Hope at The Hague, and many obstacles as well

For India to turn to The Hague marks an almost seismic reversal of policy.

Written by Praveen Swami | Published: May 11, 2017 1:54:33 am
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As the International Court of Justice at The Hague prepares to hear India’s appeal for the life of Naval officer Kulbhushan Jadhav, some television channels have marketed the move as the next best thing to a daring prison break. However, courtrooms at The Hague have often proved poor refuge for men on death row.

The Case Concerning Avena and Other Mexican Nationals, brought by Mexico against the United States of America in 2008, contains The Hague’s key statement of the legal principles on consular access that will govern the Jadhav case. In Avena, Mexico sought justice for 54 of its citizens on death row in the United States, saying they had, like Jadhav, been denied consular access. It won — but the people it fought for lost.

How the Avena case played out, and the body of law that emerged from it, can help understand what India can hope to gain — and the many obstacles that will lie ahead, even if it succeeds.


For India to turn to The Hague marks an almost seismic reversal of policy. In 1972, the court held against India’s closure of its airspace for flights between East and West Pakistan, following the hijacking of a flight by Kashmiri secessionists. The issue was not of material consequence, since Bangladesh had been liberated by then, but New Delhi became wary of opening the floodgates to international litigation on India-Pakistan issues. In September 1974, External Affairs Minister Swaran Singh gave The Hague a declaration saying India would no longer accept its jurisdiction in 10 specified kinds of situations.

Three of those, Pakistan’s lawyers could argue, are potentially pertinent to the Jadhav case: “disputes with the government of any State which is or has been a Member of the Commonwealth”; “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence” and the like; “disputes in regard to which the parties to the dispute have agreed”.

India will try to argue that the Jadhav case does not meet any of these three clauses, and instead concerns the human rights of an individual, which are protected by international law. India and Pakistan are both signatories to the Vienna Protocol on Consular Relations, 1963, which mandates that consular officials of any country “shall have the right to visit a national of the[ir] sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation”.

For its part, Pakistan’s exemptions are much more modest — and the country might be expected to welcome India’s turn to The Hague as opening the door for its own grievances. In 1999, New Delhi had successfully persuaded The Hague it had no jurisdiction to hear Islamabad’s complaint over the shooting down of a Pakistan Air Force Breguet Atlantic surveillance plane.

But the country also has to think hard about whether opening the door serves its own interests: the case could force it to let Jadhav off the hook, a domestically-unpopular decision, and also open the floodgates to cases on troubled Balochistan and the North-West.

It is also possible that Pakistan might push for India to exhaust domestic legal avenues before approaching The Hague, a well-established principle in international law. Should that argument succeed, the case might be put on hold while proceedings shift to Pakistan’s Supreme Court.


But if The Hague does hear Jadhav’s case, the record isn’t heartening. The first major case it heard was in 1999, against the impending execution of Walter Bernhard LaGrand — sentenced, along with his brother Karl-Heinz LaGrand, for a murder that took place during a bungled bank robbery in Marana, Arizona. Karl LaGrand was executed in February 1999, in spite of energetic efforts to seek clemency by German diplomats and parliamentarians. Following this, Germany moved The Hague, hours before the scheduled execution of Walter LaGrand, seeking a provision order.

The Hague complied with Germany’s request, just as it has done in Jadhav’s case — but the United States Supreme Court refused to enforce this provisional order, with the country’s Solicitor-General arguing that International Court of Justice provisional measures are not legally binding. Walter LaGrand was executed on March 3, 1999.

However, The Hague did take one significant step forward in the litigation following the execution: not only did states have the right to attend to their nationals when they were arrested overseas, those citizens also had the right to require this assistance. Put another way, consular access was part of the wider set of human rights.

In 2003, Mexico tested these principles by filing the Avena litigation. Here, The Hague held that the United States had breached its Vienna Protocol obligations by not informing the nearest Mexican consular outpost of the arrest of its citizens.

President George W Bush agreed in 2005 to “review and reconsideration” of the cases by courts, to see if defendants’ rights had been jeopardised by lack of consular access. However, the United States Supreme Court struck down his position 3 years later, saying international treaty obligations could not override domestic law or the Constitution.

The end result has been grim: even though important international-law principles have been established, the prisoners for whom Avena was brought benefitted little.

The three cases to which The Hague paid the most attention are discomfiting. Roberto Moreno Ramos has lost all his appeals; he awaits an execution date. Osvaldo Torres Aguilera’s death sentence was commuted to life in 2004, in proceedings unrelated to Avena, after evidence surfaced that he may not have fired the shots that killed the victims of his double murders.

César Reyna, convicted on the basis of a confession obtained while his mother was held in extrajudicial custody across the border, remains in prison despite a mass of new testimony suggesting his innocence. The lawyer who prosecuted him, Gary Weiser, says he would have “moved to dismiss the case” were he armed with what is now known about the case.

Many of the rest in the Avena list of 54 were executed.

The bottom line is this: should India manage to jump across the legal barricade it set up for itself in 1974, it will find the law is on its side. Even if India succeeds in getting an order that the Naval officer on death row should have consular access, that alone won’t win him freedom. The law isn’t the same thing as justice — and it might do precious little to save Kulbhushan Jadhav’s life.

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