Kulbhushan Jadhav case: Despite ICJ hearings, India’s diplomats will have to fight the real battle

On May 8, India instituted proceedings against Pakistan in the International Court of Justice – the principal judicial organ of the United Nations. New Delhi accused Pakistan of “egregious violations of the Vienna Convention on Consular Relations” for the manner in which it has detained and tried Kulbhushan Jadhav, who has been sentenced to death by a military court in Pakistan.

Pakistan accuses Jadhav of being a spy. India claims that he was kidnapped by Pakistani forces while in Iran on a business.

Both parties presented their cases to the Court in The Hague on Monday.

In order to assess the strengths and weaknesses of India’s case against Pakistan, the best place to start is the provisions of the Vienna Convention and the manner in which they have been interpreted by the ICJ.

Consular access

Under Article 5 of the Vienna Convention, India’s consular officials have the right to protect the interests of Indian nationals in Pakistan within the limits of international law. Article 36 also guarantees India’s consular officials the right to communicate with any Indian national who has been arrested by Pakistan. Furthermore, Pakistan has the obligation to inform India’s High Commissioner without delay that a national of the country has been arrested or committed to prison or to custody pending trial or is detained in any other manner.

Indian consular officers also have the right to visit any Indian national 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 Indian nationals following a trial or judgement, which in the case of Jadhav is the decision of the military court in Pakistan. The fact that none of these obligations have been met by Pakistan, despite repeated requests for consular access by India since March 2016, is a clear violation of the Vienna Convention’s provisions.

During Monday’s oral hearing at The Hague, India’s representatives at the ICJ argued that by repeatedly denying Jadhav consular access, Pakistan was in direct violation of Article 36, whereas Pakistan contended that India had “done nothing” to establish that Jadhav was an Indian national and he was therefore not eligible for consular access. However, any such argument should be rejected by the ICJ when the case is argued on the merits as Pakistan’s entire case is based on the fact that Jadhav is an “Indian” spy.

Worryingly, a detailed hearing on the merits of the case is unlikely to take place anytime soon and there is a possibility that Pakistan might execute Jadhav before the hearing. It is for this reason that India has asked the ICJ to indicate what are known as “provisional measures” and instruct Pakistan to refrain from carrying out Jadhav’s sentence.

Jurisdiction and provisional measures

Pakistan, however, has argued that the ICJ cannot indicate provisional measures as it does not have the jurisdiction to adjudicate on Jadhav’s case which concerns a criminal offence. In any event, the ICJ has held in the case of LaGrand that 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.

However, the onus is on a country like India which is asking for provisional measures to demonstrate that the provisions it is relying on afford a basis on which the jurisdiction of the Court might be founded. Article I of the Optional Protocol to the Vienna Convention, which India is invoking as the basis of ICJ’s jurisdiction in this case, is worded as follows:

  “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the ICJ 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”.  

What this means is that, as both India and Pakistan are parties to the Vienna Convention and to its Optional Protocol, the ICJ is likely to find that it has the jurisdiction to adjudicate on the issues in dispute between the two countries. Even if the ICJ were to exercise is jurisdiction and order provisional measures directing Pakistan not to executive Jadhav, there is no guarantee that he will not be executed.

In the case of Paraguay v. United States, Angel Francisco Breard was charged, tried, convicted of culpable homicide and sentenced to death by a court in the US State of Virginia in 1993, without having been informed of his rights under Article 36. On April 9, 1988, the ICJ, exercising its power to order provisional measures, asked the United States to ensure that Breard was not executed pending a final decision on his case by the court.

Despite the fact that Breard had not been advised by the arresting officers of his right to confer with Paraguayan consular officials – a clear and undisputed violation of Article 36 of the Vienna Convention – he was executed by the State of Virginia on April 15, 1988, after the U.S. Supreme Court ruled that a violation of the Vienna Convention should not lead to a reprieve for a killer. If Pakistan’s arguments before the ICJ are anything to go by, they could also adopt a similar tack and ensure that Jadhav is sent to the gallows.

Voluntary compliance

On the basis of the ICJ ruling in Avena, it would appear that the ICJ will most likely find in India’s favour and rule that Articles 5 and 36 of the Convention were in fact violated. The ICJ held that “by not notifying the appropriate Mexican consular post without delay of the detention of 49 Mexican nationals and thereby depriving the United Mexican States of the right, in a timely fashion, to render the assistance provided for by the Vienna Convention to the individuals concerned, the United States of America had breached its treaty obligations”.

The US acquiesced to the jurisdiction of the ICJ and provided written guarantees to the Court that it would, by “means of its own choosing”, review and reconsider the convictions and sentences of the Mexican nationals. The US also assured the United Mexican States that there would no repetition of such conduct or breaches of the Convention in the future. A similar outcome is the best India can hope for, though it is unlikely to be enough to save Jadhav.

Although India has asked the ICJ to direct Pakistan to release Jadhav forthwith, this is likely to beyond the Court’s remit. The ICJ will probably restrict itself, like it did in the case of Avena, to ordering the Pakistan government to review and reconsider Jadhav’s death sentence. If Pakistan decides to ignore the ICJ’s provisional measures and/or its final ruling, there is no mechanism at the ICJ’s disposal to ensure the enforcement of its decision and it will be up to Pakistan to choose whether it complies.

Although Article 94 of the United Nations Charter mandates that countries which are a party to a case before the ICJ must implement its rulings, they are more often than not ignored by sovereign nations. In the case of the Paraguayan national Breard, the US government was powerless to stop the Governor of Virginia from carrying out the execution as the ICJ’s ruling was not legally binding on him and issued a formal letter of apology to the Paraguayans for failing to ensure compliance with the Court’s provisional measures order.

One can safely say, therefore, that Kulbhushan Yadav’s saviours will not be India’s lawyers at the ICJ but the nation’s diplomats who will have to engage with their counterparts from Pakistan and negotiate his release. A failure to do so at the earliest will mean that Kulbhushan Jadav, like Sarabjit Singh before him, will become yet another casualty of geopolitical brinksmanship.

Abhishek Sudhir is the founder of Sudhir Law Review, a legal education website.