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Later today, the International Court of Justice (ICJ) will pronounce its verdict in the Kulbhushan Jadhav case between India and Pakistan.
Kulbhushan Jadhav, an Indian national, was sentenced to death over allegations of espionage and terrorism by a military court in Pakistan. India approached the ICJ in May 2017, seeking grant of provisional measures. Soon after, the ICJ granted India’s request for provisional measures and effectively stayed Jadhav’s execution.
Over the course of the hearings that took place in February this year, India accused Pakistan of violating Article 36 of the Vienna Convention on Consular Relations, 1963, in that the latter failed to grant consular access in Jadhav’s case. The ICJ reserved its verdict on February 21, after hearing both parties.
As the nation awaits the ICJ’s verdict in the Kulbhushan Jadhav case, International Law expert Priya Pillai discusses the finer points of the matter with Bar & Bench.
Has Pakistan breached Article 36 of the Vienna Convention on Consular Relations (VCCR), by denying India consular access to Kulbhushan Jadhav?
This is the argument that India is making, and prima facie, on the facts, it would seem that Pakistan has breached Article 36 of the VCCR by multiple denials of consular access, that are on the record. However, there is a step before this claim on merit that must be satisfied, and this is whether the court has jurisdiction at all. And so, the ICJ needs to first make the determination that it has jurisdiction and if it finds for India on
jurisdiction, only then will it examine the substantive claim under Article 36.
Pakistan has justified its actions by claiming in its memorial that a “prior illegal act has the consequence of negating any correlative obligation”. Your thoughts on this statement?
The application of the doctrine of ‘clean hands’ is not really relevant to this case. While it is an argument that has been made, the actual point of contention is whether there has been a violation of Article 36 of the VCCR – regardless of what is alleged to have occurred previously. Specifically, the argument that Jadhav entered on a different passport and for nefarious purposes, does little to dispel the notion that consular access should have been afforded. Furthermore, his nationality is not in dispute.
In his submissions before the ICJ, Senior Counsel Harish Salve referred to the Court’s interpretation of Article 36 in the Avena and LaGrand cases. Would the same interpretation apply in Jadhav’s case?
The LaGrand case (Germany vs. US) and the Avena case (Mexico vs. US) related to death-row inmates in the US. In both cases, the ICJ found that the rights of the individuals to consular access had not been respected and that the US had violated international law under the VCCR.
However, even with this finding of a violation, the extent of the decision of the ICJ was to order the state to ‘review and reconsider’ the decision in its domestic legal process. The type of review and how this is done is for the state in question to determine. The only consistent stipulation of the court has been that the review must be “effective”, including judicial review, and that the clemency proceedings would not satisfy the test for effective review.
The distinction here is that the case in Pakistan has been before a military tribunal, and whether the limited judicial review (per the case cited at the Pakistan Supreme Court) would fulfill the stipulations of it needing to be ‘effective’ is open to interpretation.
Is there any merit in Pakistan’s argument that the two States made an exception for granting consular access in cases of espionage after the VCCR was adopted? In this context, would the 2008 bilateral agreement between India and Pakistan come into play in this case?
An argument against the jurisdiction of the ICJ 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 court needs to determine whether a subsequent agreement between the parties
can restrict the scope of the obligations of the VCCR, to which both parties are signatories. On this point, 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.
The argument that a subsequent agreement, such as the bilateral agreement, can only modify the VCCR to the extent as described in Article 73(2), and as long as it does not defeat the object and purpose of the VCCR will be a key point for determination by the court. Also, the point of whether espionage would vitiate the requirements of the VCCR will be addressed.
India has argued that the Pakistan military court judgment that convicted Jadhav and sentenced him to death is bad in law, based on, among other grounds, that it is empowered to try civilians for terrorism-related offences. What is the significance of this argument?
This is relevant to the extent that India is making the argument that fair trials and due process under Article 14 of the ICCPR is linked to access to consular assistance per the VCCR, and that violations of both these instruments require a legal remedy.
The military court system is highlighted to indicate opacity and problematic due process – but again, it remains to be seen if the court will take this into consideration. This is however unlikely, as the court will focus on the alleged violation of the VCCR as the source of the dispute before the court, and the reason for its involvement.
How strong is India’s case for restitutio in integrum in the Kulbhushan Jadhav case?
Not very strong. A case such as this – based legally on lack of consular access – does not typically result in the remedies such as those requested by India. Other ICJ cases relating to consular access have not awarded restitutio in integrum, such as the Avena & LaGrand. The maximum the court has awarded has been an order to ‘review and reconsider’ the decision of the domestic court, even when they found in favour of the applicant.
However, the distinction between the previous cases cited and the current case is the legal system in question – that of regular criminal proceedings as opposed to military courts. Whether this makes an impact on the remedy though remains to be seen.
In the event that the ICJ decides not to direct Pakistan to release Jadhav, India has asked for a trial in strict conformity with the provisions of the ICCPR. How would such a trial be conducted?
India has little say in the matter. At the end of the day, the legal violation on the basis of which this dispute has arisen before the ICJ relates to the lack of consular access, and not on a violation of the ICCPR. Therefore, the most that the court can do is to ask the state to review the manner in which the proceedings were held.
The ICJ itself will not review the legal proceedings of a state and will not function as a court of appeal as it
were. It is also extremely unlikely that in such a situation a state would in effect admit its legal proceedings were in breach of international law.
What lies ahead for both States, in the event that the verdict goes against them?
This case does not really have a winner. Unpopular as this view may be, let me tell you why I think this.
Here are the likely scenarios – the best-case scenario for India is that it ‘wins’ the case – but what does this mean? This means that the court would find that it has jurisdiction, and that on the merits of the case, it finds that Pakistan has violated the Vienna Convention on Consular Relations. But even if this happens, what is the remedy? The maximum that the court usually would order is that Pakistan reviews what has happened in its domestic legal proceedings. But it is extremely unlikely that the court will order the release of Jadhav, even if it finds for India. So, even a legal win for India will likely not see his release in the near future – and this would still be best attempted via diplomatic means.
The alternate scenario is that the court finds that either there is no jurisdiction over the case (this is unlikely, I think), or that it finds on merits that Pakistan has not violated the VCCR. In which case, things are right back to where they were when this case started, with Jadhav on death row – unless, with the interest the case has generated, the Pakistan government decides not to raise the stakes further by proceeding with an
Either scenario, continuing with the execution would not serve India or Pakistan well, and would only serve to escalate tensions – which is something really should be avoided, with both states making concerted efforts to reduce.
In the unlikely event that one of the States does not abide by the Court’s decision, what action can be taken against them?
The lack of enforcement is one of the main weaknesses of international law and the international legal system. However, per the analysis above, there is little likelihood of non-observance of the decision of the court – the Provisional Measure order issued in 2017 in India’s favour has been complied with by Pakistan, by not going ahead with the execution.
If the court rules now that there has been a breach of the VCCR, then the remedy ordered by the court will be crucial to assess compliance – if it is the ‘review and reconsider’ standard, then this is very much within Pakistan’s remit, and it would be next to impossible to determine that such an order has not been complied with. So overall, the question of compliance here is not very significant.
Priya Pillai is an international lawyer, with expertise in international justice and humanitarian issues. She has worked at the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Federation of Red Cross and Red Crescent Societies (IFRC) in Geneva, and with various national institutions. She holds a PhD from the Graduate Institute, Geneva; an LL.M from NYU; and a B.A.LL.B. (Hons.) degree from NLSIU, Bangalore. She can be reached on twitter @PillaiPriy.