A Legal Analysis: Kulbhushan Jadhav And The ICJ

The International Court of Justice in giving relief to Kulbhushan Jadhav and his family. This vexed question of fact and law has engaged the attention of many students of law and legal practitioners and now it is increasingly felt in India that the effectiveness of ICJ is highly critical for global peace and progress in the 21st Century.

Established under the UN Charter, the court is governed by the Charter, the statute of the ICJ and the Rules of procedure adopted by the Judges and amended from time to time, as well as the Practice Directions adopted in October 2001

Under the United Nations regime, the ICJ was otherwise known as the ‘world court’  is the “Principal Judicial Organ” charged with two primary functions, namely, to assist in the resolution of disputes between states and to provide the advisory opinion to specified international originations.

In terms of Article 93 of the UN Charter, all members of the United Nations are automatically parties to the court’s statute. Non-Un members can also become parties to the court’s statutes under article 93(2) of the Charter. Once a state is a party to the court’s statute it is entitled to participate in cases before the court. As per Article 38 of the ICJ statute while deciding cases the court needs to apply international conventions, international Custom and the general principles of law recognized by civilized nations. It also refers to academic writings i.e the teachings of most highly qualified publicists of the various nations and previous judicial decisions, which though not binding, have great persuasive value.

On 14.04.1978 the ICJ, to streamline its functioning and having regard to chapter XIV of the charter of the united nations, and further having regard to the statute of the court annexed to the said charter and exercising powers in terms of Article 30 of the said statute has framed exhaustive Rules of Court (1978) laying down the procedure to invoke the jurisdiction of the ICJ.  Section D sub-section 1 of these Rules deal with interim protection proceedings. Article 73 and 74 of the 1978 Rules of Court provide as under:-

 Article 73…

“1.     A written request for the indication of provisional measures may be made by a party at any time during the course of the proceedings in the case in connection with which the request is made.
2. The request shall specify the reasons, therefore, the possible consequences if it is not granted, and the measures requested. A certified copy shall forthwith be transmitted by the Registrar to the other party.

Article 74…

1. A request for the indication of provisional measures shall have priority over all other cases.

  1. The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency.
    3. The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it. The Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings.
  2. Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.

Kulbhushan Jadhav Case At International Court Of Justice Is Not A Matter Of Life And Death

The impact of an ICJ decision can have far-reaching consequences on treaties.

The Kulbushan Jadhav case is not just a matter of life and death. It has wider ramifications regarding inter-state relations and the potential for better relations between neighbours. There are also significant legal consequences and policy implications of a decision of the International Court of Justice (ICJ).

On May 8, 2017, India initiated proceedings before the ICJ, against the Islamic Republic of Pakistan in the case of the arrest, detention, and sentencing of Jadhav. The facts in dispute are that Pakistan alleges an Indian national was found spying in the restive area of Balochistan, and as a result arrested and taken into Pakistani custody on March 3, 2016. India refutes this, alleging instead that Jadhav (a retired naval officer) was abducted from Iran where he had legitimate business interests

Subsequently, Jadhav was tried for espionage and sabotage by a Pakistani military court, found guilty and sentenced to death. The refusal by the Pakistani authorities to grant consular access on multiple occasions, and the subsequent pronouncement of the death penalty on April 10, 2017, were the catalysts for India filing the application before the ICJ. India argues that Article 36 of the Vienna Convention on Consular Relations (VCCR) has been violated and that the jurisdiction of the ICJ emanates from Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes (‘Optional Protocol’).

 After oral hearings on May 15, 2017, the ICJ issued a unanimous order in favour of India, indicating provisional measures in its order of May 18, 2017 (PM Order). The PM Order was based on the fulfillment of a four-fold test: (a) prima facie establishment of jurisdiction of the court; (b) the plausibility of rights to be protected; (c) the link between the rights and the provisional measures requested; and (d) risk of irreparable prejudice and urgency.

As Per the PM Order, the ICJ reiterated its stance that provisional measure orders have “binding effect” and create international legal obligations for the party in question.

 This preliminary assessment for the indication of provisional measures is an interim step, and does not guarantee the same result in the subsequent stages of the case. The findings in relation to jurisdiction and the existence of rights are only for the purposes of provisional measures and may yet be overturned.

 Next Steps: Jurisdiction, merits and remedies

The issues that the ICJ will have to address next include the jurisdiction of the court, and subsequently, the violation of rights.

