THE decision of the ICJ in the Jadhav case is in favour of India. It has conformed to its past jurisprudence, and ruled as predicted. Except for the finding on jurisdiction, where the verdict was unanimous, on all other counts the verdict was 15-1, with the ad hoc judge nominated by Pakistan as the sole vote against.
The court ruled that it had jurisdiction in this case, on the basis of the Optional Protocol to the Vienna Convention on Consular Relations (VCCR). It rejected the arguments on abuse of process, abuse of rights, as well as the ‘clean hands’ doctrine. It then moved on to the substantive merits of the case – whether Pakistan violated Article 36 of the VCCR.
On this point, the court found that there was a violation of Article 36, and that the 2008 bilateral agreement did not vitiate the VCCR. The breaches of international law included lack of notification of arrest and detention to the Indian consular post in Pakistan, not informing the person of his rights, and depriving the right of India to communicate, visit or provide Kulbhushan Jadhav legal representation. Importantly, the court rejected the argument that provision of consular access was predicated on cooperation with the investigation, or that allegations of espionage would remove the protections of the VCCR.
On remedies, the court again followed its jurisprudence, ordering for the provision of consular assistance, as well as the ‘review and reconsideration’ of legal proceedings in Pakistan. How Pakistan does this, is for it to choose.
The court also ordered a continued stay of execution pending such review. The court did not order the extensive remedies asked for by India, such as suspension of the sentence or release and repatriation. It also kept its scope limited to the violation in question – that is, of consular relations, and did not take into consideration the ICCPR as argued by India.
While it has followed its jurisprudence from the Aven aand La Grand cases, there is stronger language in the scope of review and reconsideration, and the importance of this being ‘effective’. The lack of clarity in regard to judicial review of military courts, the lack of application of fundamental rights to military court proceedings, and the insufficiency of clemency proceedings have been noted by the court.
While the court has not gone as far as India had argued for on remedies, this is nonetheless a legal win, and clarifies the jurisprudence of the court further in cases of violations of the VCCR.