Consular Access to Jadhav: Invoking International Law as an Instrument of State Policy

On 8 May 2017, in an unprecedented action, India took a calibrated step to avail itself of an international law remedy for gaining access to its national, former naval officer Kulbhushan Jadhav, who is lodged in Pakistani custody and sentenced to death by a military court. Finding no room to reach out and rescue Jadhav, India decided to take the matter to the International Court of Justice (ICJ). The only other such case was when India had gone to the ICJ was in the 1971 matter concerning the jurisdiction of the International Civil Aviation Organization (ICAO) Council (India v Pakistan)^[1]. 

Still, in the Jadhav case, in view of the circumstances, the jurisdiction invoked and the invoking of an international law remedy for an Indian national make the major difference. India, generally, has refrained from taking any bilateral issue to international forums, including any court or tribunal. 

Indian action was triggered by consistent Pakistani denial of “consular access,” a minimal courtesy extended by all civilised states to nationals of another state, when they face charges under the local law. In a way, this Indian move to the ICJ underscores the beauty and majesty of international law for peaceful settlement of disputes. 

Ironically, the incident shows the plummeting of bilateral relations to its nadir. India has viewed the Jadhav case as stage-managed abduction, slapping of false espionage charges, and a secretive military trial leading to imposition of the death penalty. 

Consular Access as a Right

The Jadhav case provides a refreshing instance of India stepping out to support a national who is facing serious charges in another country. In fact, providing consular access for a national in trouble is one of the basic functions of a consulate. It is based upon one of the cardinal pillars of international law. 

Due to the prevailing trust deficit, Pakistan’s domestic compulsion to ward off growing isolation on the international front, as well as incidents of aiding and abetting a cross-border chain of terror pinpricks, India was forced to bypass the time-tested rule of “exhaustion of local remedies.” The preliminary local remedy of consular access was in any case not available. If given, it would prove futile due to the current impasse in bilateral relations. 

As a founding member of the United Nations (UN), India has been forced to move the ICJ not for violations of sovereignty per se, but the breach of an international treaty obligation, that is, the Vienna Convention on Consular Relations, 1963. India has consistently denied efforts of countries like Pakistan to take any bilateral dispute to the ICJ on the basis of the Commonwealth Clause contained in the declaration under Article 36(2) of the Statute of the ICJ. Such a declaration recognises as “compulsory” the jurisdiction of the Court, and takes the form of a unilateral action by the concerned state. The Jadhav case vindicates the need for India to take international law more seriously across the board as a core instrument of state policy. 

It seems that the steadfast refusal by Pakistan to allow Indian consular access to Jadhav has “lent credence to Indian claim about ‘fixing’ of Jadhav, circumstances of his alleged abduction and ‘sale’ in early 2016 to elements in Pakistan and slapping of ‘espionage’ case even though proved to be carrying an Indian passport.” It has been contended that such denial “has prevented India from exercising its rights under the Convention and has deprived the Indian national from the protection accorded under the Convention.”^[3]

The issue at stake has been the nationality of Jadhav and the prevalent right of India to provide diplomatic/consular protection to Jadhav. The case is unique since all Indian efforts to allow consular access to Jadhav are understood to have been stonewalled by Pakistan with the démarche issued to the Pakistan High Commissioner being ignored and all pleas at the diplomatic level falling on deaf ears. In turn, the incident has placed bilateral relations in serious jeopardy. 

Compulsory Jurisdiction

In a way, in spite of the lack of so-called “compulsory” jurisdiction, India has deftly sought to tap the legal remedy available under Article 36(1) of the Statute of the ICJ^[2] (all matters provided for in treaties and conventions in force), as well as Article 1 of the Optional Protocol Concerning the Compulsory Settlement of Disputes (1963) to the Vienna Convention on Consular Relations^[4]. As of May 2016, the protocol was ratified by 51 states, including both India and Pakistan. 

The Optional Protocol (Article 1) provides that, 

unless some other form of settlement has been agreed upon by the parties … Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol. 

The ICJ has emphatically held that Article 1 of the Optional Protocol provides precise and categorical provision “establishing the compulsory jurisdiction of the Court in respect of disputes arising out of the interpretation or application of the Vienna Convention.”^[5] 
 
The Jadhav case represents a new growing trend, in which a state party seeks to raise the issue of the breach of a specific treaty obligation by another state. For instance, Ukraine has taken the Russian Federation to the ICJ for breach of Convention for the Suppression of the Financing of Terrorism, as well as the Convention on Elimination of all Forms of Racial Discrimination. 

