Beyond Winners & Losers – Understanding the ICJ Verdict On Kulbhushan Jadhav Case

Recently, the International Court of Justice (ICJ-CIJ) delivered its much-awaited judgment in the Kulbhushan Jadhav case. As expected in a case with India and Pakistan as the contesting parties, nationalist sentiment, – as opposed to a dispassionate assessment of the verdict – motivated much of the reaction to the judgment, with the binary of “winning” and “losing” dominating public discourse. Analysis by Reema Omer.

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Contrary to what has been argued in the media of both countries since the case first began in 2017 – such as how the case was an opportunity for Pakistan to prove India is engaged in espionage and terrorism in Balochistan or for India to prove how Pakistan is engaged in espionage and terrorism in Kashmir – the issue before the International Court of Justice was very different. The Court was only considering the legal question of whether alleged “spies” are entitled to consular access and notification under the Vienna Convention on Consular Relations (VCCR). Pakistan has consistently maintained the position, in public as well as before the Court, that an exception to espionage and terrorism should be read into the treaty, something India has argued has no basis in law.

To cut through the noise, this article clarifies the key issues and relevant laws raised in the case; unpacks the salient points of the International Court of Justice’s judgment; and considers the legal basis of the verdict.

Applicable laws

The applicable treaty, in this case, is the Vienna Convention on Consular Relations, 1963. India and Pakistan are parties to the VCCR and its Optional Protocol.

Article 36(1) of the VCCR, among other things, provides that when a national of a foreign country is arrested or detained, the detainee must be advised of the right to have the detainee’s consulate notified, and that the detainee has the right to regular consultation with consular officials during detention and any trial.

The Optional Protocol to the VCCR gives the International Court of Justice compulsory jurisdiction to try disputes that arise out of the interpretation or application of the treaty. This basis of the International Court of Justice’s jurisdiction under the VCCR is distinct and separate from the generic basis for jurisdiction provided for under Article 36(2) of the ICJ-CIJ Statute, to which India and Pakistan have both submitted a number of reservations.

India approached the ICJ-CIJ under the Court’s jurisdiction stemming from the Optional Protocol of the VCCR, claiming Pakistan had breached its obligations under the treaty in relation to Kulbhushan Jadhav.

Question of admissibility

Pakistan raised a number of objections to the admissibility of India’s complaint before the International Court of Justice. Among other objections, Pakistan argued that India’s claim should not be admitted because India had violated a number of its own obligations under international law, including refusing to “provide evidence” of Jadhav’s Indian nationality by means of his “actual passport in his real name”; failing to engage with Pakistan’s request for assistance in relation to the criminal investigations into Jadhav’s activities; and authorizing Jadhav to cross the Indian border with a “false cover name” in order to conduct espionage and terrorist activities.

India responded to Pakistan’s objections by arguing it had no obligation to cooperate with Pakistan’s criminal investigations; that the right of consular assistance under Article 36 of the Vienna Convention was not dependent on a party’s compliance with any obligation of this kind; Pakistan’s allegations concerning Jadhav’s unlawful activities were unfounded; and Pakistan’s duty to comply with Article 36 of the Vienna Convention was not conditional on its allegations against an arrested individual. Not only did India deny Pakistan’s allegations about Jadhav’s unlawful activities, but it also argued they were not relevant to the question of consular access and notification even if they were true.

Pakistan also argued India had not approached the Court with “clean hands” as India had failed to cooperate in Pakistan’s investigation of Jadhav’s activities; provided him with false documents; and was generally responsible for Jadhav’s espionage and “terrorism” activities in Pakistan.

In essence, Pakistan’s argument was that India could not request consular assistance with respect to Jadhav, while at the same time failing to comply with other obligations under international law.

The Court, however, was not convinced. In the Court’s view, there was no basis under the VCCR for a State to condition the fulfilment of its obligations under Article 36 of the VCCR on the other State’s compliance with other international law obligations. The Court said such a reading of the Convention would “severely undermine the whole system of consular assistance.”

The Court also held Pakistan had not clearly explained the link between the allegations levelled against India and the rights invoked by India on the merits of the case. Pakistan had also not explained how any of the wrongful acts allegedly committed by India may have prevented Pakistan from fulfilling its obligation in respect of the provision of consular assistance to Jadhav. On these grounds, the “clean hands” doctrine did not apply.

The Court, therefore, rejected each of Pakistan’s objections to the admissibility of India complaint and held that it was is admissible.

Are alleged “spies” entitled to consular access under VCCR?

Once the Court held India’s complaint admissible, it examined India’s allegations against Pakistan.

India had alleged “egregious violations of the Vienna Convention on Consular Relations” by Pakistan in connection with Jadhav’s detention, trial and conviction. India was informed of Jadhav’s arrest by Pakistani authorities on 25 March 2016. On 10 April 2017, Pakistan’s military announced Jadhav had been convicted and sentenced to death by a military court for “espionage and sabotage activities against Pakistan.” India’s requests to Pakistan for consular access made multiple times starting from 25 March 2016, were either denied by Pakistan or made conditional upon India’s assistance in the investigation against Jadhav.

