Reflections on the International Court of Justice Decision in the Jadhav Case (India v. Pakistan): Part I

[Raphael Schäfer & Kanad Bagchi are research fellows at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg Germany. This is the first part of a two-part post.]  

As the International Court of Justice (ICJ/Court) began to hand down its decision on the Jadhav case, it became almost certain that the ruling will be on predictable terms. On one hand, indeed the judgement confirms conventional wisdom concerning several aspects of international law and procedure such as, the Court’s narrow jurisdiction, its extent of review and its limitations concerning remedies. On those counts, the Court surely did not disappoint. That said however, given that the Jadhav case involved issues that the Court had not previously confronted, one finds particular instances where the Court while treading cautiously, nonetheless remained trenchant and while being conventional, clearly displayed a certain readiness to question head on, the domestic circumstances under which its order would be implemented.

While much of the factual background still remains contested between the parties, what the Court takes for certain is that Mr. Jadhav, an Indian national, previously an officer in the Indian Navy, was arrested by Pakistani authorities, tried and eventually sentenced to death on 10 April 2017 by a military court in Pakistan on account of “involvement in espionage and terrorism activities” (para 21). During this period, several notices from the High Commission of India in Islamabad to the Pakistani authorities requesting consular access to Jadhav was denied. Additionally, Pakistan through successive communications to the Indian’s High Commission, made it a condition for consular access, India’s assistance in “obtaining evidence, material and record for the criminal investigation of Mr. Jadhav’s activities. (para 27)” Under those circumstances and in the backdrop of Jadhav’s death sentence, India approached the Court alleging a violation, inter alia, of the Vienna Convention on Consular Relations (VCCR) and for consequent remedies arising out of such breach. Having previously indicated provisional measures on May 15, 2017 staying the execution of Jadhav, the ICJ delivered its final decision comprising the question of jurisdiction, admissibility and substantive legal violations on 17^th July 2019.

Briefly on Jurisdiction and Admissibility

The question of jurisdiction and admissibility of the claim need not detain us for too long, except to note that while the Court confirmed its jurisdiction based on Art. 36, paragraph 1 of the ICJ Statute read with Art. I of the Optional Protocol to the VCCR, it expressly excluded from its purview, questions of violation of ‘human rights’ of Jadhav, as alleged by India in its pleadings. Arguing that while the Court is at liberty to take “into account other obligations under international law” jurisdiction under Art. I of the Optional Protocol limits the Court’s enquiry primarily to the question of consular relations (para 36). That said however, later in the decision, although not expressly, the Court does bring back the question of human rights in a different form. We will elaborate on this point later. 

In similar vein, the Court rejected Pakistan’s objections to admissibility of India’s Application finding that there was neither an abuse of legal process, an abuse of rights nor any unlawful conduct on the part of India in bringing its claim before the Court (para 44-50, 54-58, 61-65). While it was already established at the stage of provisional measures that there was considerable uncertainty as to when Jadhav’s appeal would be heard or when he might be executed, it was equally remote as to how India’s noncompliance with Pakistan’s request for evidence assistance would have prevented the latter in fulfilling its obligations under the VCCR. In essence, the Court was neither impressed by the argument of ‘[un]clean hands’ nor with the dictum on “ex turpi causa non oritur actio.”

On the Applicability of VCCR

Having established its jurisdiction and satisfied itself of the admissibility of the Application, the Court in a next step had to consider the applicability of the VCCR and especially Art. 36 thereof. Recall that Art. 36 contains the genus of obligations relating to consular relations, in particular, the sending state’s right to ‘communicate’ and ‘have access to’ its own nationals, the right to be informed ‘without delay’ of any arrests or detention of a national of the sending state and finally the right of consular officers to ‘visit’ a national of the sending state in prison. If Pakistan succeeds in showing that either the VCCR or more specifically, Art. 36 is inapplicable in the present circumstances, for one reason or the other, then the whole question of violation of consular relations would not arise.