It led the ICJ to order provisional measures asking Russia to “refrain from maintaining or imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis” and “ensure the availability of education in the Ukrainian language.”^[6]

Provisional Measures

Indian action in the Jadhav case has been buttressed by the turning down of more than 15 requests for consular action by Pakistani authorities. In a petition filed in the registry of the ICJ (The Hague), India underscored the urgency of the situation. By referring to Article 74(4) of the Rules of Court, India asked the Court to indicate forthwith, and without holding any hearing, provisional measures proprio motu. 

The Court has already pointed out in the Breard case (Paraguay v United States [US]) that it has established the rule to order interim measures in cases where there is a possibility of "irreparable prejudice … to rights which are the subject of dispute.”^[7] As a corollary, in a swift move, by virtue of powers conferred under (Article 74[4]) the Rules of the Court, ICJ President Ronny Abraham issued an order on 9 May 2017 asking the Pakistani Prime Minister to “act in such a way so as to enable the court to enforce any decision it takes on the Indian plea.” The ICJ promptly scheduled a hearing on 15 May 2017 in the matter, and on 18 May 2017 indicated “provisional measures” till the final decision in the matter. 

The Indian contention in the Jadhav case is rooted in Article 36(1) of the Vienna Convention that guarantees unimpeded consular communication, access, as well as legal representation by a “sending state” to its nationals who are arrested or committed to prison pending trial or detained in any other manner. Pakistan’s consistent and wilful denial of India’s right to provide consular protection to Jadhav has led the ICJ to underline the sanctity of the convention as well as the efficacy of the remedy available under the Optional Protocol. 

The legal recourse taken by India is a cogent step to obtain judicial restraint on Pakistan’s conduct, which has resulted in gross violation of not only India’s right of consular access, but also Jadhav’s basic human right to life under Article 6 of the International Covenant on Civil and Political Rights (ICCPR). 
 
In general, UN member states take matters to the ICJ on issues concerning territorial integrity and sovereignty, like delimitation of land and maritime borders, or other violations of international law. It is rare that states contend before the ICJ issues concerning rights of a corporate entity (Interhandle case in 1957 by Switzerland against the US)^[8] or individuals (Asylum case in 1951 by Colombia against Peru)^[9]. 

In 1979, the US also had to take to the ICJ the matter against the Iranian revolutionary guards’ seizure of the US Embassy in disregard to the Vienna Convention on Diplomatic Relations (1969) and the Vienna Convention on Consular Relations. In granting provisional measures, the ICJ came to the rescue of the US and ordered that the US Embassy, Consulates and Chancery be restored to the possession of the US and their “inviolability and effective protection” be ensured as provided under the respective treaties and general international law. 
In the final judgment, the ICJ emphatically ruled that 

Islamic Republic of Iran, by the conduct which the Court has set out in this Judgment, has violated in several respects, and is still violating, obligations owed by it to the United States of America under international conventions in force between the two countries, as well as under long-established rules of general international law.^[10]

In the famous LaGrand case (1999), the ICJ upheld the German contention that the US violated the Vienna Convention on Consular Relations by not advising its nationals Karl and Walter LaGrand on their right to consular access, which prevented Germany from obtaining effective trial counsel for them^[11]. Ironically, in spite of repeated German assertions, Karl LaGrand was executed in the state of Arizona on 24 February 1999. Still, the ICJ did grant urgent provisional measures and stayed the execution of Walter LaGrand, which was slated for 3 March 1999. 

ICJ Order of 18 May 2017

As a sequel to the oral hearing held on 15 May 2017, by a bench of 11 judges (since the Court was organised at a very short notice), the ICJ quickly issued an order for “provisional measures” on 18 May 2017^[12]. As per ICJ practice, it can indicate provisional measures only if there is prima facie satisfaction as regards the basis for jurisdiction in the case. The Court was satisfied that both India and Pakistan have been parties, without any reservations, to the Optional Protocol as well as the Vienna Convention on Consular Relations. 

Contrary to popular misconception, India has sought ICJ jurisdiction under Article 1 of the Optional Protocol as well as Article 36(1) of the Statute of the ICJ. As a corollary, India has claimed that where specific treaties and conventions (such as the 1969 Optional Protocol to the Vienna Convention) provide for the Court’s jurisdiction, any caveats or reservations specified under the Optional Clause (Article 36[2] of the statute) are not applicable. It is a laudable stance. Still, it could make India vulnerable to invoking of similar treaty-specific jurisdiction by other states.

Since India chose to rely upon jurisdiction under Article 36(1) of the Statute of the ICJ, the Court did not examine the application of reservations made under Article 36(2). It also brushed aside Pakistan’s contention that consular protection of Vienna Convention could not have been intended to apply in cases of espionage/terrorism. 

Similarly, notwithstanding the 2008 bilateral agreement between India and Pakistan on consular access that allowed latitude on “political or security grounds,” India contended that any bilateral agreement cannot be seen to “dilute” the overarching protection laid down in the Vienna Convention. By allowing the Indian plea to rely exclusively on the Optional Protocol and the Vienna Convention, the Court brushed aside Pakistan’s contentions on the jurisdiction. 