In its application, therefore, India alleged that denial of consular access breached Pakistan’s obligations under Article 36(1) of the VCCR.

According to the Pakistani authorities, Kulbhushan Jadhav was involved in espionage and terrorism-related activities in Pakistan. They argued that the VCCR does not apply in cases of individuals “who manifest from their own conduct and the materials in their possession a prima facie case of espionage activity.” Pakistan maintained that the drafters of the VCCR understood that there would be matters pertaining to consular relations that would not be regulated by the Convention, and this included espionage.

In its judgment, the Court noted the object and purpose of the VCCR was to contribute to the “development of friendly relations among nations”, and when interpreted in good faith, in accordance with the ordinary meaning of the terms, it was evident the Convention does not exclude people suspected of espionage. The Court also held it would run counter to the purpose of the treaty if the rights it provides could be disregarded when the receiving State alleges that a foreign national in its custody was involved in acts of espionage.

The Court also considered supplementary means of interpretation, including the Convention’s own travaux préparatoires, to conclude there was no suggestion of consular access not being granted in cases of espionage because of national security concerns.

As a result, the Court dismissed Pakistan’s argument and expressly held that certain categories of people, such as those suspected of espionage, cannot be denied the entitlements granted by Article 36 of the Convention.

Pakistan’s position was not just untenable; it was also dangerous. Making rights pertaining to consular access under the VCCR contingent upon the offence foreign nationals are charged with would have undermined the very purpose of the treaty. It would have allowed States to deny consular access to foreign nationals merely through a particular characterization of their acts.

It should also be noted that under international human rights standards, the right to consular access for foreign nationals is considered part and parcel of the right to a fair trial. The Inter-American Court of Human Rights, for example, has held the right to consular access must be recognized and counted among the minimum guarantees essential to providing foreign nationals the opportunity to adequately prepare their defense and receive a fair trial. While this was not expressly raised in the main judgment, Judge Trindade highlighted it in his separate opinion in detail.

2008 bilateral agreement

Pakistan’s next major contention was that a 2008 bilateral agreement between India and Pakistan on consular relations governs the question of consular access between the two countries – including in the present case – rather than the Vienna Convention on Consular Relations. One of the provisions of the Agreement states that in cases of “arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits.”

Pakistan argued Jadhav’s alleged espionage and terrorist activities bring his arrest squarely within the “national security” exception contained in the Agreement. Pakistan was, therefore, entitled to consider the question of consular access to Jadhav “on its merits” in the particular circumstances of this case.

India responded by saying its claims were based solely on the VCCR, and the existence of a bilateral agreement is irrelevant to the assertion of the right to consular access under the Convention; bilateral treaties cannot modify the rights and corresponding obligations set out in Article 36 of the VCCR; and that nothing in the language of the Agreement suggests that India or Pakistan ever intended to derogate from Article 36 of the Vienna Convention.

Some Pakistani Government officials have been arguing the Agreement was not given any weight by the Court because it was not registered with the United Nations Secretariat: Pakistan and India entered into the Agreement in 2008, but it was registered in May 2017. However, this was not the reason why the Court did not accept Pakistan’s argument that the Agreement should determine Pakistan’s obligations regarding consular access.

Rather, the Court agreed with India’s stance on the inapplicability of the bilateral agreement. It said the 2008 agreement was vague, and did not unequivocally reflect that the Parties had intended to restrict the rights guaranteed by Article 36. It also held that any derogation from Article 36 of the Vienna Convention for “political or security grounds” may render the right related to consular access meaningless.

Finally, the Court said bilateral agreements may “confirm, supplement, extend or amplify” the provisions of the VCCR, but not displace them. This is in line with authoritative interpretation of the VCCR and general principles of treaty law – including Article 41(1) of the Vienna Convention on the Law of Treaties – that State obligations under the VCCR may be enhanced or clarified by bilateral treaties, but cannot be diluted or undermined.

The Court, therefore, held that the Vienna Convention on Consular Relations was applicable in the present case, regardless of the allegations that Jadhav was engaged in espionage activities or the existence of the bilateral agreement between the parties.

Breach of Article 36(1) of Vienna Convention on Consular Relations

The next question before the Court was whether Pakistan had acted in breach of its obligations under the VCCR.

As discussed above, Article 36(1)(b) of the Vienna Convention on Consular Relations provides that the competent authorities of the receiving State (in this case Pakistan) must inform any foreign nationals in their custody of their rights under that provision. Since Pakistan had consistently maintained that the VCCR does not apply to an individual suspected of espionage, the Court inferred from this position that it did not inform Jadhav of his rights under Article 36(1)(b) of the VCCR, and thus concluded that Pakistan breached its obligation to inform Jadhav of his rights under that provision.

Another obligation under the Article 36(1)(b) of the VCCR is to inform the sending State (in this case India) of the foreign national’s arrest or detention “without delay”. Pakistan confirmed that Jadhav was arrested on 3 March 2016 and that it informed the Indian High Commissioner of the arrest on 25 March 2016. Pakistan contended that “immediate” consular access is not required by Article 36(1)(b) of the VCCR. The Court agreed that notification did not have to be “immediate”, but considered that notifying India three weeks after the arrest, in this case, constitutes a breach of the obligation to inform “without delay”, as required by Article 36(1)(b) of the VCCR.

