Hassan Aslam Shad |
India called it Pakistan’s victimization of its innocent national, Kulbhushan Jadhav. Pakistan called it the arrest and conviction of a RAW agent and spy who had indulged in terrorism and sabotage within Pakistan. India sought consular access to him. Pakistan denied it. Pakistan’s Military Court (Field General Court Martial) tried, convicted and sentenced Jadhav to death. India approached the International Court of Justice (ICJ). It got a provisional order from the ICJ on May 2017 that stopped Pakistan from executing Jadhav until such time that the ICJ decided the case on merits.
The Court has, however, rejected most of the remedies sought by India, including annulment of military court decision convicting Jadhav, his release and safe passage to India pic.twitter.com/dxyMcHHAYW
— Reema Omer (@reema_omer) July 17, 2019
Yesterday, the ICJ rendered its judgment which brought to a close a 2 years long courtroom battle between the two countries.
This time around, Pakistan chose to fight this battle at the ICJ. I am repeatedly asked whether Pakistan should have gone to the ICJ considering India’s “political clout”? I feel it is an affront to any court – let alone the ICJ – to think that its integrity could be compromised for political reasons.
And if yesterday’s judgment is to be taken at face value, it is an increment lawfare victory for Pakistan and an exoneration of its stance before the world. Yes, Pakistan did lose out on the consular access front (more on that below). Could things have been done differently from a strategy and policy perspective? Perhaps. And this is where Pakistan’s policymakers will need to dispassionately have a relook at things.
ICJ also did not accept India’s argument that the remedy to be granted by the ICJ should take into account Pakistan’s alleged violations of the International Covenant on Civil and Political Rights
But, at the end of the day, Pakistan managed to walk away with the grand prize: ICJ denied India the remedy of annulment or cancellation of Jadhav’s conviction and his repatriation to India. Instead, ICJ ordered that “effective review and reconsideration” by the Pakistani courts is an appropriate remedy for India to pursue. Let this much be clear: this is a huge legal and moral victory for Pakistan no matter what spin is given to it by the Indian media.
So what has the ICJ decided?
Let’s have a look at the relief that India and Pakistan managed to get from the ICJ.
ICJ rejected Pakistan’s contention regarding inadmissibility of India’s application at the ICJ on grounds of India’s abuse of process, abuse of rights and unlawful conduct. The ICJ also rejected Pakistan’s following contentions: Article 36 of the Vienna Convention on Consular Relations (1963) does not apply in “prima facie cases of espionage”; customary international law governs cases of espionage in consular relations and allows countries to make exceptions to the provisions on consular access contained in Article 36 of the Vienna Convention; and that it is the 2008 Bilateral Treaty between India and Pakistan rather than Article 36 of the Vienna Convention, which regulates consular access in the case.
Pakistan’s argument that cases of espionage fall outside the purview of the Vienna Convention was rejected. The ICJ noted that when the Vienna Convention is interpreted in accordance with the ordinary meaning given to its terms in their context and in light of their object and purpose, Article 36 does not exclude individuals suspected of espionage. Similarly, the ICJ rejected Pakistan’s argument that customary international law governs cases of espionage in consular relations.
The ICJ also rejected Pakistan’s contention that the activities indulged in by Jadhav fell within the national security qualification contained in the 2008 Bilateral Treaty. The ICJ observed that the national security exception under the 2008 Bilateral Treaty cannot “displace the obligations” under Article 36 of the Vienna Convention and that if the 2008 Bilateral Treaty was intended to create an exception to Article 36 of the Vienna Convention, the same should have been expressly stated in the 2008 Treaty itself.
And the decision in the #Jadhav Cade is out!
ICJ has ruled in favour of India on merits, affirming Jadhav’s right to consular access and notification
The Court has directed Pakistan to provide effective review and reconsideration of his conviction and sentences pic.twitter.com/DE3dAb9eIv
— Reema Omer (@reema_omer) July 17, 2019
Interestingly, by invoking the Vienna Convention “object and purpose” (protecting the interests of citizens of the sending State in the receiving State, and furthering commercial and economic relations between countries), the ICJ observed that an exception to consular access on national security grounds would render the right to consular access under the Vienna Convention meaningless.
Now, this is the very legal minefield that I had predicted the ICJ would be stepping on in my article a few days back on these pages. Why? Because ICJ has failed to offer cogent and compelling legal reasons as to why the 2008 Bilateral Treaty which is titled “Agreement on Consular Access” ought to have expressly referred in its text to the fact that the parties wished to derogate from Article 36 of the Vienna Convention. What could be more unequivocal an expression of intent than the title of a treaty and its text?
Moreover, the ICJ treating the customary international law debate moot on the basis of the literal reading of Article 36 of the Vienna Convention (and purely on the basis that India and Pakistan did not make declarations at the time of accepting the Vienna Convention) reflects ICJ’s cautious approach of avoiding traversing down a legal slippery slope.
