India has approached the International Court of Justice seeking to stay the execution of Kulbhushan Jadhav. India has raised its claims before the court under Article 36 of the Vienna Convention on Consular Relations, which grants the right of consular access to a foreign national “who is in prison, custody or detention” and the optional protocol to the VCCR, which establishes the ICJ as the venue for resolving disputes under the VCCR. To raise its claims, India has relied upon the court’s compromissory jurisdiction under Article 36(1) of the statute of the ICJ which allows the latter to exercise its jurisdiction on the basis of a ‘special agreement’ — in this case the optional protocol.

The court’s jurisdiction in such cases is, however, limited solely to the interpretation or application of the special agreement. The court cannot decide on matters beyond the scope of the concerned treaty, and as Article 36 of the VCCR only deals with communication and contact with nationals of the sending state it does not impact convictions for espionage under domestic or international law at all. Further, Pakistan is a dualist state, wherein any international treaty signed can only be given effect domestically once it has been codified in the corpus of domestic laws through implementing legislation. Consular access has not been a right explicitly guaranteed under the Diplomatic and Consular Privileges Act, 1972.

Further, India’s claims rely upon a peacetime conception of international law, wherein consular officials are guaranteed access to “nationals of the sending state” tried or convicted of ordinary criminal offences. In Jadhav’s case, however, this legal framework seems inapplicable — as a spy he engaged in activities including fomenting insurgency and attempting to destabilise southwestern Pakistan. His activities would fall within the purview of International Humanitarian Law, the lex specialis or specific law governing the conduct of hostilities between nations.

Pakistan is well within its rights to try and sentence Jadhav under its domestic laws for espionage.

The Geneva Conventions provide much of the substance of IHL. Within this framework the Geneva Convention IV of 1949 is of particular significance, and relates to the treatment of non-combatants in times of hostilities. As per Article 5 thereof, when such a non-combatant is detained as a spy he forfeits his rights of communication under the convention. While such a person must, as per Article 5, be treated with humanity and has the right to a fair trial, there is nothing under IHL which prevents an individual from being sentenced to death for espionage.

IHL also draws a clear distinction between those engaged in hostilities and those engaged in espionage. This principle is enshrined in Additional Protocol I (AP I) to the Geneva Conventions, reflecting a long-established principle of international law present in earlier international legal instruments. Combatants who adhere to IHL principles are, if captured, immune from prosecution for acts committed while engaging in hostilities. This, however, does not apply to those engaged in espionage: as per Article 46(1) of AP I any member of the armed forces of a party to the conflict who falls into the power of the other party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy. Instead, the requirements under Article 75 of AP I are for humane treatment and a fair trial. In this light, therefore, Pakistan is well within its rights to try and sentence Jadhav under its domestic laws for committing espionage.

While Jadhav’s activities were hostile acts, inimical to Pakistan’s national security and stability, even if one were to assume that the peacetime regime of international law applied, India’s claims before the ICJ would remain problematic. India’s declaration to the compulsory jurisdiction of the ICJ under Article 36(2) of the ICJ statute ousts the jurisdiction of the court on matters relating to actions taken in self-defence or in resistance to aggression.

As per the well-established international law principle of reciprocity, the caveats India incorporated into its own declaration are also exercisable by Pakistan. The court will thus have to determine whether exercising compromissory jurisdiction would result in a de facto exercise of compulsory jurisdiction in areas over which it lacks jurisdiction. The dispute revolves around the actions of Jadhav, an individual tried and sentenced by a competent court as a spy and saboteur, and thus necessarily falls within the purview of “actions taken in self-defence or in resistance to aggression”.

Furthermore, even if the court decides that it has jurisdiction in this case it is highly unlikely it will establish admissibility as all local remedies have not yet been exhausted; even if the case reaches the merits — and India is successful — a determination of a violation of consular access still has no bearing on the illegality of Jadhav’s actions or the nature of his awarded punishment as such are beyond the scope of the VCCR.

Jadhav’s situation, while peculiar, is not entirely without precedent. In Medellin v. Texas the accused was a Mexican national tried and sentenced to death by the courts of Texas, despite Mexico being denied consular access to him. Following his appeal, the US Supreme Court — upholding Medellin’s sentence — held that even if a treaty constitutes an international obligation it is not binding under domestic law unless the treaty is self-executing or the legislature enacts the necessary implementing legislation.

The court also held that the ICJ’s decisions were nonbinding under domestic law and that, without authority from the legislature or the constitution, the head of state could not unilaterally enforce international treaties or ICJ decisions. While proceedings were under way before US domestic courts, Mexico moved the ICJ on much the same grounds as India has —ie denial of consular access to the accused. And while the ICJ finally held in favour of Mexico, the courts of the US nonetheless asserted the supremacy of domestic law over the pronouncements of the ICJ and the VCCR.

Sikander Ahmed Shah is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums.Abid Rizvi is an expert on international law.

Published in Dawn, May 13th, 2017