India: Denial Of Consular Access Gives Jurisdiction To ICJ-Kulbhushan Jadhav Case

Last Updated: 8 June 2017
Article by Veera Nath

In the domain of consular access, the Jadhav case manifests itself well as part of the process of humanization of international law. The explicit and prompt verdict of the International Court of Justice ("ICJ"), though liberating, might create disputes between morality and sovereignty of a nation.

Before discussing the delicate legal issues associated with this matter, it is imperative to have a basic knowledge and understanding of the facts. India on behalf of Kulbhushan Jadhav, an Indian national, who has been enslaved in Pakistan without any legal remedies, appealed to the ICJ against the death sentence given by a Pakistani Military Court allegedly holding him guilty of spying for Indian intelligence services. Fearing imminent execution by Pakistan, even before the International Court decides on its appeal, India called for an emergency hearing on 15.05.2017.

An 11-judge bench of the International Court of Justice, the primary judicial branch of the United Nations (UN), in its decision on 18.05.2017 decided that Kulbhushan Jadhav's death sentence in Pakistan shall be on hold till a final verdict is given. A huge win, though interim in nature, but a decision providing much relief to Jadhav's family.

India, at the ICJ, has confined its legal argument to seek access to Jadhav. Primarily, there are few legal issues which were raised by India, which incidentally also swung India's way. Pakistan did try to refute the same, but this is how the arguments proceeded: -

  • Jurisdictional Issue: India clearly stated that the said dispute falls under the jurisdiction of the ICJ under the purview of the Vienna Convention on Consular Relations ("VCCR"). Both India and Pakistan are signatories to the 'Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963' and as per this protocol, ICJ is the dispute settlement mechanism. Pakistan acceded to the protocol in 1976 and India in 1977. Article 1 of the Optional Protocol to the VCCR clearly states that "disputes arising out of the interpretation or application of the VCCR shall lie within the compulsory jurisdiction of the International Court of Justice". Therefore, as India moved the Court under Article 36(1) of the VCCR stating that the said Article has been violated by Pakistan, it is clear that ICJ shall exercise 'compulsory jurisdiction' with regards disputes arising out of the interpretation and applicability of the VCCR (Article 36) or any violation thereof. India claims that a dispute exists between the parties regarding the interpretation of Article 36(1) (a), (b) and (c) of the VCCR1 and that Pakistan has breached its obligations under the said Article in relation to arrest, detention, trial and sentence of Jadhav. India stated that"Jadhav has been arrested, detained, tried and sentenced to death by Pakistan and that, despite several attempts, it could neither communicate with nor have access to him, in violation of Article 36, sub-paragraphs (1) (a) and (1) (c) of the VCCR, and that Mr. Jadhav has neither been informed of his rights nor been allowed to exercise them, in violation of sub-paragraph (1) (b) of the same provision."
  • Since the dispute between India and Pakistan clearly deals with the issue of interpretation of Article 36 of the VCCR, Article 1 of the Optional Protocol would apply, giving the ICJ the requisite jurisdiction to govern the dispute. Simply put, on a conjoint reading of Article 36(1) of the VCCR and Article (1) of the Optional Protocol to the VCCR, the ICJ is an appropriate jurisdiction to test breaches of consular access, i.e. an appropriate jurisdiction to try Jadhav's case.

Pakistan on the other hand argued that "Article 36, paragraph 1, of the Vienna Convention could not have been intended to apply to persons suspected of espionage or terrorism, and that there can therefore be no dispute relating to the interpretation or application of that instrument in the present case."

But the Court duly pointed out that "the Vienna Convention does not contain express provisions excluding from its scope persons suspected of espionage or terrorism. At this stage, it cannot be concluded that Article 36 of the Vienna Convention cannot apply in the case of Mr. Jadhav so as to exclude on a prima facie basis the Court's jurisdiction under the Optional Protocol."