The bigger victory for Pakistan lies in the fact that it fought this battle of ideas at the world’s most prominent Court. Pakistan did not fall into the dangerous trap of avoiding ICJ’s jurisdiction on technicalities
On the consular access point, the ICJ thus held that Pakistan acted in breach of its obligations under Article 36 of Vienna Convention by not informing Jadhav of his rights under Article 36; by not informing India, without delay, of his arrest and detention; and by denying access to Jadhav. The ICJ also noted that these breaches by Pakistan constitute “internationally wrongful acts of a continuing nature” and called on Pakistan to rectify them.
PRESS RELEASE: the #ICJ finds that Pakistan has acted in breach of the obligations incumbent on it under Article 36 of the Vienna Convention on Consular Relations in the Jadhav case (#India v. #Pakistan) https://t.co/wouIE7ZbIL pic.twitter.com/AQCiQlNMDJ
— CIJ_ICJ (@CIJ_ICJ) July 17, 2019
Now moving on to the remedies that India had sought from the ICJ. India had asked the ICJ to adjudge and declare that Pakistan had acted in breach of Article 36 of the Vienna Convention and therefore that the sentence of Pakistan’s Military Court violated the provisions of the Vienna Convention. India had also asked the ICJ to annul the decision of the Military Court and restrain Pakistan from giving effect to the sentence or conviction and to direct Pakistan to release Jadhav and facilitate his safe passage to India.
At a later stage, India introduced an alternative prayer (if in case the principal relief was not granted) to have Jadhav’s trial ordered under Pakistani law before civilian courts with due process. This was a reversal from India’s “all-or-nothing strategy” (i.e. of seeking annulment of conviction and acquittal of Jadhav) possibly after India realized that seeking an annulment of conviction was an ambitious legal overreach.
India also did not manage to convince ICJ that the violation of the Vienna Convention and setting aside of conviction were two interrelated issues. In other words, India’s line of reasoning from day one that the denial of consular access to Jadhav should be grounds for annulment of Jadav’s conviction was not accepted by the ICJ. Tellingly, ICJ bifurcated the issue of violation of the Vienna Convention from the “conviction” issue and noted: “As regards India’s claim based on the Vienna Convention, the Court considers that it is not the conviction and sentence of Jadhav which are to be regarded as a violation of the provisions of the Vienna Convention”.
ICJ also did not accept India’s argument that the remedy to be granted by the ICJ should take into account Pakistan’s alleged violations of the International Covenant on Civil and Political Rights.
— RSIL Pakistan (@rsilpak) July 18, 2019
The ICJ made it clear that the remedy ambit is limited to the Vienna Convention and cannot extend to international human rights treaties. This was India’s failure to rope in international human rights treaties to bolster is claims – something it did at length in both its written submissions and oral arguments.
It, therefore, came as no surprise that India’s remedy of “at least” the acquittal, release and return of Jadhav to India was denied by the ICJ. Consistent with its own previous jurisprudence, the ICJ accepted Pakistan’s argument that review of Jadhav’s conviction and sentence by the Pakistan Military Court is provided for under Pakistani law.
The ICJ noted: the “appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention…”
Pakistan will see this as more than a mere reiteration by ICJ of its own previous jurisprudence i.e. ICJ’s historic approach of deference to domestic legal systems. This was Pakistan’s battle about its narrative and the credibility of its domestic legal system which India had repeatedly challenged as being flagrantly flawed and dysfunctional. ICJ’s ruling of yesterday confirms that India failed on this count.
Perhaps, the bigger victory for Pakistan lies in the fact that it fought this battle of ideas at the world’s most prominent Court. Pakistan did not fall into the dangerous trap of avoiding ICJ’s jurisdiction on technicalities (a point argued by some of our legal experts). As they say, luck favors the brave. Not only did Pakistan courageously fight this battle, it came prepared with its own set of robust counter-arguments.
This case was as much about consular access as it had nothing to do with consular access. It was about consular access only to the extent that India took refuge behind the Vienna Convention to approach the ICJ. But then, the Vienna Convention was India’s gateway for the grand prize, the ultimate remedy: annulment of Jadhav’s conviction. And this is where India realized the legal cul-de-sac from where an about-turn was not possible. This is precisely where Pakistan’s incremental lawfare victory shines bright and it has every reason to celebrate.
Hassan Aslam Shad is the head of corporate and international practice of a leading law firm of Oman. He is a graduate of Harvard Law School, USA with a focus in international law. Hassan has written extensively on topics of law including public & private international law and international relations. Hassan has the distinctive honor of being the first person from Pakistan to intern at the Office of the President of the International Criminal Court, The Hague. He has also represented Pakistan at the prestigious Jean Pictet international law moot court competition. He can be reached at: email@example.com.
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.