Bharat H Desai
Professor of International Law, JNU
In a final closure of the Kulbhushan Jadhav case, the International Court of Justice (ICJ) has ruled in favour of India on merits, affirming Jadhav’s right to consular access and notification. Judge Abdulqawi Ahmed Yusuf, president of the ICJ, delivered the 15-1 verdict on July 17. Pakistan’s ad hoc Judge TH Jillani dissented as is normally the case for a judge to favour the position of the country of nationality.
As expected, the ICJ directed Pakistan to provide an ‘effective review and reconsideration’ of Jadhav’s conviction and sentences. As a corollary, the court ordered “continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence.”
Upholding India’s main assertion in the petition filed on May 8, 2017, the court observed that neither Article 36 nor any other provision of the 1963 Vienna Convention on Consular Relations (VCCR) contains a reference to cases of espionage. Hence, the court held that the Vienna Convention is applicable in the present case rather than 2008 India-Pakistan Agreement on Consular Access (registered on May 17, 2017), regardless of the allegations that Jadhav was engaged in espionage activities. The ICJ took the view that “there is nothing in the language of the 2008 Agreement which would suggest that India or Pakistan ever intended to derogate from Article 36 of the Vienna Convention.”
“The Court has, however, rejected most of the remedies sought by India, including annulment of military court decision convicting Jadhav, his release and safe passage to India,” tweeted Reema Omer, International Legal Advisor, South Asia, for the ICJ. As the principal judicial organ of the United Nations, the ICJ was expected to uphold the fundamental tenet of International Law, namely, the right of a sovereign state to provide ‘consular access’ to a citizen, irrespective of charges.
India had deftly sought to tap the legal remedy available under Article 36 (1) of the ICJ Statute and Article 1 of the Optional Protocol to the VCCR. As on February 21, 2019, the VCCR and Protocol had 179 and 51 parties, respectively. It includes both India and Pakistan. The ICJ has emphatically opined that Article 1 of the Protocol provides a precise and categorical provision “establishing the compulsory jurisdiction of the Court in respect of disputes arising out of the interpretation or application of the Vienna Convention.” Thus, the Jadhav case represents a trend in which a state party seeks to raise issue of breach of a specific treaty obligation by another state.
The Indian petition, by referring to Article 74 (4) of the Rules of Court, asked the court to indicate forthwith provisional measures proprio motu. The court had already pointed out in the 1998 Breard case that it is an established rule to order interim measures in cases where there is a possibility of “irreparable prejudice…to rights which are the subject of dispute.” Thus, then ICJ president Ronny Abraham issued an order on May 9, 2017, asking the Pakistani Prime Minister to “act in such a way so as to enable the court to enforce any decision it takes on the Indian plea.” Hence, the court indicated ‘provisional measures’ on May 18, 2017, till the final decision in the matter.
Taking a remarkable view on the merits of the case, the ICJ has opined that Pakistan is under “obligation to cease internationally wrongful acts of a continuing character.” It found that Pakistan acted in a breach of its obligations under Article 36 paragraph 1 (a), (b) and (c), of the Vienna Convention, (i) by not informing Jadhav of his rights (ii) by not informing India, without delay, of the arrest and detention of Jadhav; and (iii) by denying access to Jadhav by consular officers of India. The court considered that the breaches constitute ‘internationally wrongful acts of a continuing character’. Accordingly, the court took the view that Pakistan is under an obligation to cease those acts and to comply fully with its obligations under Article 36.
The court recalled that its jurisdiction has its basis in Article I of the Optional Protocol. This jurisdiction is limited to the interpretation or application of the Vienna Convention and does not extend to India’s claims based on any other rules of international law, such as the International Covenant on Civil and Political Rights (ICCPR). As decided in the Avena case of Mexican nationals, the court considered that it is not the conviction and sentence of Jadhav which are to be regarded as a violation of the provisions of the Vienna Convention.
Though the court reaffirmed a rule laid down in a 1928 case that “it is a principle of International Law…that any breach of an engagement involves an obligation to make reparation” and that “reparation must, as far as possible, wipe out all the consequences of the illegal act.” But consistent with the approach taken by the court in the La Grand (2001) and Avena (2004) cases, for violations of Article 36 of the Vienna Convention, it felt that ‘appropriate reparation’ in this case will be “effective review and reconsideration of the conviction and sentence of Mr Jadhav.” In an order to ensure that the ‘choice of means’ left to Pakistan is not abused, the court asked Pakistan to “take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.”
Majesty of international law
India had sought to uphold the majesty of international law for a peaceful settlement of dispute with Pakistan. In the petition, India had contended ‘farcical trial’ by the military court and that Pakistan ‘knowingly, willfully and brazenly’ flouted the VCCR. It was a legal masterstroke that India could invoke the ICJ jurisdiction under the Optional Protocol to the VCCR since the bilateral dialogue process has been frozen.
India had relied upon the argument that the judicial review process available to Jadhav in Pakistan was ‘hopelessly insufficient’ and that the case was entirely based on a passport and an ‘extracted confession’. In a belated token gesture to preempt the legal case, Pakistan granted visa to Jadhav’s mother and wife to meet him on December 25, 2017. But no official of the Indian High Commission was allowed to be present.
The Jadhav case provides a refreshing instance of Indian support to a national facing a serious charge in another country. It is based upon one of the cardinal pillars of international law. India was forced to pursue this course since denial of consular access nullified the possibility of the due process and ‘exhaustion of local remedies’.
The case involved a breach of an international treaty obligation: the VCCR. As expected, it led to the ICJ’s opprobrium of Pakistan’s denial of consular access to Jadhav. The ruling is consistent with the ICJ’s recent jurisprudence in cases such as Breard, La Grand and Avena. The Jadhav case will become a milestone in ensuring that no bilateral agreement can be used as pretext to derogate from the obligation in Article 36 of the Vienna Convention.
The decisions given by the ICJ are binding on the parties to the dispute. There are glaring cases of defiance in the past by countries such as the US (Nicaragua case) and Iran (Hostages case). Still, Pakistan can defy the ICJ only at its own peril and at the cost of damaging India-Pakistan relations. In a grim situation of the life of a national at stake, the Indian recourse to this international law remedy has brought about a glimmer of hope for Jadhav.
The case provides a robust message that it will work wonders if India takes the vital instrument of international law more seriously in the conduct of external affairs and, in turn, for the maintenance of international peace and security. The case will leave open the question: Did India handle the Jadhav case properly by engaging a domestic lawyer, instead of a professor of international law as is the established practice before the ICJ, to argue an international law case?