In this article, Siddhant Sarangi of  School of Law, KIIT, throws light on the role of the ICJ in the Kulbhushan Jadhav Case.

Background

The Republic of India instituted proceedings against the Islamic Republic of Pakistan for the violation of the Vienna Convention on Consular Relations for the arrest and detention of an Indian National, Mr Kulbhushan Jadhav, who was tried and sentenced for death by a military court in Pakistan. The Government of India claims that it came to know about the death sentence from a Press release and after diplomatic channels failed, it approached the International Court of Justice on the 08th of May 2017 seeking:-

1. The immediate suspension of the death sentence of Mr Kulbhushan Jadhav.
2. Declaration of the military sentence of Mr Kulbhushan Jadhav to be in violation of the Vienna Convention on Consular relations as well as in defiance of Article 14 of the International Covenant on Civil and Political Rights.
3. To restrain the Pakistani government from executing the sentence given by the military court.
4. And on Pakistan being unable to annul the decision the court to declare the decision as illegal and being violative of International Laws and treaties.

India claims that

• Mr Jadav was kidnapped from Iran, where he had been to on a business trip since retiring from the Indian Navy and that the Pakistani government shows him to be arrested from Balochistan in Pakistan on the 8th of March 2017.
• India repeatedly sought consular access from 25th March 2017 onwards but was denied. India further alleged that the Pakistani government sought assistance from the Indian government on its investigation from 23 January 2017 for espionage and terrorist activities in Pakistan in exchange for consular access, which according to the Indian Government was itself a violation of Vienna Convention on Consular Rights.

India approached the ICJ, pursuant to Article 36(1) of the statute of the International Court of Justice and the operation of the Article 1 of the Optional Protocol Concerning the Compulsory Settlement of Disputes which states that any dispute arising out of the interpretation or the application of the Convention on Consular Relations shall lie within the compulsory jurisdiction of the International Court of Justice bought to it by an application made by a party in dispute.

On 08th May India also filed a request for provisional measures so as to till the pendency of the trial at the ICJ, the court must indicate to the government of the Islamic Republic of Pakistan to take all necessary measures so that Mr. Jadav is not executed, and then report to the Court about the actions that it has taken in pursuance to that and to not take any actions that might be prejudicial to the rights of the Republic of India or that of Mr Kulbhushan Jadhav.

The International Court of Justice in the Jadav Case accepted the contention presented to it by the Republic of India that:-

• it has jurisdiction over the matter, as it arises from Article 1 of the Optional Protocol, which satisfies 36(1) on matters of interpretation and application.
• The Court accepted the prima facie jurisdiction on the grounds that Pakistan’s failure to provide access to India appeared to be capable of falling within the scope of the convention and also the existence of a bilateral agreement between the two, established the jurisdiction of the court.
• It held that India’s contention regarding the violation of Article 36 of the Vienna Convention on Consular relations which states about the Rights of consular notification and the access between a state and its national, in this case to be plausible and that being satisfied of the urgency of the case indicated to Pakistan to take all necessary measures to stop the execution of the Mr Jadav.

Jurisdiction of the International Court of Justice

The International Court of Justice is the successor of the Permanent Court of Justice established in the year 1945, at the Hague, and is the principal Judicial body of the United Nations. The Member states to the United Nations Charter automatically become signatories to the Statute of the International Court of Justice.

ARTICLE 36 of the Statute of the International Court of Justice

Pursuant to Article 36 of the Statute of the International Court of Justice, the jurisdiction of the court arises from all cases referred to it by the parties to the United Nations Charter or any treaties or convention. Jurisdiction of the Court also emanates from Article 36(2) which states that the state parties at any time, through a declaration, accept the compulsory jurisdiction of the ICJ on all legal disputes concerning the interpretation of a treaty, a question of international law , or existence of a fact which would constitute a breach of an international obligation or on the nature and extent of repartationand all questions of jurisdiction is to be settled by itself.

