arise on May 15 – the first day of hearing in the matter – and more generally from India’s flight to The Hague.

Provisional measures

India’s application for the institution of proceedings was interestingly accompanied by a request for the grant of provisional measures, which was duly granted by the court. The application for provisional measures relied on the “egregious violations of the Vienna Convention on Consular Relations” through the delayed information regarding Jadhav’s incarceration and the subsequent lack of access to Jadhav, despite repeated requests.

The grant of such provisional measures, as much as it might help in staying the death sentence, does not however imply that ICJ has assumed final jurisdiction in the matter. Provisional measures by their very nature and in accordance with the precedent set by the court, can be granted without a conclusive finding on the jurisdiction of the court. The court passed similar provisional measures in the LaGrand case between Germany and the US when it (unsuccessfully) stayed the execution of Walter LaGrand till pendency of proceedings. In paragraph 13 of that order, the court specifically observed that on a request for the indication of provisional measures the court need not finally satisfy itself whether it has jurisdiction on the merits of the case but only to satisfy a prima facie basis for jurisdiction. Thus the grant of provisional measures and their potential continuation after the hearings on May 15 is not in any way prejudicial to the case of Pakistan in the future.

Questions of jurisdiction and merits

Going forward, the institution of proceedings would result in the filing of written submissions by both states before the court. The submissions of Pakistan could include objections to the jurisdiction as well as arguments against the merits of India’s claim.

With regard to the jurisdiction of the court, Pakistan could make three primary arguments.

Firstly it could argue that as per its declaration dated March 29, 2017 on the compulsory jurisdiction of the court; jurisdiction over claims essentially under the domestic jurisdiction of Pakistan is precluded.

This argument however overlooks the fact that India moved its application before the court under Article 36(1) of the ICJ Statute and not under Article 36(2). While Pakistan’s declaration may exclude jurisdiction over the present issue under Article 36(2) of the ICJ Statute, the same does not prohibit the exercise of jurisdiction under Article 36(1). An application under Article 36(1) grants jurisdiction to the court based on referral by a state or through specific provision for grant of jurisdiction under other treaties in force, in this case the Optional Protocol. By choosing to move under Article 36(1) India has effectively prevented Pakistan from raising objections to jurisdiction as provided for in its declarations under Article 36(2) of the ICJ Statute. However the same also limits the scope of India’s application and final relief that it may be able to seek.

Secondly, Pakistan could argue that the prayers preferred by India go beyond the scope of interpretation of the Vienna Convention on Consular Relations (VCCR) and essentially requires the ICJ to sit in appeal over the decision of its domestic court.

A similar argument was made by the US in the case concerning Avena and Other Mexican Nationals judgment, wherein it questioned Mexico’s prayer to vacate the conviction and sentence award to Avena and others nationals of Mexico. India has quite similarly argued in its second prayer, to declare the sentence awarded to Jadhav as being violative of the VCCR and international human rights law. It is unlikely that the VCCR provides for a finding into the legality of conviction and sentencing and as far as international human rights law is concerned, it is quite obviously out of the ambit of the limited jurisdiction granted to the ICJ through the Optional Protocol. However, the court could still find jurisdiction regarding access to, and correspondence with Jadhav, while holding that the reparations sought could be restricted at a later stage and that no separate basis of jurisdiction is required to claim remedies.

Thirdly, Pakistan may argue inadmissibility of the case on the basis that India seeks to apply a different and higher standard of compliance with the VCCR, than it itself adheres to, and that international law cannot impose a higher burden on any one party than the other – as was decided by the court’s predecessor, the Permanent Court of International Justice, in the case concerning the diversion of water from the Meuse.

The argument hinges purely on the production of proof of India’s non-compliance with the VCCR in the past – a proof that may be hard to present.

However, one piece of evidence may be the case of Jamal Mirza vs State, as cited in an earlier article on The Wire wherein the Delhi high court expressly refused to make a finding of procedural irregularity in light of the investigations agency’s non-compliance with Article 36(1) of the VCCR. The court relied on the lack of a domestic legislation enforcing the VCCR to escape the application of the convention. At the outset it is clarified that the court erred in making such a finding, as in the absence of any contrary domestic legislation, the court should have upheld the convict’s convention rights as was found by the Supreme Court in the Jolly George Verghese case. Nevertheless, the above instance of non-compliance may very well be rebutted citing the argument of the prosecution in that case, that their sending state (Bangladesh) had in fact not assisted the accused and thereafter no protest was issued from the Bangladesh.

Further, it may be argued that while the VCCR is a multilateral treaty, its obligations are bilateral in nature and only the injured state to that extent may raise an argument of non-compliance, that is, Bangladesh and not Pakistan. That is perhaps the reason why the ICJ refused to make a finding on Germany’s own practice of failing to provide consular access as exhibited by the US in their written submissions before the court in the LaGrand case.

Finally Pakistan may raise arguments against the merits of India’s claims. Two arguments may be made in this regard.

Pakistan could at the outset rely on the bilateral agreement between India and Pakistan on consular access. The said agreement provides that in situations where an arrest, detention or sentence is made for security or political reasons, the right to consular access may be examined as per the merits of the case.

India could respond to this by firstly arguing that the Agreement on Consular Access is not a bilateral treaty between the two states but merely a memorandum of cooperation, evident from conspicuous absence of its text from the secretariat of the UN, the repository of all treaties. Further it can be argued that the dispute brought before the court remains limited to the violation of the VCCR and therefore the court cannot look into the provisions of a bilateral agreement not brought before the court and jurisdiction upon which is not granted to it.

Pakistan could further rely on Article 36(2) of the VCCR which states that the rights provided for, under Article 36(1), shall be exercised in conformity with the laws and regulations of the receiving state, provided that such laws and regulations give full effect to the purposes of Article 36. The whole provision seems tautological for it provides restrictions on the exercise of rights under Article 36(1) through domestic laws and then requires domestic laws to be in accordance with Article 36. This tautology could very well be used to argue that the domestic laws of Pakistan preclude persons accused of espionage and terrorism from consular access.

However, two objections may be raised against this. Firstly, any distinction on the grant of rights to the arrested person under the VCCR based on the category of crime charged would allow states to prevent consular access to any foreign person through a mere creative characterisation of their acts. The right to consular access is a matter preceding any determination of guilt against a person and therefore, a mere charge of espionage or terrorism should not lead to the taking away of an internationally recognised right.

Secondly, even if such an exception were possible, it could not impede a state’s access to its citizen and could only prevent a citizen’s access to its state. The charge of espionage or terrorism in domestic courts is a charge against an individual and despite the overwhelming connection between a spy and its sending state, the state is not on trial for the same. Therefore, the rights of a state to have access to its citizen cannot be barred. So while in the extreme case that Pakistan could prohibit Jadhav’s access to the Indian consulate and without violating Article 36(1)(b) thereby prevent India from raising its right under diplomatic protection of its citizen, India could still stake a claim in its own right of access to Jadhav under Article 36(1)(c).

In light of the above, assuming that Pakistan has not executed Jadhav yet and that it remains committed to the international rule of law, India’s decision to knock on the ICJ’s doors seems sound in law, albeit surprising, in light of India’s historic hesitance about internationalising disputes with Pakistan. Whether this legal move results in achieving the final objective of saving Jadhav’s life is as yet uncertain.

Dhruv Sharma a Delhi based lawyer with an interest in public international law.

Note: The article has been edited to correct the first name of the subject of the LaGrand case. it is Walter LaGrand and not William LaGrand as earlier stated.