Article 36(1)(c) provides consular officers “shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.” Pakistan argued that Jadhav was allowed to choose a lawyer for himself, but that he opted to be represented by an in-house defending officer. The Court, however, held this does not justify Pakistan’s denial of access to Jadhav by consular officers of India, including to help with his legal representation.

The Court, therefore, found that Pakistan acted in breach of its obligations under Article 36 of the VCCR on three counts: first, by not informing Jadhav of his rights under the Convention: second, by not informing India, without delay, of Jadhav’s arrest and detention; and third, by denying consular officers of India access to Jadhav, which among other things, was contrary to their right to arrange for his legal representation.

Remedies and reparation

Once the International Court of Justice decided that Pakistan was in breach of its obligations under the VCCR, the next question was what was the appropriate remedy for India in the case.

The Court considered Pakistan’s breaches of Article 36 of the VCCR to be  “internationally wrongful acts of a continuing character”, and held Pakistan must inform Jadhav without further delay of his rights under Article 36(1)(b) of the VCCR and also allow Indian consular officers access to him and to arrange for his legal representation.

In addition, India requested a number of relief measures from the International Court of Justice, including a declaration that Jadhav’s military trial and sentence were in defiance of VCCR and basic human rights; annulment of the decision of the military court and restraining Pakistan from giving effect to the sentence or conviction; and a direction to release Jadhav, and to facilitate his safe passage to India. Alternatively, India sought an annulment of the decision of the military court, and for Pakistan to be restrained from giving effect to the death sentence; or a direction that Pakistan takes steps to annul the decision of the military court, and direct a trial compatible with human rights under the ordinary law before civilian courts, after excluding Jadhav’s confession.

Pakistan contended that the reliefs sought by India could only be granted by an appellate criminal court, and since the International Court of Justice had repeatedly and consistently affirmed the principle that it does not have the function of a criminal appellate court, the remedies sought by India were outside of the Court’s jurisdiction.

Pakistan maintained that the appropriate remedy in this case would be, at most, effective review and reconsideration of the conviction and sentence of the accused. India, however, contended that “relief by way of review and reconsideration” is “highly inadequate” as a remedy in the Jadhav’s case.

The Court rejected India’s submission. Consistent with its past judgments in cases of denial of consular access, the Court said it is not Jadhav’s conviction and sentence that are a violation of Article 36 of the VCCR, but “solely certain breaches of treaty obligations on consular access which preceded them.”

The Court also recalled that “it is not to be presumed…that partial or total annulment of conviction or sentence provides the necessary and sole remedy” in cases of violations of Article 36 of the Vienna Convention.

Consequently, the Court directed that as reparation, the appropriate remedy in this case is “effective review and reconsideration” of Jadhav’s conviction and sentence, including, if necessary, by enacting appropriate legislation.

The International Court of Justice also said that it considered a continued stay of Jadhav’s execution to constitute “an indispensable condition for the effective review and reconsideration of the conviction and sentence.” At this point, it is worth recalling that in May 2017, the Court issued an order for provisional measures in response to India’s request, and directed Pakistan to “take all measures at its disposal” to ensure Jadhav is not executed pending the final decision of the Court.

What is “effective review and reconsideration”?

The remedy of “review and reconsideration” has been the main relief provided by the Court in previous cases related to the denial of consular access or notification such as its judgment in the LaGrand and Avena cases.

In Jadhav’s case, the Court left the choice of means of “effective review and reconsideration” to Pakistan. However, it set out multiple factors that Pakistan must take into account when implementing the judgment:

First, Pakistan should ensure respect for the principles of a fair trial is given “cardinal importance” in any review and reconsideration; second, the forum reviewing Jadhav’s conviction and sentence should consider “potential prejudice and the implications for the evidence and the right of defence of the accused” caused by the breach of VCCR obligations; and finally, the Court clarified that clemency appeals before the Chief of Army Staff or the President would be inadequate for the purpose of “effective” review and reconsideration.

It is important to note that the International Court of Justice did not opine on the fairness of the proceedings before military courts, or conclusively determine whether the review of military courts’ proceedings before the high courts would be “effective” in determining whether breaches of the VCCR resulted in actual prejudice in Jadhav’s trial.

What next?

The International Court of Justice’s judgments, where the Court is exercising contentious jurisdiction as it was in this case, are final and binding on the States that are party to the case, in respect of the particular case being decided. (The Court may also render advisory opinions under Article 96 of the UN Charter, but that is not relevant to this case.)

Article 94(1) of the UN Charter states “each member of the United Nations undertakes to comply with the decisions of the International Court in any case to which it is a party.”  Article 94(2) provides “[i]f 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.”

Pakistan has accepted the Court’s judgment, which is a welcome step. However, one hopes that this case encourages both parties to the case, Pakistan and India, to start taking their international commitments more seriously, and their media to start taking interest in the countries’ international legal obligations beyond this one high-profile case.

Reema Omer is a Legal Adviser for the International Commission of Jurists (ICJ)