In order to determine its prima facie jurisdiction, the Court categorically asserted that it “considers that the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Vienna Convention ratione materiae.”^[13]

This is a significant preliminary observation by the ICJ on the violation of the basic international law obligation by Pakistan. Moreover, without going into the need for a definitive conclusion, the Court took a considered view that the consular rights guaranteed by Article 36(1) of the Vienna Convention, are sufficiently “plausible” and, hence, they need protection through provisional measures pending the final decision in the matter. 

By virtue of the power given in Article 41 of its statute, the Court found enough justification “to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings.”^[14] Moreover, the Court opined that “mere fact that Mr Jadhav is under such a sentence and might therefore be executed is sufficient to demonstrate the existence of such a risk.”^[15] Thus, the criteria of “irreparable prejudice and urgency” were established from the facts of the case.^[16] 

On balancing these facts of the case, contentions of the parties, its own practice, and different sets of factors, the ICJ took the unanimous view and ruled that 

Pakistan shall take all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order.^[17]

Apart from this, the Court also unanimously decided to remain seised of the matter till the final decision in the case. 

What Lies in Store Now?

As principal judicial organ of the UN, the ICJ has been entrusted with the task of judicial settlement of disputes especially among the member states. In this onerous task, international law remains the raison d'être of the Court, and it often ends up doing delicate tightrope walking. The history of the Court shows that it did rise to the occasion when sovereign states turned to it for solutions to seemingly intractable problems of the day. 

ICJ orders not only seek to uphold working and effectiveness of international law, but also indicate contours of state conduct by tracing legal lineage from treaties, customary principles, general principles, writings of publicists, and judicial decisions. Since the Court (all 15 judges) represents principal legal systems of the world, it is in the best position to prescribe appropriate international law remedies, including apologies, to check aberrant behaviour of sovereign states. 

As the record shows, over the years, relevant orders and judgments of the Court have been overwhelmingly complied with by the parties to the dispute (barring some very rare exceptions, such as the Nicaragua^[18] and Hostages^[19] cases). 

The ICJ’s provisional measures in the Jadhav case may bring about some sobriety so as to enable Pakistan to back off from the brink. Having been left with no choice amidst groundswell of domestic public opinion, as well as Pakistan’s invocation of the “Jadhav card” as an irritant to ward off international isolation, Indian recourse to the ICJ underscores that international law could prove to be the best instrument of state policy in trying times where “use of force” is not permissible.

The decisions given by the ICJ are binding on the parties to the dispute. As such, Pakistan needs to gracefully abide by the provisional measures. It can defy the ICJ at its own peril. Any effort to pre-empt the ICJ’s consideration of merits in the case by surreptitious execution of Jadhav could only have very serious consequences. In such an eventuality, it could irreversibly harm India–Pakistan relations. 

The Indian recourse to this international law remedy does provide a glimmer of hope for Jadhav. It appears that Pakistan did not foresee consequences of invoking the Jadhav card to force India’s hand. 

If the ICJ orders in recent cases (Breard, LaGrand and Avena cases) of denial of consular access are any indication of what is to come, Pakistan faces prospects of falling between two stools in the Jadhav case. The onus lies with India now, as usual, to provide a face-saver to Pakistan. 

It is quite possible that Pakistan would be willing to reach an agreement with India before the conclusion of the merits stage, as it did in the case concerning the Trial of Pakistani Prisoners of War (1973)^[20]. It lead to Pakistan withdrawing the case following an agreement with India that facilitated the repatriation of 195 Pakistani prisoners of war (POWs) in Indian custody who faced prospects of impending trial for crimes of genocide in Bangladesh. 
If India could show magnanimity in returning 92,000 POWs as well as the 195 internees facing grave charges of genocide to Pakistan, the latter cannot now stoop to execute a single Indian national, Jadhav, on a much less serious and motivated charge of espionage. 

If the Pakistani establishment earnestly seeks to initiate the process of picking up threads of its battered bilateral relations with India, an honourable return of Jadhav would now become the condition precedent to prove bona fide and open a window to bilateral negotiations. This would be more decent than facing prospects of the ICJ ruling on violation of India’s consular right as a basic tenet of international law. 

One can only hope for wiser counsel to prevail. 

Notes 

[1]  Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan), International Court of Justice (ICJ), http://www.icj-cij.org/en/case/54. 

[2] Article 36(2) of the Statute of the ICJ provides that “the States parties to the Statute of the Court may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court." 