An analysis of the question of jurisdiction raised in the Jadav Case.

Breaking down Article 36 of the Statute of the International Court Of Justice which states that the jurisdiction of the Court arises from all cases referred to it by the parties on all matters specially provided in the United Nations Charter and other treaties and conventions in force, or the parties to the dispute may declare ipso facto that they accept the compulsory jurisdiction of the court on matters of

a) Interpretation of a treaty

b) Question of International Law

c) Existence of a fact which if established would lead to the breach of International obligation and

d) The nature and extent of the reparation to be made for the breach of an international obligation. 

Article 36(3) states that the declaration may be conditional or unconditional or be based on reciprocity of the parties and lastly Article 36(6) states that the question of Jurisdiction shall be settled by the parties.

Pakistan in the 1960s had accepted the compulsory jurisdiction of the International Court of Justice with two reservations. 57 years later just before the hearing of the Jadav Case in the ICJ, Pakistan added 6 more clauses to the declaration in which one of them were that it won’t accept the compulsory jurisdiction of the Court on grounds of national security.  

Pakistan has continually claimed that Kulbhushan Jadhav was an Indian spy and was responsible for various terrorist attacks in Pakistan and that being detrimental to the national security of Pakistan it wouldn’t accept the jurisdiction of the ICJ. However the acceptance of Jurisdiction in the Jadav case doesn’t derive from Article 36(2) but from 36(1) as India has brought the claim under Article 36(1) of the ICJ statute i.e. jurisdiction derived from other treaties.

A Precedent

In the appeal relating the Jurisdiction of the ICAO (India Vs Pakistan) where India had approached the ICJ against its decision that interfered with the sovereign right of the Republic of India to ban Pakistani overflights over its airspace, and at that time Pakistan existed both on the western as well as eastern borders of India. India had argued that the dispute could be resolved without reference to the ICAO and the International Air Services Transit Agreement as New Delhi had terminated them post a hijacking in 1971, countering this Pakistan argued that the ICJ had no jurisdiction due to the effect of India’s reservation on disputes with other Commonwealth nations in its declaration for accepting compulsory jurisdiction. ICJ held that the treaties and declarations were separate and independent and that India’s further declaration of accepting the compulsory Jurisdiction to be of no relevance.

Therefore there is enough precedent to establish that the subsequent declaration by Pakistan to have no relevance and moreover the case has been brought to the ICJ under Article 36(1) of the Statute of the ICJ.

Plausibility of the contentions made by India

The Republic Of India contented the following:-

1. The immediate suspension of the death sentence of Mr Kulbhushan Jadhav.
2. Declaration of the military sentence of Mr. Kulbhushan Jadhav to be in violation of the Vienna Convention on Consular relations as well as in defiance of Article 14 of the International Covenant on Civil and Political Rights.
3. To restrain the Pakistani government from executing the sentence given by the military court and,
4. On Pakistan being unable to annul the decision the court to declare the decision as illegal and being violative of International Laws and treaties.

Article 5(a) of the Vienna Convention on Consular Relation provides one of the functions of the consulate is to protect the interests of the sending states and its nationals, body corporate and individuals within permitted limits of international law.

• Article 36 of the same convention provides that consular officers shall be free to communicate with the nationals of the sending state and also the national has the same right of communication.
• Secondly the competent authorities of the receiving state shall inform the consulate of the sending state, when its national is arrested and any communication to the consular post shall be done with any delay.  
• Thirdly sub-clause (c) of Article 36 establishes the right of consular officers have the right to visit a national of the sending state who is in prison, custody or detention and arrange legal representation for him. They also have similar right of visit a national in pursuance of a judgement.

The Islamic Republic of Pakistan seems to have met the obligations arising from 36(a) by notifying the Indian authorities of the arrest and detention of Jadav, however, it did not comply to the provisions of 36(1)(c) of the convention.

