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India v. Pakistan – Round Four

JURIST Guest Columnist Dhruv Sharma of National Law University, Delhi discusses the tense relationship between India and Pakistan magnified due to recent events ...

On May 8 2017, the President of the International Court of Justice (“ICJ”), exercising his powers under Rule of the Court 74(4), forwarded a request to the government of Pakistan to “act in such a way as will enable any order the court may make on this request to have had its appropriate effects.” This request was made pursuant to India’s petition before the court to institute proceedings against Pakistan and pass provisional measures to suspend the execution of Mr. Kulbhushan Jadhav, an Indian national, who was captured, tried and sentenced to death by Pakistan on charges of espionage and terrorism.

India moved to The Hague under Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes (“Optional Protocol”) which grants compulsory jurisdiction to the ICJ in matters of interpretation of the Vienna Convention on Consular Relations (“VCCR” or “Convention”). The matter was heard on May 15, 2017, wherein the ICJ was pleased to grant provisional measures in favor of India.

Background

Like every other India-Pakistan exchange, two narratives have arisen from the arrest of Mr. Jadhav, with each side preferring one that posits them in good light.

As per the Indian version of events, Kulbhushan Jadhav is an Indian businessman who retired from the Indian Navy in 2002. He ran his business from Iran and was arrested on the Iran-Pakistan border. Thereafter, he was framed for committing espionage and terror related activities in Balochistan based upon a tutored and doctored confessional video wherein Mr. Jadhav accepted the charges framed against him under immense mental and physical torture. India claims that it has been denied consular access to Mr. Jadhav since his arrest despite numerous requests. India has argued that the continued denial of access to Mr. Jadhav is in breach of Pakistan’s obligations under the VCCR and India’s rights under Article 36 of the Convention.

According to the Pakistani version of events, Kulbhushan Jadhav, a commander-rank navy officer, was arrested by the Pakistan Police in March 2016 on charges of fomenting unrest in Karachi and Balochistan as an agent of the Indian intelligence agency (the Research and Analysis Wing). He was tried and found guilty under section 59 of Pakistan Army Act, 1952 and Section 3 of the Official Secret Act, 1923 by the Field General Court Martial (“FGCM”) which consequently awarded him the death penalty on April 10, 2017. To buttress its arguments Pakistan also released a video of Mr. Jadhav’s confession wherein he admitted to carrying out terror activities in Balochistan. As per Pakistan’s case, Mr. Jadhav’s acts preclude any right to consular access to him or his host state.

The two versions therefore align on the point of lack of consular access. This lack of consular access and the consequent alleged violation of the VCCR was the primary reason for India’s application before the ICJ against Pakistan.

Institution of Legal Proceedings

Failing access to Mr. Jadhav, India moved for an application to the institution of proceedings relying upon the Optional Protocol under Article 36(1) of the ICJ Statute. An application under Article 36(1) grants jurisdiction to the court based on referral by a state or through specific provision for grant of jurisdiction under the UN Charter or other treaties in force. The application under Article 36(1), instead of Article 36(2), of the ICJ Statute means that India has considerably limited the final scope of its application as it can only realize remedies for lack of access to Mr. Jadhav. This precludes relief as to validity of the sentence imposed or the eventual release of Mr. Jadhav under international human rights law. However, the application also astutely goes around any objections to compulsory jurisdiction that Pakistan could raise based on its declaration to the court dated March 29, 2017 that limited the scope of the compulsory jurisdiction of the court under Article 36(2).

In the present case the application for exercise of jurisdiction relies on the violation of Article 36(1) of the VCCR.

The VCCR, under Article 36(1)(b), provides the arrested person of a foreign state with the right to communicate with his/her consular post without delay. The receiving state is further under a duty to inform the arrested person of the aforesaid right immediately upon his/her arrest. Similarly under Article 36(1)(c) the consular officers of the sending state have the right to visit the arrested national to converse, correspond and arrange for his legal representation. This right continues even after a judgment is passed against such person.

While we cannot presume Mr. Jadhav knows of his rights Article 36 (1)(b) or the communication of the same by Pakistan to him, India’s continued attempts and Pakistan’s express and admitted denial to such access is in violation of at least Article 36(1)(c) of the VCCR.

Now the violations of the VCCR may be adjudicated by the ICJ in accordance with Article 1 of the Optional Protocol that provides it with jurisdiction over the interpretation of its parent treaty, the VCCR. India and Pakistan ratified the Optional Protocol in 1977 and 1976 respectively and thereby conferred jurisdiction upon the ICJ to interpret their rights and obligations flowing from the VCCR. Put simply, the impending death sentence awarded to Mr. Jadhav combined with alleged violation of rights under Article 36(1) and the conferment of jurisdiction upon the ICJ by both the parties involved could establish a prima facie case for jurisdiction, institution of proceedings against Pakistan and the passing of provisional measures in favor of India.

Application for Provisional Measures

Since his arrest in March 2016, India has made numerous failed attempts at gaining consular access to Mr. Jadhav. The continued diplomatic failure combined with growing concerns regarding the well-being of Mr. Jadhav compelled India to move an application before a forum it has not used since 1971. India’s application for institution of proceedings was interestingly accompanied by a request for grant of provisional measures. The application for provisional measures relied on the “egregious violations of the Vienna Convention on Consular Relations” through the delayed information regarding Mr. Jadhav’s incarceration and the subsequent lack of access to him despite repeated requests.