However, in a declaration filed on 18 September 1974 by the then Indian Minister for External Affairs, Swaran Singh, Clause (2) was included, which states that “disputes with the government of any State which is or has been a Member of the Commonwealth of Nations.” This clause rules out the possibility of any case being brought by India’s neighbouring countries to the ICJ (Declarations recognizing the jurisdiction of the Court as compulsory: India, 18 September 1974, http://www.icj-cij.org/en/declarations/in).  

[3] Bharat H Desai and Balraj K Sidhu, “Upholding Majesty of International Law,” Tribune, 11 May 2017, http://www.tribuneindia.com/news/comment/upholding-majesty-of-international-law/405059.html. 

[4] Optional Protocol Concerning the Compulsory Settlement of Disputes (1963) to the Vienna Convention on Consular Relations (1963), http://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963_disputes.pdf; Vienna Convention on Consular Relations (1963), http://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf.

[5] United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), judgment, ICJ, 24 May 1980, pp 25–26, http://www.icj-cij.org/files/case-related/64/064-19800524-JUD-01-00-EN.pdf. 

[6] Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), provisional measures order, ICJ, 19 April 2017, p 35, para 106, http://www.icj-cij.org/files/case-related/166/19394.pdf.    

[7]  Vienna Convention on Consular Relations (Paraguay v United States of America), provisional measures order, ICJ, 9 April 1998, p 257, para 36, http://www.icj-cij.org/files/case-related/99/099-19980409-ORD-01-00-EN.pdf;  Immunities and Criminal Proceedings (Equatorial Guinea v France), provisional measures order, ICJ, 7 December 2016, para 82, http://www.icj-cij.org/files/case-related/163/163-20161207-ORD-01-00-EN.pdf.

[8] Interhandel (Switzerland v United States of America), ICJ, http://www.icj-cij.org/en/case/34 

[9] Asylum (Colombia v Peru), ICJ, http://www.icj-cij.org/en/case/7. 

[10]  Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), provisional measures order, ICJ, 15 December 1979, p 21, para 47(a), http://www.icj-cij.org/files/case-related/64/064-19791215-ORD-01-00-EN.pdf; Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), judgment, ICJ, 24 May 1980, p 44, para 95, http://www.icj-cij.org/files/case-related/64/064-19800524-JUD-01-00-EN.pdf. 

[11] LaGrand (Germany v United States of America), provisional measures order, ICJ, 3 March 1999, p 16, para 29, http://www.icj-cij.org/files/case-related/104/104-19990303-ORD-01-00-EN.pdf; LaGrand (Germany v United States of America), judgment, ICJ, 27 June 2001, pp 514–16, para 128, http://www.icj-cij.org/files/case-related/104/104-20010627-JUD-01-00-EN.pdf.

[12] Jadhav Case (India v Pakistan), request for indication of the provisional measures order, ICJ, 18 May 2017, http://www.icj-cij.org/files/case-related/168/168-20170518-ORD-01-00-EN.pdf. 

[13] Jadhav Case (India v Pakistan), request for indication of the provisional measures order, ICJ, 18 May 2017, p 8, para 30, http://www.icj-cij.org/files/case-related/168/168-20170518-ORD-01-00-EN.pdf.  

[14]  Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), provisional measures order, ICJ, 19 April 2017, p 31, para 88, http://www.icj-cij.org/files/case-related/166/19394.pdf; Immunities and Criminal Proceedings (Equatorial Guinea v France), provisional measures order, ICJ, 7 December 2016, p 19, para 82, http://www.icj-cij.org/files/case-related/163/163-20161207-ORD-01-00-EN.pdf. 

[15]  Jadhav Case (India v Pakistan), request for indication of the provisional measures order, ICJ, 18 May 2017, p 8, para 53, http://www.icj-cij.org/files/case-related/168/168-20170518-ORD-01-00-EN.pdf.

[16]  Avena and Other Mexican Nationals (Mexico v United States of America), provisional measures order, ICJ, 5 February 2003, p 91, para 54, http://www.icj-cij.org/files/case-related/128/128-20030205-ORD-01-00-EN.pdf.  

[17]  Jadhav Case (India v Pakistan), request for indication of the provisional measures order, ICJ, 18 May 2017, p 8, para 61, http://www.icj-cij.org/files/case-related/168/168-20170518-ORD-01-00-EN.pdf.

 

[18]  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), ICJ, http://www.icj-cij.org/en/case/70. 

[19]  United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ, http://www.icj-cij.org/en/case/64. 

[20]  By a letter dated 14 December 1973, Pakistan informed the Court in writing that “it is not going on with the proceedings” (in view of negotiations and the agreement between Pakistan and India on 28 August 1973); Trial of Pakistani Prisoners of War (Pakistan v India), order, ICJ, 15 December 1973, p 347, http://www.icj-cij.org/files/case-related/60/060-19731215-ORD-01-00-EN.pdf.

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