• The Commentary to the Convention on Consular relations states that it is mandatory obligation to allow the consular officers of the sending state access to the detainee and the denial of grant of access to Jadhav was therefore in violation of Article 36(1)(c) of the Convention
• Article 14 of the International Covenant on Civil and Political rights states that, “in determination of any criminal charge against him, or of his rights or obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” The Article further states that the charges must be explained to him promptly and in a language he understands and he is to be provided adequate time for preparation of his defence and communicate with a counsel of his choice.
• Pakistani Military courts have gathered a lot of infamy with the ongoing Kulbhushan Jadhav case, having been decried by almost all Global Human Rights body.
• The report of the United Nations Human Rights Commission’s report on the implementation of ICCPR recommended Pakistan to reform its military courts to bring them in conformity with Articles 14 and 15 of the International Covenant on Civil and Political Rights so as to ensure transparency to legal proceedings in criminal matter and also recommended the state to provide the accused, counsel of his own choice and also forbids the state from taking a forced confession. The UNHRC interprets ICCPR to be applicable to even military courts.
• The International Commission of Jurists revealed that” Military courts are neither independent or impartial. The Judges are military officers and still a part of executive. They neither have judicial competence or any legal training, therefore, this raises the question did Kulbhushan Jadhav get a fair trial in the military court.

Therefore the Republic of India under these grounds contends that the judgment of the military court was in violation of the ICCPR and also other principles of natural justice recognized all around the world.

The link between the contentions and the provisional measures

• In view of the above-mentioned contentions, India in its application to the ICJ for the indication of provisional measures was made under great urgency as the statute of limitations for appealing the death sentence ran out in 40 days after the judgement.
• The conviction was on the basis of a confession made in captivity and without consular access and having no confidence that Mr Jadav will seriously be able to challenge the conviction and the sentence
• It was of utmost necessity that the International Court of Justice to suspend the execution of the death sentence as a provisional measure. This application for provisional measure taken to protect the life and liberty of Mr. Jadav, who would otherwise be executed
• this will affect the Court’s ability to grant the relief that India seeks and India will be deprived of the opportunity to vindicate its rights. Hence the application for provisional measures was done.

Enforcement Mechanism Of The ICJ

Dependent On The UNSC

The International Court of Justice has gone a long way in installing faith of the world community in the settlement of disputes and has done wonders in the maintenance of International Peace and Security. Article 94(1) states that “each member undertakes to comply with the decision of the International Court of Justice.” This is based on the premise that all parties shall comply with the decision in good faith. Whereas Article 94(2) provides that “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”

The Veto

The interpretation of the Article 94(2) states that the UNSC ‘may, if deem necessary’ take actions. Here there comes the line of difference between international relations and politics. Jurist say that International law is the interplay of International politics in many ways this is proved when the United Nations Security Council has to enforce the judgment by the ICJ. One of the most notable precedent of UNSC enforcement of a judgement of the ICJ can be seen in the case of Armed Activities in Nicaragua (USA Vs Nicaragua) where the ICJ held the USA accountable for arming of rebels and ordered for repartition. Owing to the enforcement, the United States vetoed the enforcement of the judgment against itself.

Why is the Jadav Case important to Indian Politics?

With India trying to re-establish its footing in International Politics, the Jadav Case provides the perfect fiddle for it. If one looks at it from a neutral point of view, if Pakistan loses the case, and goes on to execute Jadav, that would make the Islamic Republic of Pakistan look bad on the International Sphere. Also if the enforcement mechanism under Article 94 of the United Nations Charter fails owing to a Chinese veto, India gets a chance to gain momentum in its campaign for restructuring of the United Nations Security Council.

The previous government’s failure to secure the release of Sarabjit Singh who was arrested on similar grounds, the current government would be looking to learn from the previous government’s mistake to save the life of an Indian citizen and to establish a precedent and an impression that the Government shall protect its citizens.
And if the ICJ judgement comes out in favour of India, and is enforced by Pakistan, then also its a win-win for the Government of India.

Was approaching the ICJ the way to have gone about it?

