ICJ decides Kulbhushan Jadhav's fate today, but diplomacy still best bet

International Law is largely 'law without sanctions'. Diplomacy is likely to serve him better

The ‘Case Concerning the Vienna Convention on Consular Relations’ or the ‘Jadhav Case’ is the fourth instance of a dispute between India and Pakistan finding its way to the International Court of Justice. 

The ICJ will pronounce its verdict on the Kulbhushan Jadhav case on Thursday, just 10 days after India approached it demanding immediate suspension of the death sentence given to its former navy officer by a Pakistan military court.

Kulbhushan Singh Jadhav, an Indian Citizen, was sentenced to death by a military court in Pakistan on April 10, 2017. Pakistan claims that he “was arrested on March 3, 2016 through a Counter Intelligence Operation from Mashkel, Balochistan”. He is alleged to have been involved in ‘espionage and sabotage activities against Pakistan.’ Pakistan also claims that Jadhav had confessed that he had been tasked by RAW to impede efforts to stabilise Balochistan and Karachi.

India contends that Jadhav was abducted from Iran in 2016, and that his presence in Pakistan has not been explained credibly by the Pakistani government. Further, Pakistan has denied as many as 13 requests for consular access to Jadhav that were made between March, 2016 and March, 2017.

On April 10, following the death sentence, India issued a sharp demarche to the Pakistani High Commissioner. Subsequently, the India-Pak Joint Defence Committee for Prisoners (IPJDCP), a forum of lawyers from both the countries, also petitioned the Pakistan Supreme Court against the death sentence.

On May 8, a month after the announcement of the death penalty, India instituted proceedings at the ICJ. It alleged “egregious violations” of the Vienna Convention, specifically Article 36 thereof. India also filed a ‘Request for the Indication of Provisional Measures’, pursuant to Article 41 of the ICJ Statute and Articles 73, 74 and 75 of the Rules of Court. It was prayed that the Court issue directions to the Government of Pakistan to ensure that Jadhav is not executed, pending the Court's final decision.

The court has heard oral arguments (limited to the provisional measures) on short notice, on the 15th of May, by invoking Article 74 (which inter alia holds that a Request for the indication of provisional measures shall have priority over all other cases).

Legal Arguments for India were led by Mr. Harish Salve. India relied on the Vienna Convention and its Optional Protocol concerning Compulsory Settlement of Disputes as the basis for establishing the jurisdiction of the ICJ.

Many precedents were cited, in order to substantiate India’s claims regarding: 
 

i) principles for indication of provisional measures;

ii) prima facie case as to the jurisdiction of the Court to entertain India’s Application;

iii) prima facie case of violation of the Vienna Convention on Consular Relations, 1963; and

iv) nature of the provisional measures sought.

The Jadhav case from the bilateral agreement prism

Significantly, India also successfully pre-empted Pakistan’s argument that the provisions of a bilateral agreement entered into between the countries in 2008 would apply to the dispute. It argued that provisions of the bilateral treaty “were irrelevant to an assertion of rights of consular access under the Vienna Convention.”

Pakistan for its part relied largely on the bilateral agreement of 2008. 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. Pakistan thus argued that the Vienna Convention would have no application to the case. It further argued that the case was premature as domestic remedies available to Jadhav had not been exhausted.

The International Court has reserved orders after the hearing. It has, however, indicated that it will render its order “as soon as possible.”

What is the likely outcome at ICJ?

It is not for us to speculate on the order, but a number of situations may emerge in the near future.

For instance, President of the Court, Judge Abraham had issued an urgent communication to Pakistan, pursuant to the applications filed by India. This was widely reported in the Indian media as a ‘stay’ on Jadhav’s execution. Mrs Sushma Swaraj, the External Affairs Minister even referred to this Communication as an ‘order’ of the Court. That is however, inaccurate.

Urgent communications issued by the President under Article 74 (4) of the Rules of the ICJ are not binding. Pakistan can, even as of today execute Mr Jadhav without any legal ramifications in International Law. This would be without prejudice to the final decision regarding the violations of the Vienna Convention. Even more significantly, even if provisional measures are granted in India’s favour, Pakistan could arguably still go ahead with the execution of Kulbhushan Jadhav.

Indeed, none of the cases alleging a violation of the Vienna Convention have resulted in effective relief to the accused therein. In the last twenty years, three cases relating to violation of the Vienna Convention have been brought before the ICJ. All three have been against the US. All three have involved situations in which the detaining authorities failed to inform foreign nationals, convicted of crimes, about the right to consular access. In all three cases, executions were carried out, despite the rulings of the ICJ.

In the ‘Breard Case’ (Paraguay v United States), the Court had granted provisional measures in favour of Paraguay. However, despite the Court’s order, the execution was carried out. Paraguay discontinued the proceedings later and the Court was thus unable to deliver a final judgment.

The same happened in the ‘LeGrand Case’ (Germany v United States). However, this time, the ICJ in its Judgment found the United States guilty of violating the Convention as well as its orders. The case is significant because this was the first instance of the International Court holding that its interim orders were also binding.

In the ‘Avena Case’ (Mexico v. United States), provisional orders were once again passed directing the “review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention.” However, the United States Supreme Court held that the order of the ICJ was not binding unless Congress has enacted statutes implementing it or unless the treaty itself is "self-executing."

All three decisions referred to were rendered in cases where the United States was a party. These are legally distinguishable, as Pakistan does not follow the federal structure that the United States does. Significantly, all three decisions have been relied upon by India before the International Court.

India and Pakistan at the International Court

Jadhav is the fourth instance of an India-Pakistan dispute being heard by the International Court, but is the first time that a hearing has taken place under the glare of the press and social media and ensuing public scrutiny. There have been many reports (both correct and incorrect) appearing in the press and social media of both countries.

One may reasonably expect that the Court will pass an order on provisional measures. Based on precedent, the same may well be in India’s favour. One must congratulate the government for acting decisively and taking the case to the ICJ without wasting any time. An order on provisional measures, however, will only be the beginning of a longer journey which will entail long drawn proceedings on the merits of the case.

Whatever be the ultimate outcome of the case, effective relief for Jadhav, is more likely to be secured through diplomatic negotiations and through domestic processes. The ICJ proceedings are at best, a legal forum for declarations of legitimacy. One must remember that international law, is still largely “a law without sanctions”.

The authors are lawyers who practise in the Supreme Court