Question at The Hague

The International Court of Justice must take a call on whether bilateral agreements override the Vienna Convention while deciding India-Pakistan face-off .

Written by Chintan Chandrachud | Published:May 18, 2017 12:07 am
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Any contest between India and Pakistan is likely to capture eyeballs. The difference on Monday was that this contest took place not in the Eden Gardens or the Gaddafi Stadium, nor even at the Edgbaston (which will play host to a Champions Trophy game next month). Instead, after a hiatus of close to 18 years, the two nations once again found themselves in the International Court of Justice at The Hague. On this occasion, India claimed that Pakistan had breached its international law obligations by refusing consular access to Kulbhushan Jadhav, who has been sentenced to death on charges of espionage and terrorism.

The events that gave rise to this case are well-known. India and Pakistan agree that Jadhav, an Indian national, was arrested by Pakistani officials last year. That is where the agreement ends. India claims that Jadhav is a former naval officer, who was running a business in Iran from where he was kidnapped and shown to have been arrested in Balochistan. Pakistan alleges that Jadhav is a serving naval officer, who was tasked by the Indian intelligence agencies to destabilise Pakistan and was arrested in Balochistan. Jadhav was denied consular access despite over a dozen requests by Indian authorities in the weeks and months after his arrest.

While the hearing on Monday was devoted to India’s application to prevent Pakistan from escalating the dispute by executing Jadhav, it offered some valuable glimpses into Pakistan’s expected line of defence going forward. Pakistan has (and will continue to) strongly contested the jurisdiction of the Court to decide this case. Its argument runs like this: In 2008, the two nations entered into a bilateral agreement on consular access, which modifies their obligations under the Vienna Convention. Unlike the Vienna Convention, this bilateral agreement does not provide for the submission of disputes to the International Court.

For the time being, the International Court need only be satisfied that it has a prima facie basis for jurisdiction to direct Pakistan not to execute Jadhav for the duration of the proceeding. There is no outright contradiction between the bilateral agreement and the Vienna Convention, suggesting that the scales may tip in India’s favour in the short-term. Yet, when it comes to the court making its ultimate decision, this issue may not be as easy to resolve. The bilateral agreement provides, somewhat ambiguously, that for arrests made on “political or security grounds”, the state may “examine the case on its merits”. Pakistan will no doubt argue that this effectively overrides the Vienna Convention’s obligation to provide consular access in national security cases, and enables it to deny any consular access to Jadhav.

India’s response is, therefore, likely to become the lynchpin of this case. First, it could argue that this provision of the bilateral agreement should be read narrowly since it could never have been the intention of the parties to enter an agreement that promotes the “objective of humane treatment”, while, at the same time, eroding existing safeguards. Second, even if the bilateral agreement allows countries to deny consular access in cases involving security, it surely cannot have been the intention that they could simply label any case with the “s” word and deny all consular access. In this scenario, Pakistan would be put to the test of demonstrating, through hard evidence, why Jadhav’s case genuinely falls within this characterisation.

There are also indications that Pakistan will argue that its denial of consular access is linked with India’s refusal to co-operate in the investigation. Moreover, in a press statement issued last month, the foreign affairs minister of Pakistan claimed that India has similarly denied consular access to many Pakistani nationals over the years. The strength of these arguments will ultimately depend upon whether Pakistan successfully convinces the Court that the bilateral agreement offers it discretion to deny consular access in cases of national security.

If the Court accepts the argument, then it is left with little choice but to hold that a clause that permits a state to withhold consular access entirely would naturally also permit it to withhold such access conditionally. But, if the Court decides that the provisions of the Vienna Convention apply, then these arguments collapse spectacularly. The right of consular access under the Convention is broadly-framed, and the Convention simply does not permit the right to be conditioned on good behaviour.

However, beneath the legal complexities of whether or not the bilateral agreement overrides the Vienna Convention lie a catalogue of procedural irregularities. Pakistani authorities took two weeks to register an FIR after Jadhav’s “confessional video statement” was first recorded. His confession was recorded before a magistrate only several months later. Most significantly, Pakistan has, upon its own admission, sentenced Jadhav after just four days of hearing. It is paradoxical to suggest, on the one hand, that Jadhav was convicted based on credible evidence beyond his “confession”, but, on the other hand, that his trial was completed in a matter of days. For any legal system to seek to conclude a trial involving multiple charges of terrorism within days is highly ambitious.

Thus, while the law is more finely balanced than we may have imagined at first glance, the equities clearly lie on this side of the border.

The writer is an associate at Quinn Emanuel Urquhart & Sullivan LLP, London

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