  • India made the case that Jadhav was deprived of his legal rights and remedies, when Pakistan failed to provide him with consular access under the VCCR. His trial was conducted without any evidence, and was bereft of the basic principles of natural justice. In the appeal to the ICJ, India has accused Pakistan of "egregious violations of the Vienna Convention". It is the duty of a nation to inform the other nation of an arrest of a person holding citizenship of that nation. One of the pillars of fair procedure, relating to arrest, is providing information regarding the grounds of arrest as well as rightful entitlement to legal rights and remedies that go along with it. In Jadhav's case, India should have had the right to regular consultation with consular officials during his detention and Jadhav should have been authorized to use requisite legal remedies. ICJ president, Ronny Abraham, while reading out the verdict clearly said that "India should have been given consular access as per the Vienna Convention". Pakistan's stand seemed to be a tradeoff between providing India consular access at the cost of getting an upper hand in the form of assistance from India to investigate the alleged espionage activities. This case is a classic example of disputes in the international arena that arise between nations on the question of consular access falling under the VCCR on aspects of arrest, detention and trial of its citizens.

India has requested the Court to declare the death sentence of Jadhav as illegal and void on the ground of clear violations of the relevant provisions of the International Covenant for Civil and Political Rights relating to fair trial.

  • Pakistan's contention on the above point was that 2008 bilateral Agreement on Consular Access between India and Pakistan would render the VCCR redundant and therefore leave the ICJ without jurisdiction over the dispute at hand. India clarified that the 2008 bilateral agreement has not been registered with the United Nation ("UN"), and therefore cannot be put forth before the judicial branch of the UN i.e. the ICJ as it holds only persuasive value. India based this argument on the text of Article 102(2) of the UN Charter which clearly states that "No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations."

Furthermore, the text of the 2008 bilateral agreement, does not, prima facie, indicate any intention to contract out of the VCCR. Agreeing with India's reasoning, the World Court set aside Pakistan's argument and stated that it has prima facie jurisdiction under Article I of the Optional Protocol to entertain the dispute between the States.

  • India, in its application to the Court, sought relief in the form of "restitution in integrum", i.e. 'restoration to original condition', requesting that Jadhav's conviction and sentence be set aside and that he be released. Pakistan argued that since the reversal of Jadhav's conviction is unobtainable, "provisional measures" cannot be ordered by the Court. In other words, Pakistan argued that if the "ultimate relief" sought by the applicant is unavailable, then the question of granting provisional relief should not even be considered. However, the Court made it clear that the uncertainty (for the time being till the Court hears the entire case on merit) of the ultimate relief does in no way have a bearing on granting provisional/interim relief.
  • The ICJ on 18.05.2017 ruled that there is possibility of "irrevocable prejudice to the rights of Jadhav", and accordingly stayed his execution until the final verdict is pronounced. They made it amply clear that this decision is binding on both the States.

Even though the verdict of the ICJ is binding on both the States, there is an imminent fear that Pakistan may go ahead and flout the order of the Court. Pakistan is now trying to establish that ICJ cannot trump domestic law and the World Court cannot override the country's law. They are taking a stand that Pakistan cannot be bound by the ruling of the ICJ as Jadhav was sentenced according to the country's law and constitution, therefore that shall prevail. This argument is to say the least, unfounded and a mere afterthought without any legal basis.

India stands firm on its ground that no person should be arbitrarily deprived of his life, and such rights are superior and above any other rights emanating under any law in force. The death sentence given by Pakistan is illegal and moreover violative of human rights law.

The prominent role of the Court at this stage was merely to consider whether the circumstances of the case required it to indicate "provisional measures" for preserving the respective rights of either State. The Court, in its unambiguous and comprehensive verdict on 18.05.2017 has unequivocally granted this interim relief, while it is yet to consider the merits of the case as a whole. The questions that remain unanswered are whether the Court will pass an order to review and reconsider the conviction and sentence or will the Court grant immediate ultimate relief and order the sentence to be set aside and subsequently release Jadhav from the clutches of alleged illegal detention ? It remains to be seen. However, for now the Court felt that provisional measures preventing Pakistan from executing Jadhav were warranted and necessary, as a first step for resolving dispute under an international treaty invoking international law.

Footnotes

1 Article 36(1) With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. ?

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