The grant of provisional measures, while not the court’s final say in a matter, may still provide time to India to pursue all means to ensure the release of Mr. Jadhav. However the same does not imply final jurisdiction in the matter as was observed by the court in the LaGrand case (Germany v. United States) wherein the court passed an order to stay the impending execution of a Walter LaGrand (the United States, though, never complied with the order). In paragraph 13 of that order, the court specifically observed that:

“Whereas, on a request for the indication of provisional measures the court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, but whereas it may not indicate them unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the court might be founded.”

The Proceedings

The provisional measures hearings in the Jadhav case were conducted on 15 May 2017.

India began by reiterating its reliance on Article I of the Optional Protocol to the VCCR and not on Article 36(2) of the ICJ Statute. It relied on the precedent set by the World Court in the case of Paraguay v. United States of America, the LaGrand case and the case of Avena and Other Mexican Nationals to argue for provisional relief in the form of suspension of death sentence till the pendency of the court proceedings. India argued that despite 17 attempts it was precluded access to Mr. Jadhav in contravention of Article 36(1) of the VCCR. The Indian contingent acknowledged that India and Pakistan had entered into a Bilateral Agreement on Consular Access in 2008, however, denied that the same limited the application of the VCCR and argued that it simply supplemented the Convention. India, therefore focused on the immediacy of the request, arguing that considering the impending death sentence awarded to Mr. Jadhav, irreparable injury would be caused to India’s rights were he to be executed during the pendency of the proceedings.

Pakistan initiated its arguments with a touch of drama, by attempting to play a video of Mr. Jadhav confessing to his crimes. However, the video was disallowed by the court. Arguments first focused on the lack of jurisdiction enjoyed by the court in the matter considering Pakistan’s declaration under Article 36(2) of the ICJ Statute and the subsequent bilateral agreement between India and Pakistan that made the VCCR inapplicable in the present case. Pakistan further argued that the Vienna Convention did not apply to individuals involved in espionage and terrorist activities. Finally, Pakistan argued that India had failed to establish that Mr. Jadhav was an Indian national and therefore India lacked any locus in the matter despite the fact that it has in the past claimed that Mr. Jadhav is an Indian spy captured in the Baloch region of Pakistan, and has used the video confession to show his admission of being Indian.

Order of the Court

The order of the court was delivered on 18 May 2017 wherein the court, as expected, granted provisional measures in favor of India. The court, finding prima facie jurisdiction, found merit in India’s arguments that the application for provisional measures had been moved under Article I of the Optional Protocol along with Article 36(1) of the ICJ Statute and therefore reservations/declarations made with respect to Article 36(2) were irrelevant. The court similarly satisfied itself of having jurisdiction ratione materiae through the ostensible violation of India’s right to communicate and have access to Mr. Jadhav as per Article 36(1) of the VCCR. The court found that the VCCR did not exclude its application to individuals suspected of espionage or terrorism and that the 2008 Bilateral Agreement also did not expressly prohibit such right of access.

Finally as regards the urgency of the proceedings, the court held that despite the opportunities available to Mr. Jadhav to petition or appeal his conviction and sentence, “the mere fact that Mr. Jadhav is under a death sentence and might be executed is sufficient to demonstrate the urgency.”

The Road Ahead

Since the order on provisional measures, the court has set a timeline for the filing of initial pleadings by India and Pakistan, Pakistan has rejected India’s 18th attempt at gaining consular access to Mr. Jadhav and, in Pakistan, Mr. Jadhav has allegedly petitioned for clemency.

While the provisional measures granted in favor of India, based purely on a prima facie establishment of jurisdiction, is a substantial victory in delaying the death sentence, the same does not in any way preclude Pakistan from raising questions of jurisdiction, admissibility and merits of the case in the advanced proceedings.

Going forward it is likely that the Bilateral Agreement between India and Pakistan on consular access would play a substantial role in ascertaining any violation of India’s rights. During the time of the arguments for provisional measures, the Bilateral Agreement had not been registered with the Secretariat of the United Nations and technically it could not have been relied upon by Pakistan. However the agreement has since been registered with Registration ID 54471 on May 17, 2017. The subsequent registration raises interesting questions regarding the effect of the delay of around nine years on the registration of Treaties with the Secretariat and whether the court can look into an agreement whose violation has not been argued by the complainant state.

In a scenario that the court allows for the application of the Bilateral Agreement it will then have to satisfy itself whether an agreement between two countries can in fact limit the application of the VCCR in light of Article 73 that only allows for other agreements “confirming or supplementing or extending or amplifying the provisions” of the Convention. Subsequently another inquiry would have to be done on Article VI of the Bilateral Agreement which allows each state to examine an arrest made on political or security grounds on its own merits and therefore potentially deny consular access.

In conclusion, regardless of the temporary nature of the provisional measures, what transpired on May 15, 2017 would potentially have a long-standing effect on not only the progression of the present case, but also the relationship shared between the countries. For while India has historically attempted to keep the strained relations between the two countries at a bilateral level, this internationalizing of the dispute reflects a definitive break from the past.

Dhruv Sharma is a New Delhi based lawyer from the National Law University, Delhi. Upon graduation, he moved to The Hague for three months to work at the Special Tribunal for Lebanon, where he worked, among others, on the issue of the death of an accused during pendency of criminal proceedings.

Suggested citation: Dhruv Sharma, India v. Pakistan - Round Four, JURIST - Professional Commentary, July 10, 2017, http://jurist.org/professional/2017/07/dhruv-sharma-india-pakistan.php.



This article was prepared for publication by Henna Bagga, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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