The Government of India was notified about the arrest of Mr Kulbhushan Jadhav on grounds of espionage and terrorism, but was not given consular access in pursuance to the Vienna Convention of Consular Relations.

As the death sentence passed by the military court in Pakistan, and all other diplomatic channels failed and it is a bilateral dispute did not necessitate the involvement of a third party to pressure Pakistan into not executing Jadav.

Approaching the ICJ was questioned by few legal experts as it would open the gates for Pakistan taking India to the World Court for the determination on the status of Kashmir, however with the failure of all diplomatic channels between India and Pakistan meant India had no other option.  

Approaching the ICJ was the best path it could have taken. Moreover, the interim measures granted by the ICJ did indeed postpone the execution of Mr Jadav, and hence it can be considered as best recourse for the settlement of the dispute. And if India wins the case and is successful in saving the life of Mr Jadav. it will not only be a moral or diplomatic victory, it would be one where the life of a person was saved.  

Does this open the gates for an ICJ trial on the Kashmir dispute?

A Junior officer for the Foreign Ministry of the Government of Pakistan recently indicated that it might take India to the International Court of Justice on the question of Kashmir. However, the statements were not reteriated by the former Prime Minister Nawaz Sharif or even any senior level office in the ministry.  

India and Pakistan both are bound by the Lahore Declaration and the Shimla agreement to resolve it bilaterally. However, since no bilateral agreement can override the effect of an International treaty or resolution. If Pakistan approached the International Court of Justice for enforcement of the resolutions requires Pakistan to remove the Tribes from the areas of its occupation of Kashmir, and India needs to remove all military personnel from the valley except a force for the defence of Srinagar. Following which a plebiscite is to be held for the self-determination by the people of Kashmir.

So to approach the ICJ means that it has to fulfill the terms of the Resolution first and that would mean pulling out of Pakistan occupied Kashmir which would be strategically illogical from a military perspective. Therefore, if Pakistan takes India to ICJ on the issue of Kashmir, it might just bite more than it can chew.

Conclusion

India and Pakistan have been at loggerheads since 1947. India has been a party to at least 6 ICJ cases out of which 4 of them have been against the Islamic Republic of Pakistan such as the Appeal regarding the Jurisdiction of ICAO in 1971, the Case Concerning the trial of Pakistani POWs among many others. The International Court of Justice now has the responsibility to decide on an issue which may not determine the fate of two nations but the life one human being.  

References

1. Statute of the International Court of Justice, accessed from http://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf at 11:00 AM on 02.02.2018
2. United Nations, Vienna Convention on Consular Relations, 24 April 1963, available at http://www.refworld.org/docid/3ae6b3648.html [accessed 2 February 2018]
3. Press Release, International Court of Justice, accessed from http://www.icj-cij.org/files/case-related/168/19420.pdf at 11:15 AM on 02.02.2018
4. https://thewire.in/135141/icj-india-pakistan-kulbhushan-jadhav/
5. CASE CONCERNING THE APPEAL RELATING TO THE JURISDICTION OF THE ICAO COUNCIL, Judgment of 18 August 1972 accessed at http://www.icj-cij.org/files/case-related/54/5667.pdf at 12:08 PM on 02.02.2018
6. Charter of the United Nations, accessed from https://treaties.un.org/doc/publication/ctc/uncharter.pdf at 12:29 PM
7. UNSC Resolution S/RES/39 (1948) accessed from http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/38(1948)
8. UNSC Resolution S/RES/39 (1948) accessed from http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/38(1948)&referer=http://www.un.org/en/sc/documents/resolutions/1948.shtml&Lang=E
9. https://economictimes.indiatimes.com/news/politics-and-nation/pakistan-indicates-it-could-take-kashmir-issue-to-icj/articleshow/61769983.cms
10. http://www.huffingtonpost.in/2017/06/05/kashmir-issue-must-be-solved-bilaterally-cant-be-taken-to-icj_a_22126371/