Pakistan put forth a threefold set of arguments before the Court, stating first that, Art. 36 and the rights appended to it is inapplicable in cases of individuals who are either suspected or convicted for activities related to ‘espionage’. That Art. 36 excludes from its scope of obligations situations that concerns national security and with respect to persons who may pose a threat to such security. Second, in line with the above, Pakistan claimed that it is in fact, the special agreement on Consular Relations entered into by the parties in 2008 (2008 Bilateral Agreement) that was applicable as opposed to the VCCR. That the 2008 Bilateral Agreement expressly allows both parties to judge “on its merits” individual cases of arrest or detention that are made on “political or security grounds”. Lastly, the present situation is governed by Customary International Law (CIL) that governs the present situation allowing Pakistan to carve out certain cases from the purview of Art. 36 VCCR.

It is here that things start to get interesting. Remember that in neither of its previous decisions (LaGrand & Avena), the Court was confronted with a situation where the persons denied consular rights, were accused of espionage or terrorist activities impinging on the national security of the receiving state. Therefore, although a bit weak, the argument of espionage as an exception to Art. 36 was in fact new and given the uncertainty in the literature concerning the legality of espionage activities under international law, did carry some concern. The Court, however, was unmoved and argued that neither the object and purpose, the ordinary meaning nor the travaux préparatoires of Art. 36 VCCR can be read as excluding from its scope situations where persons concerned have been charged with ‘espionage’ (para 72-86). Moreover, pouring over the discussions on Art. 36 VCCR that transpired during the discussions of the International Law Commission in 1960 and during the United Nations Conference on Consular Relations held in Vienna in 1963, especially on the meaning and purpose of the words ‘without delay’, the Court stated that it was never intended to exclude cases of ‘espionage’ from the VCCR. Here the Court had in mind the unfortunate, but not unforeseeable situation where states disregard their obligations under the VCCR simply by virtue of indicating a certain category of persons as involved in acts of espionage. And the Court said so in no uncertain terms.

Concerning Pakistan’s argument of an alleged espionage exception under customary international law, the Court recalled the preamble of the VCCR which states that “the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention.” However, the Court saw “the question of consular access to, and communication with, nationals of the sending State” expressly regulated by Art. 36 without providing any exception in cases of espionage. As neither India nor Pakistan submitted any reservation or declaration to Art. 36 in this regard, the Court did “not find it necessary to determine whether, when the Vienna Convention was adopted, there existed the rule of customary international law that Pakistan advances” (para. 90).

The 2008 Bilateral Agreement on the other hand, the Court argued had to be interpreted in the light of Art. 73, paragraph 2, of the Vienna Convention on Law of treaties (VCLT) which allows states to conclude subsequent agreements for the purposes of “confirming or supplementing or extending or amplifying the provisions thereof”. Therefore, the 2008 Bilateral Agreement, could not have provided for any set of obligations that would in any manner dilute the guarantees under VCCR. This was further confirmed through a reading of the object and purpose of the 2008 Bilateral Agreement “desirous of furthering the objective of humane treatment of nationals” which clearly pointed to the conclusion that the parties had not intended and in fact, could not have intended to contract out of the VCCR (para 91-98).

Violations of Art. 36 of VCCR

Once the applicability of the VCCR was established, the Court moved swiftly in finding Pakistan in violation of its obligations under Art. 36 in as much as Jadhav was neither informed of his rights to consular access (Art. 36 (1) (b)) while preventing India from gaining access (Art. 36 (1) (a) or visiting (Art. 36 (1) (c) him in prison. Moreover, the Court also held that despite having ascertained the nationality of Jadhav, Pakistan failed to inform India about the former’s arrest and detention ‘without delay’, noting a gap of three weeks between Mr. Jadhav’s arrest on 3 March 2016 and the notification made to India on 25 March 2016 (para 102-119).

One sticking point that arose out of Pakistan’s submission was whether the former could make India’s rights under the VCCR contingent on granting assistance to Pakistan in relation to the investigation and prosecution of Jadhav. Pakistan seemed to argue that by not assisting the domestic criminal investigation of Jadhav, India violated its own obligations arising out of general international law and in particular Security Council resolution 1373 (2001) and thus could not enlist another state to remain committed to its own obligations. The Court however, summarily dismissed Pakistan’s argument primarily on the ground that the VCCR “sets forth rights both for the State and the individual which are interdependent” and therefore cannot rest on another state’s compliance with other international law obligations. Indeed, there was much precedent before the Court on this specific issue.