India, Pakistan prepare to square off at ICJ over Kulbhushan Jadhav case

In a decisive move on May 8, 2017, the Republic of India took legal recourse to the International Court of Justice (ICJ) by instituting proceedings against the Islamic Republic of Pakistan for “egregious violations” of India’s rights under the Vienna Convention on Consular Relations, 1963 (VCCR).

India’s application to the ICJ arises out of a dispute in which the Pakistani military detained, tried and recently sentenced to death an Indian national whilst denying India consular access to him. This action is in breach of India’s rights, and Pakistan’s obligations, under the VCCR.

In addition to praying that the court direct the government of Pakistan to “annul the decision of the military court,” India has also filed a request for the “indication of provisional measures” from the court under Article 41 of the statute of the ICJ.

In light of the ICJ’s press release on the issue, it appears that the registrar of the court, who is in receipt of India’s application instituting proceedings against Pakistan, has already transmitted the application to Pakistan. Presumably, the judges have also entered the application into the court’s general list. In the days to come, the application will be duly registered, translated and printed in a bilingual (English and French) document which will be forwarded to the secretary-general of the United Nations and all states which are parties to the statute of the International Court of Justice. Since the court is currently not in session, the president of the court, Judge Ronny Abraham, will meet the ‘agents’ – the court’s term for the designated representatives – of both parties to the proceeding and issue an order fixing the time-limits within which written pleadings, containing adversarial statements of fact and law, are to be filed by India and Pakistan.

This phase is followed by oral proceedings where all the judges of the court will sit to hear oral arguments by the representatives, counsels, agents and/or advocates of the parties. Accordingly, the average duration of a case before the ICJ – from institution of proceedings to the delivery of the final judgement – is four years, but it may be noted that certain cases, such as the 1999 aerial incident case between India and Pakistan, have been decided within the period of a year. In all likelihood, the duration of this case will be longer as Pakistan, if it does not challenge the jurisdiction of the court, is likely to request the appointment of a ‘judge ad hoc.’ The temporary appointment of ad hoc judges is envisaged under article 31 (2) and (3) of the statute of the court – which allows a party to a proceeding not having a judge of its nationality on the bench to choose a person to sit as judge ad hoc. The presence of an Indian judge, Dalveer Bhandari, on the bench is likely to precipitate a Pakistani request for an ad hoc judge of its nationality. Such a request may delay the constitution of the court which will sit to hear the case.

As both sides settle in for what may, at the very least, be a year-long legal battle, Jadhav’s fate depends on the provisional measures which India has requested under article 41 of the statute of the ICJ.

Under Article 41 of the statute, the court may issue binding provisional measures upon a party to the dispute if it is convinced that the rights which form the crux of the application instituting proceedings are in immediate danger. Generally, urgent oral proceedings (which constitute a separate phase of the case) are held within three to four weeks to consider a request for provisional measures, and an order is issued if warranted by the circumstances of the case. Remarkably, the LaGrand case, which involved a similar consular access dispute between the US and Germany, saw the court issue provisional measures order within 24 hours.

In this regard, it may be pointed out that several news outlets have wrongly reported that the ICJ has issued a “stay order” or “interim order” on Jadhav’s execution in this case. This is not accurate as provisional measures, which have some of the trappings of a stay order, may only be issued by the ICJ under the provisions of article 41 of the statute of the ICJ. As the spokesman of the external affairs ministry has subsequently clarified, the president of the court – acting in exercise of his powers under article 74(4) of the ‘Rules of the Court’ – called upon Pakistan to not take any action so as to prejudice the ability of the court to award effective interim relief (provisional measures).

The power provided to the president of the court under article 74(4) of the rules of the court – which is only exercisable when a request for indication of provisional measures has been filed (as has been done by India in this case) – is merely the power to ‘request’ the parties to not take actions which would hinder or preclude a potential provisional measure issued by the court.

The actual binding provisional measure may only be issued by the court when it sits to adjudicate India’s request for indication of provisional measures, i.e., under the aforementioned urgent proceedings procedure. While predicting the judgment of any court is a precarious – and potentially embarrassing – endeavour, the established jurisprudence of the ICJ in handling requests for provisional measures involving the death penalty, which has previously been elaborated on, seems to favour India’s current request “to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed” pending final decision of the court.

Pakistan’s likely arguments – and a response

While it is impossible to predict every argument which may be advanced by Pakistan in this dispute, the statements which have hitherto been made by Pakistani officials offer us an insight into the legal case which is no doubt being currently assembled by its foreign ministry. Indeed, India’s written application takes note of – and seeks to counter – the claim by the Pakistan foreign ministry’s spokesperson that his country was not obliged to provide India consular access to Jadhav as “Pakistan and India have signed an agreement on consular access in 2008, and according to clause VI of that agreement, decision to grant consular access in cases where detentions and arrests relate to political or security matters, the request of consular access will be decided on merits of the case.”

While the official treaty database of the MEA does not include the 2008 “Agreement on Consular Access,” Pakistan would be entitled to claim, under international law, that the two countries have concluded a successive treaty dealing with the same ‘subject matter’ as the VCCR and that, consequently, their rights and obligations should be governed by this successive treaty (and not the VCCR, under whose Optional Protocol India has approached the ICJ). This, however, would not be a tenable argument as there is no treaty of the style and title “Agreement on Consular Access” between India and Pakistan registered with the secretariat of the UN. In this regard, Article 102 of the Charter of the UN makes clear that parties to treaties not registered with the secretariat may not invoke said treaties before any organ of the UN – the ICJ, unfortunately for Pakistan, is an organ of the UN.

Additionally, in a April 30, 2017 interview, Pakistan’s high commissioner to India asserted that his country was not obligated to adhere to the provisions of the VCCR as they did not “take precedence” over Pakistan’s domestic laws. He also suggested that the VCCR had not been incorporated in Pakistan’s domestic laws. This argument betrays the high commissioner’s less than erudite understanding of international law and obligations thereto. Under international law, unless otherwise provided, states are generally free to choose the manner in which they put themselves in the position to meet their international obligations domestically: they may choose to directly apply international law or transform it into national law by way of statutes. What states are not free to choose is whether or not they will perform their international obligations – generally owed to other states via treaties such as the VCCR – based on their internal law.

In summation, Pakistan’s domestic law cannot be invoked as a justification or excuse for its violation of international law. Consequently, while Pakistani courts and authorities were happy (and in most cases obligated) to apply their national law to deny Indian consuls access to Jadhav, the International Court of Justice will hold the authorities to the standards of the VCCR which Pakistan chose to bind itself to in 1969.

Yateesh Begoore Shivaswamy is an international lawyer.

In arrangement with TheWire