The Kulbhushan Jadhav case is not the first time that the International Court of Justice is faced with a case involving India and Pakistan, but it marks the first time when a dispute between the two neighbours is likely to be heard on merits of the case.

The first time that the ICJ had to decide an India-Pakistan matter was in 1971. Pakistan had complained to the International Civil Aviation Organisation claiming that India had breached the International Civil Aviation Convention and the International Air Services Transit Agreement. India appealed to the ICJ claiming that the Organisation’s Council had no jurisdiction to decide Pakistan’s complaint. By 14-2 votes, the ICJ dismissed the Indian appeal and determined that the Organization’s Council did have the jurisdiction to hear Pakistan’s claim. The matter before the Organization was dropped by both countries in 1976 because, after the formation of Bangladesh, Pakistan no longer required overflight rights over Indian territory.

The second occasion when the ICJ was faced with an India-Pakistan matter was also in relation to the Bangladesh war. In 1973, Pakistan brought a case to the ICJ alleging that India’s proposed transfer of 195 Pakistani Prisoners of War held by India to Bangladesh for war crime trials was illegal. India contested the jurisdiction of the ICJ over the case but the ICJ never had an opportunity to pass any orders since the case was withdrawn when the two countries signed the New Delhi Agreement in 1973.

The most recent case was the so-called Atlantique Incident of 1999 when Pakistan dragged India to the ICJ after India shot down an Atlantique aircraft of the Pakistan Navy. Represented by the then attorney general of India, Soli Sorabjee, India effectively presented its case that it has filed reservations to ICJ’s jurisdiction under Article 36(2) of the Statute of the ICJ in matters involving members of the Commonwealth. The ICJ accepted India’s arguments and dismissed the case for lack of jurisdiction since Pakistan is a member of the Commonwealth and had filed that case under Article 36(2).

However, in the present case, India has invoked jurisdiction of the iCJ under Article 36(1) which relates to treaties that provide for compulsory jurisdiction of the ICJ. It is unlikely that Pakistan would be able to argue lack of jurisdiction as both India and Pakistan have already ratified the Optional Protocol to the Vienna Convention on Consular Relations, which provides that any dispute in relation to this Convention shall be subject to the compulsory jurisdiction of the ICJ.

Consular access cases

While the ICJ will have to rule on merits of India’s claims regarding the violation of the Vienna Convention on Consular Relations, in the past similar cases have not always succeeded in saving the lives of the individuals on death row.

In 1998, Paraguay brought proceedings against the United States since Paraguayan national Angel Francisco Breard had been sentenced to death in the state of Virginia without being allowed consular assistance from Paraguay during his trial. The ICJ passed an order on provisional measures stating,

“The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings…”

But Breard was executed nonetheless before the ICJ hearing on merits, and Paruguay dropped the proceedings after the execution.

Similarly, ICJ passed provisional measures that Walter LeGrand, a German national, not be executed pending final decision just 24 hours before he was scheduled to be executed in the US state of Arizona. Walter LeGrand was executed nonetheless and ICJ in its final judgement said that the United States had violated the VCCR as well as the order on provisional measures.

The most recent case involving VCCR has been the Avena case brought by Mexico against the United States where the ICJ ruled that the United States had violated the Vienna Convention on Consular Relations by not allowing consular access for 51 Mexican nationals and directed:

“… United States of America shall provide, by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention...”

In response President Bush issued a memorandum asking the state courts to review the convictions of the persons covered by the Avena case. However, the US Supreme Court in Medellin v. Texas ruled that neither the ICJ judgement nor the President’s memorandum constituted directly enforceable federal law that preempts state law since the UN Charter and the Statute of the ICJ are not self executing treaties. The US Supreme Court thus held that the ICJ judgement was not directly enforceable in the local legal system of the United States without specific domestic legislation to that effect.

While the US Supreme Court decision effectively left the convicts with no legal remedy, Brad Henry, the Governor of the State of Oklahoma used his pardoning power to commute the death sentence of Osvaldo Torres, one of the Mexican nationals covered in the Avena decision of the ICJ who was on the death row in Oklahoma, to life in prison without parole.

Thus, while there have been successful claims at the ICJ regarding violation of the Vienna Convention on Consular Relations in the past, it has failed to bring a reprieve to the accused persons in whose regard the cases were brought. However, those cases were in relation to persons convicted by state judicial systems in the United States. In Kulbhushan Jadhav’s case, the tribunal which convicted him was a military tribunal, which is presumably under direct control of the Pakistan federal government, unlike a provincial court.

In India’s matter, as of now the ICJ has only sent an urgent communication to Pakistan and has scheduled a public hearing on provisional measures for May 15, 2017. It remains to be seen if Pakistan abides by any provisional measures or final orders that may be passed by the ICJ to either delay the execution or to review the proceedings against Jadhav in the light of violation of the Vienna Convention on Consular Relations.