The jurisdiction of the court has been invoked on the basis of Article 1 of the Optional Protocol, due to a “dispute arising out of the interpretation or application of the Convention”, i.e. the dispute relating to the applicability of Article 36 of the VCCR. Pakistan opposes this on the basis that there is no dispute per the VCCR provisions, instead arguing the compulsory jurisdiction of the court per Article 36 (2) of the Statute of the ICJ is at issue here, which has been excluded for cases related to national security, as per the declaration entered by Pakistan on March 29, 2017. Another argument against jurisdiction relates to the 2008 bilateral agreement between India and Pakistan on consular relations, which purportedly modifies the VCCR to exclude cases on “…political or security grounds…”.

The question to be determined by the ICJ is whether a subsequent agreement between the parties can restrict the scope of the obligations of the VCCR to which both parties are signatories. In this regard, an analysis of the provisions of the 2008 agreement as well as Article 73(2) of the VCCR, which relates to other agreements “…confirming, supplementing, extending or amplifying…” the provisions of the VCCR, will be crucial.

If there is a finding for jurisdiction, the ICJ will then address substantive arguments pertaining to the violation of the treaty in question. If the basis of jurisdiction is restricted to the Optional Protocol, it is questionable whether the court will examine the content of violations of Article 14 of the International Covenant on Civil and Political Rights (ICCPR), alluded to by India in its prayer for relief.

Therefore, the court will likely not address the question of the imposition of the death penalty or whether the right to fair trial has been violated under the ICCPR. The court will likely restrict itself to the context and content of violations of Article 36 of the VCCR. Per this provision, however, the denial of the rights of communication and access to Jadhav by consular officials, as well as the inability to provide for legal representation, will be scrutinized.

The remedies sought by India include a suspension of the death sentence, restitution by declaring the sentence illegal under international law (including the ICCPR), directing Pakistan to annul the decision of the military court, failing which for the ICJ to declare the decision illegal, and to direct the release of Jadhav. However, taking into account past jurisprudence in the LaGrand case (Germany vs. US) and Avena case (Mexico vs. US), the extent to which the ICJ has gone is to order the state to ‘review and reconsider’ the decision. The manner in which this review is conducted is left to the discretion of the state. However, the review must be “effective”, and must include judicial review. Clemency proceedings have been held to be insufficient to satisfy the test.


Implications of the case

The submission of the Jadhav case to the ICJ has wider implications, beyond the international legal issues that are up for consideration. The choice of litigation and its consequences are all significant factors to take into account.

 

 

(i) International adjudication options

Invoking international law, and in particular, international adjudicatory mechanisms are part of the foreign policy calculus of states. Before initiating a case at the ‘world court’, this calculus ideally not only takes into account the chances of legal victory, but also relations with the opposing state, the issues at stake and, in this case, the individual at the center of the case.

In approaching the ICJ, India has signaled its intention to pursue the matter legally on the world stage. In fact, this is not the first time that these states have initiated proceedings before the ICJ, with Pakistan initiating proceedings in two out of the three cases. Two cases did not come to fruition, with withdrawal of the disputes in the Appeal relating to the jurisdiction of the ICAO Council (India vs. Pakistan), and the Trial of Pakistani Prisoners of War (Pakistan v. India). In the third case, Aerial Incident of August 10, 1999 (Pakistan v. India), the ICJ found a lack of jurisdiction of the court.

While approaching the ICJ is significant, it is relevant to inquire into whether there were any other viable legal options. Articles 2 and 3 of the Optional Protocol provide for the choice of an arbitral tribunal as well as a conciliation procedure, without prejudice to their ability to file a case before the ICJ. Given the urgency of the situation, it may be argued that such proceedings would not be the most efficient or appropriate fora. However, it must be noted that arbitral tribunals are empowered to pass interim orders of protection, as evidenced by the arbitration rules of the Permanent Court of Arbitration and the UNCITRAL arbitration rules. While delays in setting up the arbitral body may impede such orders, this is also beginning to be addressed by emergency powers for arbitrators. However, this is still a nascent development. Hence, it would seem that unless arbitration or conciliation were neglected to be considered, the deliberate choice of the ICJ could be linked to the assumption of expedited legal processes, including a quicker response for provisional measures.

(ii) Relationship between rights of states & individuals

The ICJ is the international adjudicatory body to resolve disputes between states. As such, breaches of international law obligations vis-à-vis respective states are brought before it. It is not set up to function as a human rights court, and individuals cannot approach the court. However, there is a growing acknowledgement and increasing importance given to engagement with substantive norms of human rights and humanitarian law, as related to the rights of states. This is a relatively recent phenomenon, commensurate to the evolution of international human rights law.

