On May 18, 2017, 11 justices of the International Court of Justice (ICJ) pronounced that “irreparable damage” will be caused to India’s case before it if Pakistan were to execute Kulbhushan Jadhav, a former Indian Navy officer abducted from Iran and tried as a spy in military court, now labelled as a “terrorist” by Pakistan. The trial was, rightly, described by India as a “farce” and the military court as a “kangaroo court”: All consular access was denied and Jadhav was awarded capital punishment solely based on a coerced confession. The entire trial was held secretly with no defence lawyer permitted.
In contrast, India afforded all substantive due process to Ajmal Kasab, a Pakistani national who unleashed a massive terror attack on Mumbai. The ICJ meticulously decided that there was a dispute between the two countries arising under the Vienna Convention on Consular Relations, 1963 (VC, hereafter) and that it had jurisdiction over the case since both India and Pakistan had ratified, without reservation, Article 1 of the Optional Protocol to the VC. Article 36(1) of the VC assures consular access to a treaty national providing for certain obligations in the event of an arrest or detention of a foreign national, to guarantee the inalienable right to counsel, and due process through consular notification and effective access to consular protection. However, Pakistan denied this access, despite as many as 13 proces verbal by India.
The preliminary measure by the ICJ staying the execution of Jadhav is fraught with historic significance for India. In a demonstrable show of national unity, the initiative of the government has been endorsed by all major political parties and the reluctance to limit all issues to bilateral negotiation has been markedly dented. The media and civil society are also united on this initiative. Such a display of national unity over international legal recourse is rare. One may only speculate about its long-term impact, hopefully for the better, on Indo-Pak relations.
Two separate concurring declarations supplemented the unanimous decision. Justice Dalveer Bhandari held that the basic human rights of Jadhav had been violated by disallowing consular access to India. He further articulated the four requirements for the indication of provisional measures: “prima facie jurisdiction”, “plausibility”, “real and imminent risk of irreparable prejudice” and “the link between the rights claimed on the merits and the provisional measures requested”.
Judge Cançado Trindade, in an equally compact declaration, commends “the ongoing process of humanisation of international law, encompassing relevant aspects of consular relations”. These declarations will undoubtedly impact on the final judgment, despite Pakistan’s current wholly untenable position that the ICJ has “changed nothing” by its interim stay order.
But deeply contested is the scope of Article 41(1) of the ICJ statute, empowering the court to “indicate”, if “circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party”. Disciplined and difficult questions have arisen about what is signified by the two phrase-regimes: The “circumstance so require” and the “rights of either party”.
The ICJ has shown judicial creativity by balancing its own powers of doing justice with the principles of both state sovereignty and state consent. The quest does not always succeed if we study compliance rates: Empirical research suggests that (between 1949 and 2004) judgments rendered following special agreements marked a high compliance rate (85.7 per cent), whereas judgments based on the optional clause or a compromissory clause received 40 per cent and 60 per cent compliance respectively.
The ICJ has recognised that not all state parties may follow its orders or judgments, a factor inevitable in the multi-state context. As early as 1973, Judge Nagendra Singh in the Nuclear Tests (New Zealand v France) case stated that the examination of jurisdiction “comes into conflict with the urgency of the matter coupled with the prospect of irreparable damage to the rights of the parties”.
However, he also said that “it is this situation (of urgency) which furnishes the ‘raison d’être’ of interim relief”. Judge Oda in the LaGrand case said, in 2001, that “exercising jurisdiction to intervene directly in the fate of an individual would mean some departure from the function of the principal judicial organ of the United Nations to settle inter-state disputes concerning the rights and duties of states”. Thus, innovation must occur always under the shadow of the sovereign equality of all states. Yet, the ICJ, to its glory, has incrementally made the “appropriate measures” a sword of global justice.
The final decision poses an uphill task for the brilliant team at the ICJ, led by the redoubtable advocate Harish Salve. The issue of jurisdiction will again be raised, but more importantly, consular access standards will be contested. Pakistan has already erroneously maintained that the VC obligations do not extend to espionage or terror cases today. India needs to persuasively argue now that these treaty obligations are binding on all (erga omens) and are peremptory (jus cogens).
The issue of whether the ICJ converts itself into the highest court of criminal appeal when ruling on cases of violations of treaty obligations or customary international law norms and standards will also be deeply contended.
The Indian emphasis on “restitution” is important, but will the ICJ be persuaded to regard the denial of consular access as warranting a fresh trial, annulling all legal proceedings thus far? In LaGrand, the ICJ ruled that a remedy is due consisting of “review and reconsideration by United States courts of convictions and sentences”. Does restitution signify then a fresh trial, conducted by a civil rather than a military court, in full compliance with substantial due process requirements? How does the jurisprudence of the ICJ help answering the question? And what latent judicially manageable standards can now be made manifest for the “ongoing humanisation” of positive international law considered binding on all states?
None of these, and related, issues are insurmountable. But, surely, the trumpets must now fall quiet and allow the season of unremitting juristic labour by the Indian legal team.