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For those who understand public international law and know the relevant facts of the Kulbhushan Jadhav case, the ICJ’s decision to grant India provisional relief in staying the alleged spy’s execution didn’t come as a surprise.
But the critical reaction to it on the media questioning the government’s management of the matter is a result of the stiff nationalist position adopted by our national security institutions, the government, politicians, the media and lawyers alike.
As the case progresses and comes to a conclusion, we may see a far more negative reaction, especially if the final verdict is contrary to the position adopted by the Pakistani state and disseminated uncritically by the media. It could lead to serious consequences. The foremost being that it could lead to a ‘popular’ demand to not respect the final verdict of the court resulting in a general disrespect at a popular level for the international law and institutions.
This can contribute further to Pakistan’s isolationist tendencies.
A previous article, published on Dawn.com, raises some pertinent points reminding us of the possible scenarios which may emerge during the course of different stages of arguments before ICJ, the principle judicial organ of the UN.
In the article, the author points out that despite the relief granted by the court to India in staying the execution of the alleged spy, we must bear in mind five important aspects:
India didn’t win; Pakistan didn’t lose.
Pakistan will continue to argue that the court doesn’t have jurisdiction.
The court cannot take a decision on the death penalty awarded to Jadhav.
Jadhav's status as spy will continue to be part of argument by Pakistan.
ICJ has not decided the main question of consular access
Let us consider all these aspects one by one for further clarification.
India didn’t win; Pakistan didn’t fail
The court hasn’t decided the fundamental question: i.e., whether it can direct Pakistan to allow Jadhav access to India’s consular officers. It is only after detailed arguments that it will determine its jurisdiction and then direct Pakistan to allow consular access. The whole case is about Jadhav’s right or the absence thereof to consular access.
It is true that India hasn’t won the case and Pakistan hasn’t lost it. But is it an accurate portrayal of the court order of 18th May? In order to get a fairer idea, let’s check what the two states argued for.
On May 15, 2017, India argued for an order of the court staying execution of Indian citizen Kulbhushan Jadhav as his execution would cause "irreparable harm".
Pakistan questioned it mainly on the basis that there was no urgency in the matter to pass an order staying the execution as it won’t happen any time sooner than August 2017, while giving no undertaking that it won’t happen before the court passes final verdict.
The court found Pakistan’s argument unacceptable, and the absence of assurance to the effect that the execution won’t happen before the decision of the legal dispute brought before it didn’t help Pakistan.
The court accepted India’s argument and granted stay against Jadhav’s execution. In similar circumstances, the court in an earlier case (Mexico vs. the US 2003) had issued a similar order where it stayed the execution of Mexican nationals who could be executed within months.
It was therefore strange that Pakistan argued, one, that there was no urgency in granting stay in a death penalty case; and two, it failed to assure the court it won’t happen before the final decision of the court.
The failure to give assurance was probably linked to Pakistan’s stand that the court had no jurisdiction to hear the case which is discussed below.
Pakistan will continue to argue that the court doesn’t have jurisdiction.
The author argues that the grant of provisional relief does not mean that the court has found it has jurisdiction in adjudicating the dispute. This is true. But the court has also found that apparently it does have jurisdiction on the basis of the Optional Protocol to the Vienna Convention on Consular Relations, 1963 (VCCR).
India’s case is premised on article 36 of the VCCR, which requires necessary grant of consular access to nationals of all state parties to the convention. In this context, the court refers to article 1 of the protocol which reads as follows:
“Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice 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.”
Both India and Pakistan are parties to the Protocol. It is undeniable. However, Pakistan argues that since Pakistan and India entered an independent bilateral agreement in 2008, therefore the application of the Vienna Convention on Consular Relations 1963 (VCCR) is excluded.
But apparently this does not seem to be the case as there is nothing in the 2008 agreement or anything brought up in Pakistan’s arguments which suggested that such was the case.
In fact, the court notes, in paragraph 43 as referred to by the author, that since no legal arguments have been raised, therefore, the court could not decide the issue at this stage.
While Pakistan is free to raise the question of jurisdiction, it is likely that the court will not agree to this contention as the wording of the 2008 agreement does not by any stretch of imagination leads to the conclusion that the intention of the parties was to exclude application of the VCCR to cases of spies as foreign prisoners.
The court cannot take a decision on the death penalty awarded to Jadhav
This is true that the court may not set aside Jadhav’s death sentence even though there’s such a prayer in India’s application. The reason for this is that the ICJ cannot act as an appellate forum and therefore cannot go into examining the facts of the case and the relevant law on the basis of which Jadhav has been convicted and sentenced.
This will have to be done within the legal framework of Pakistan. But there’s nothing to stop the court from declaring that in case of non-provision of the right to consular access, conviction and conviction and the death sentence of Jadhav would be in violation of international law, because this case is about dispute resolution which would not be possible without determination of rights of the parties.
Jadhav’s status as spy will continue to be part of argument by Pakistan
Pakistan in the hearing for provisional indications argued that Jadhav was a spy, a category of foreign national which was excluded from the scope of the right to consular access granted to foreign nationals under article 36 of the VCCR.
A plain reading of article 36 reveals that there is no such exclusion of spies from being granted consular access. The word spy is not even once mentioned in the convention.
The only exception to the right to consular access is under article 5 of the Geneva Conventions IV - Relative to the Protection of Civilian Persons in Time of War, when in an occupied territory an individual (protected under the Geneva Conventions) is “detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication”.
On a closer examination, this aspect would also appear to be linked to the court’s competence to look into the facts of the case which form basis of the conviction and sentence. If there were to be such an exclusion of spies from the scope of the right to consular access, would it not be the case that the ICJ would have to also find out if the alleged spy was indeed a spy?
If such was the intention of article 36 of the Vienna Convention, it would pose serious challenges to the court’s ability to perform its duties i.e. to resolve legal disputes and determine rights under international treaties. Therefore, this argument appears to be extremely weak.
In view of the foregoing, it may be contended that there is a fair chance that the Jadhav case may be decided quite opposite to Pakistan’s stance adopted before the court at the stage of provisional indications.
It would therefore be appropriate that lawyers and opinion makers while discussing the case bring up all the aspects of the relevant law and facts instead of promoting an uncritical nationalist position.
A nationalist approach to the issue is likely to result in serious adverse consequences which may nurture a political climate in which it may be impossible for Pakistan’s civilian leadership to give effect to the decision of the International Court of Justice. And to give effect to the international court’s ruling is critical to raising Pakistan’s stature among the comity of nations.