At the center of the current case is an individual whose rights may have been violated, on the basis of which the state claims a violation of its rights, thereby filing for redress. The appetite for greater engagement with individual rights is squarely addressed in Judge Cancado Trindades concurring opinion to the PM Order, terming this the ‘humanization’ of international law. If there is a specific category of cases in which the dichotomy between a focus of the rights of state versus the individual has the potential to be blurred, it is this category – cases pertaining to issues such as access to consular assistance and the death penalty. Judge Trindade draws on the jurisprudence of the Inter-American Court of Human Rights in its advisory ruling on consular access and due process during his presidency, which affirmed the interdependence between individual and state rights.

In fact, given the issues relating to consular access and the passage of a death sentence, it serves to bear that there will be considerable scrutiny of the relevant legal mechanisms within Pakistan. The interpretation of Article 36 (2) of the VCCR would require an examination of the laws of Pakistan, to assess the extent to which they give full effect to the VCCR. Furthermore, the case before the court relates to military justice and not regular courts. These factors may serve as impetus to settle the case through diplomatic means, rather than have domestic procedures subjected to international legal scrutiny.

Consequences: Interim orders, final decisions and treaty withdrawal

The question of compliance with the orders of the ICJ (interim as well as final) as well as the longer term impact on consular access are significant.

While the decisions of the ICJ have binding effect between the parties, the lack of enforcement is an oft-cited inadequacy of international law. Hence, states have flouted decisions of the court in the past, including in cases relating to the lack of consular access for the death penalty. In a few notorious instances, ICJ decisions granting provisional measures have been ignored, with executions going ahead in the Breard case (Paraguay v. U.S) and the LaGrand case (Germany v. U.S). This despite the LaGrand case emphasizing the binding obligations created due to the provisional measure order. Hence, granting provisional measures is not a guarantee of compliance. In this case, the risks of non-compliance with the PM Order would depend on factors such as internal pressures and relations between the states. Recent statements (made after the PM Order) indicate that Jadhav will not be executed pending clemency proceedings. It is unclear if, upon the exhaustion of clemency proceedings for which 150 days are provided, the PM Order would be adhered to, pending the resolution of the case. However, there is a significant value in abiding by decisions of the court, not least as this would indicate a greater adherence to the rule of law and better standing internationally.

Counter-intuitively, there are instances when states have won cases in international adjudication proceedings, and sometimes political and strategic reasons serve to place this victory on the back burner. An instance is the recent arbitral decision in favor of the Philippines, in its dispute with China over the South China Sea. The current President of the Philippines has relegated this legal win to the background in the pursuit of better relations. Clearly, while there are different issues and power equations at work, this is indicative of the role of other factors and priorities in how a final legal decision may be treated by the parties. The approach of a state party does not detract from the legal effect of the decision, but may weaken any subsequent claims based on its practice.

As a last point, the impact of an ICJ decision can have far reaching consequences on treaties. Scrutiny of the actions of the US arising from the Avena and Breard cases resulted eventually in the withdrawal of the US from the Optional Protocol of the VCCR in 2009. Per Avena, the decision of the ICJ would have an impact not just in regard to consular relations between the two states, but also for nationals of other third party states. Hence, the consequence of this case may impact the future of consular relations between the two countries, their adherence to treaties, as well as an impact on other cases of consular access.

 

CONCLUSION

In the case of Kulbhushan Jadhav the ICJ being prima facie satisfied about the merits of India’s case and the availability of its jurisdiction over the dispute has granted interim relief/provisional measures i.e. stay of execution of Kulbhushan Jadhav by invoking the provisions of the aforesaid articles. It is a matter of record that both India and Pakistan are signatories to the Vienna Convention on Consular Relations 1963 providing for consular assistance to their nationals who are facing
trial in other counties and unequivocally and compulsorily conferring jurisdiction in the ICJ.  Additionally, the doctrine of “pacta sunt servanda” which is a well recognized doctrine in international law requires that treaties entered into in good faith have to be carried out in good faith and any breach thereof amounts to violation of international law. Examined from this backdrop there is no manner of doubt that consular access to India has been denied even though it is well known
that military tribunals in Pakistan are opaque and operate in violation of national and international fair trial standards and fail to provide justice, truth and even proper remedies to undertrials.

No doubt in the present case in terms of Article 36 of the ICJ statute the court has jurisdiction which has been recognized as compulsory ipso facto and without special agreement. In almost identical fact-situation i.e. in the Lagr and case and in the case of Avena and other Mexican Nationals, the ICJ has exercised its jurisdiction, stayed the execution and directed review and retrial.  The case of Kulbhushan Jadhav is a test case for the ICJ to dispel the impression that international law is the vanishing point of jurisprudence.

About The Author:

This article is written by  Yokeshwari Manivel of Lloyd Law College, Noida.

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