India drags Pakistan to the ICJ

India’s approach to the International Court of Justice (ICJ) on the summary of Kulbushan Jadhav breaks with convention. In the past, India has chosen the bilateral route to settle disputes with Pakistan. In 1974, India had submitted to the ICJ that it would not accept its jurisdiction in cases which involve any past or present Commonwealth countries, and Pakistan is a Commonwealth country. This argument was successfully used by India in 1999 when Pakistan moved ICJ against India. The case involved shooting down of Pakistan Navy’s Atlantic Surveillance Aircraft in the Rann of Kutchh. The ICJ ruled in India’s favour claiming that it had no jurisdiction on the issue. In 2005, India changed its attitude to international arbitration in the case of the Indus Waters Treaty. It agreed to subject the India-Pakistan contentions over technical aspects of the water usage in Indus basin to a neutral expert appointed by the World Bank. However, the current Indian reference to the ICJ is not about heights of dams or their technical nature but about consular and human rights issue. Perhaps this measure was urgently needed as Jadhav’s life had to be saved and asking Pakistan to do the honourable thing was not working. An opening was provided by the Vienna Conventions on consular relations (1963) which have been signed by both India and Pakistan and non-compliance of these provisions can be appealed before the ICJ. Some experts argue that moving the ICJ could open up a Pandora’s box and have unforeseen consequences for Indian diplomacy.

As argued by the sceptics, it may not be a sign of desperation or failure of bilateral diplomacy which led India to take this route because India has never succeeded in dealing with Pakistan on any rational basis or rather making Pakistan conduct itself as a ‘normal’ state. Hence, this is not the first time that India has discovered Pakistan to be recalcitrant.

It is the fact that the case has turned into a high-profile one, which is adding to the advantage of Pakistan to settle both domestic and international community in the context of presenting India as a sponsor of terrorism in Pakistan. To consolidate domestic support behind itself, the Pakistani military has sentenced Kulbhushan Jadhav a death sentence by a court martial by the military tribunal. Naturally, this has invited immense anguish in India. The timeframe of execution was uncertain because of Pakistan’s ‘rogue’ sense of justice, so it was an appropriate remedy perceived by India to ensure the protection of human rights of its citizen on a foreign soil.

Life of an Indian citizen is exceedingly important, therefore, if action is taken to secure the same, it becomes appropriate automatically. India has moved in a novel way by breaking from past practices. In the past, in order to avoid any entanglement of the ICJ, India has directed a wall against such entanglements which was in line with India’s stance that all issues with Pakistan are bilateral in nature. This stance may not have been breached by India’s decision to move to the ICJ on this matter because India has invoked the multilateral Vienna convention (1963) to settle a human rights issue in terms of gaining consular access of its citizen and his right to a fair trial. An ‘opening’ may have been created but it is still not certain whether that opening will allow Pakistan to convert most of the bilateral issues into multilateral ones. This ‘opening’ may hurt the interests of India in the long term as Pakistan may invoke the Vienna convention and other multilateral treaties in future to settle bilateral disputes.

Vienna convention as an international law takes precedence over bilateral pacts of consular access. Bilateral pacts merely supplement the Vienna Convention in terms of filling the gaps, but they cannot override the Convention itself. The ICJ can take up cases where international law is concerned and certainly the Vienna Convention is an integral part of this international law. Both India and Pakistan are parties to it and to the optional protocol on settlement of disputes concerning the interpretation or application of the Vienna conventions. Therefore, in the legal context, both India and Pakistan have accepted the jurisdiction of the ICJ under the Vienna Convention.

As a provisional measure, the ICJ President Ronny Abraham’s letter to the Pakistan Government calls upon Pakistan to ‘act in such a way as will enable any order that the court may make on this request to have its appropriate effects’, pending the court’s decision. In effect, the intention is to put a stay on the execution of Kulbhushan Jadhav by the Pakistani authorities. In Germany v/s the US case, the ICJ has held that these provisional measures are binding upon the parties to the dispute.

But it should be remembered that Pakistan is in no way obligated to follow the directives of the ICJ. It is merely the matter of international reputation for Pakistan to prove itself as a law-abiding nation and not as a ‘rogue’ state that the world perceives it to be.

India has cited the instance of cases such as Paraguay v/s the US, Germany v/s the US and Mexico v/s the US while appealing in the ICJ, but all of these instances were concerned with criminal acts by the civilians. In the past, there have been instances between the US and the Soviet Union when the persons accused of spying were denied consular access, but none of those cases involved the position of a death penalty. Hence, India has termed the case of Kulbhushan Jadhav as extraordinary in nature.

The 2008 protocol between India and Pakistan on consular access allows both parties some leeway in terms of not granting consular access to the prisoners who have been arrested on political and security grounds. But, as already discussed above, the Vienna Convention overrides the bilateral protocols altogether.

While invoking the optional protocol on Vienna Conventions on consular relations, India suggests that a series of arbitration and conciliation mechanisms were exhausted before approaching the ICJ. In fact, the ICJ will only hear the appeals on whether Pakistan provided consular access of Kulbhushan Jadhav to India or not and whether the trial has proceeded in accordance with the fundamental human rights. Other areas of concern such as the award of death penalty to Kulbhushan Jadhav are outside the jurisdiction of the ICJ.

The court martials can only be instituted against a foreign national only if the accused is a serving officer of the defence forces of a foreign country. This is what Pakistan has been claiming about Kulbhushan Jadhav, whereas India contends that Jadhav is an ex-serviceman. Field General Court Martials are not conducted under normal criminal procedures but that does not mean that consular access can be prohibited. Consular access of the accused in custody to his/her country of citizenship must be provided irrespective of the procedure of trial.

Pakistan submitted a declaration in March 2017 that it will not accept the jurisdiction of the ICJ in matters concerning the security of its nation. The September 1960 declaration has been revised in March 2017 only in anticipation that India might approach the ICJ in the Kulbhushan Jadhav issue. This declaration would allow Pakistan to challenge the jurisdiction of the ICJ as Pakistan comprehends Jadhav’s detention and the subsequent trial, to be in the interest of the security of Pakistan.

Experts have been criticising India for approaching the ICJ in this matter but it should be remembered that under international law, the states have a right to diplomatic protection in respect of their nationals when they are abroad. By going to the ICJ, India has signalled to its own citizens that India is ready to step in and ensure the protection of their rights, whenever they are deemed to be violated anywhere in the world.