By 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?
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.
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.