Priya Pillai

| @ | July 17,2019

[dropcap]T[/dropcap]HE Kulbhushan Jadhav case – between India and Pakistan at the International Court of Justice – will be decided today. India initiated proceedings before the ICJ on May 8, 2017, relating to the arrest, detention and sentencing to death of Jadhav.

While the facts are disputed, here are the basics:

Pakistan alleges that Jadhav is a serving Indian naval officer, who at the behest of the Indian authorities, was spying in Balochistan, an area with an ongoing separatist movement. Subsequently, he was arrested on March 3, 2016 by the Pakistani authorities. India alleges on the other hand that Jadhav is a retired naval officer with no involvement in espionage and was abducted from Iran where he was conducting business.

After being tried for espionage by a Pakistani military court, Jadhav was found guilty and sentenced to death on April 10, 2017. Due to multiple refusals by the Pakistani authorities to grant consular access and the death penalty, India filed an application before the ICJ for Provisional Measures. India argued that Article 36 of the Vienna Convention on Consular Relations (VCCR) was violated, and that the jurisdiction of the ICJ arises from Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes (‘Optional Protocol’).

After hearings on May 15, 2017, the ICJ issued a unanimous order in favour of India, indicating provisional measures in its order of May 18, 2017. It would be wise to remember that the indication of provisional measures was an interim step, without any impact on the final resolution of the case. Also, the court now has to determine whether it has jurisdiction, and if so, then it will address the merits of the case.

The parties filed submissionsbefore the ICJ over the course of 2017 and 2018 – India’s Memorial and Reply, and Pakistan’s Counter-memorial and Rejoinder – and the court held hearingson the matter in February 2019. The final decision, based on these arguments, will be rendered today.

 

On the Anvil: Jurisdiction, Merits, Remedies

 

The first issue up for determination is that of jurisdiction, which has been invoked based on Article 1 of the Optional Protocol, as a result of a “dispute arising out of the interpretation or application of the Convention”. The dispute in question relates to Article 36 of the VCCR. Pakistan argues however that there is no dispute per the VCCR, and that instead the compulsory jurisdiction of the ICJ based on Article 36 (2) of the Statute of the ICJ is at issue here. The argument is made that such compulsory jurisdiction is excluded for cases relating to national security, based on a declaration entered by Pakistan on March 29, 2017. Another argument brought up against the court exercising jurisdiction is the 2008 bilateral agreement between India and Pakistan on consular relations, which is argued excludes cases on “…political or security grounds…” and thereby modifies the VCCR as between India and Pakistan.

On this point, the ICJ will need to determine whether a subsequent agreement can restrict the scope of the obligations of the VCCR, to which both parties are signatories. An analysis 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.

If the ICJ finds it has jurisdiction in the case, it will then consider questions relating to a violation of the treaty in question. Assuming that the jurisdiction is restricted to the Optional Protocol, it is questionable whether the court will examine the content of violations of Article 14 of the International Covenant on Civil and Political Rights (ICCPR) which India has brought up. The court will limit itself to violations of Article 36 of the VCCR, which requires that consular officers have access to those detained or arrested. The denial of access to Jadhav and the inability to provide legal representation will be scrutinized as part of this substantive violation. What will also come up, however, will be the scope of the obligations under Article 36 – and whether, as Pakistan argues, these can be restricted for those accused of terrorism.

While the Indian argument is that the consular obligations are linked to the right to a fair trial under the ICCPR, it is unlikely that the court will address the death penalty imposition, or whether the right to a fair trial has been violated under the ICCPR as a result of a military court trial.

The remedies sought by India are extensive and include a suspension of the death sentence, annulment of the military court decision or a declaration by the ICJ of the illegality of the decision, and the release and safe passage of Jadhav back to India. Past jurisprudence of the ICJ, such as in in the LaGrand case (Germany vs US) and the Avena case (Mexico vs US), indicates the limitations of these arguments. The furthest the ICJ has gone is an order to ‘review and reconsider’ the decision by the state in question. How such a review is done is for the state itself to determine. There are some constraints – that it must be “effective” and include judicial review – but overall the ICJ will not step in to make a determination on behalf of the parties.

 

Predictions and Implications

 

This case brings up a few legal issues that have not been determined definitively before, and it will be interesting to see the approach of the court. I venture a few predictions here, based on past jurisprudence and my reading of the case.

On jurisdiction, the ICJ will most likely find that it does have jurisdiction based on the Optional Protocol to the VCCR, and will proceed to the merits of the case. It will also in likelihood find a violation of Article 36 of the VCCR, in the denial of consular access to Jadhav. On this point, it will be interesting to see how the court interprets the 2008 Agreement, as well as the question of espionage as a reason to deny consular access. On remedies, I assume that the court will follow its jurisprudence – and will order for the ‘review and reconsideration’ of the proceedings by Pakistan. I do not think the court will order the extensive remedies asked for by India, such as a civil court trial, suspension of the sentence or release.

While the bilateral relations of India and Pakistan often become a focus and heighten interest, there is a need to look at this case beyond the India-Pakistan dynamic, and look to the wider legal and policy implications.

One legal argument that has particularly significant implications is the question of withholding consular access in cases that relate to ‘political or security’ grounds. This is a slippery slope, as consular relations and access are based on reciprocal relations between states, embodied in international law and practice. Exceptions being read into these provisions can lead to an erosion of some of these basic guarantees, which can be detrimental in the longer term, beyond the remit of this case.

Another aspect to keep track of in the future – not necessarily in the outcome of this case, but certainly highlighted by the issues brought up here – is the greater engagement with individual rights by the ICJ, which has a state-centric focus and is not a human rights court. Judge Cançado Trindade’s concurring opinion to the Provisional Measures Order in this case refers to the ‘humanization’ of international law. Cases such as this highlight the dichotomy and the potential blurring of the lines between a focus of the rights of state versus that of the individual.

Finally, the impact of an ICJ decision can have consequences on treaties entered into by states. For instance, the U.S. withdrew from the Optional Protocol of the VCCR in 2009, in part as a result of cases at the ICJ. Furthermore, the decision of the court impacts consular relations between the two states, as well as for nationals of other third-party states.

And last, but certainly not least, this case has implications in regard to an individual who has been sentenced to death, the gravest of penalties.

This post is cross-posted from Opinio Juris.

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.

 

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