ICJ in focus: the road ahead
In the end, it must be made clear that the case before ICJ does not pertain to Jadhav’s guilt or innocence
The writer is a practising advocate at the Supreme Court and a former president of the Supreme Court Bar Association
Kulbhushan Jadhav was caught in Pakistan and tried for espionage, found guilty and sentenced to death in accordance with Pakistan’s laws. The only remedy against this conviction is to file a mercy petition to Pakistan’s president. India has instead challenged Pakistan’s sovereignty and invoked the jurisdiction of the International Court of Justice (ICJ) as a result of which implementation of the sentence has been halted.
Pakistan was clearly taken by surprise, looked unprepared and indecisive, but since the real legal battle is still to come, one would have expected that by today it would have developed its own narrative: ready to defend its national sovereignty and security. This has unfortunately not happened.
What is India’s case before the ICJ? It claims that by disallowing consular access to Jadhav, Pakistan has committed a violation of the Vienna Convention on Consular Relations (VCCR). India has effectively requested that the ICJ nullify the decision of Pakistan’s military court so as to ensure a retrial, if not acquittal itself.
Does the ICJ have the jurisdiction to actually hear Jadhav’s case and render judgment on it? The ICJ is not like an ordinary court of law in a country where citizens have no choice but to accept the court’s jurisdiction and comply with its orders. To the contrary, the power of ICJ to settle legal disputes submitted to it by states is based on the consent/agreement of the states. In fact, the ICJ recognises that states must voluntarily submit themselves to its jurisdiction. However, if states do not give such consent, then ICJ cannot proceed against them. Article 36(2) of ICJ Statute is clear in this regard and provides that a state must submit a declaration accepting the court’s jurisdiction. A state may even limit the grounds on which a case is brought before it. For example, India has stated that matters such as Kashmir cannot be brought before the ICJ. Pakistan, too, has enhanced its declaration, albeit recently on March 29th to bring it on a par with the declaration of India.
On the basis of these declarations, neither Pakistan nor India should be able to bring a case such as Jadhav’s before the ICJ. Pakistan has also not given any specific consent to ICJ that it has the authority to decide this dispute.
Why then did the ICJ entertain India’s request and suspend Jadhav’s sentence on May 15th? India had done its homework and did not utilise the path provided in Article 36(2) of ICJ Statute; it based its case on another provision: Article 36(1). Pakistan and India are states parties to the VCCR, under which India claims it is entitled to consular access to Jadhav. According to them, this clause was violated by Pakistan and that this is, therefore, a dispute arising out of the VCCR. India’s case is that under Article 36(1) of ICJ Statute, the Hague-based court can decide whether or not there is any violation of VCCR even if Pakistan has not specifically consented to the ICJ’s jurisdiction.
Pakistan, of course, has a number of formidable legal objections to this. For instance, the Pak-India “Bilateral Agreement on Consular Access” which overrides the applicability of the VCCR, upon which India is relying. According to Clause VI of this agreement, Pakistan is not obligated to give consular access to India in all cases and may refuse such access on grounds of national security. This agreement does not provide for any dispute-resolution mechanism and accordingly, any dispute arising between India and Pakistan relating to Jadhav’s consular access cannot be deliberated upon by ICJ without Pakistan’s specific consent. Islamabad can rely on this and may even consider, as a sovereign nation, the option of “walking away” as was done by the US in the LaGrand case.
But the key to being successful in any legal case is preparation. For this, the two most crucial, immediate steps are (i) appointment of a fit and proper person as Pakistan’s adhoc judge and (ii) constitution of an able team of experts.
Pakistan has a right under Article 31 of ICJ Statute to appoint its nominee judge; a right perhaps we should have exercised prior to the preliminary hearing. Out of 15 judges of ICJ, 12 are academics, professors and experts in international law and international criminal justice. Only three are lawyers but they have been involved in various UN-related criminal trials. The only outsider is Dalveer Bhandari, who is a retired judge of the Indian Supreme Court. He has, however, been on the ICJ panel since 2012 and is thus, sufficiently experienced.
The task of deciding Pakistan’s nominee judge and the constitution of our legal team should be undertaken by a parliamentary committee consisting of representatives from all major political parties. I would suggest that Pakistan consider Justices Tassaduq Hussain Jillani and Nasirul Mulk, who are renowned for their academic expertise and landmark judgments on fundamental rights, for appointment as adhoc judges. The Attorney General of Pakistan is the right person for the key job of putting together a good legal team and must remember that the case cannot be presented by a team of general practitioners and non-academicians. Ultimately, the legal strategy must be cohesive with the political master plan. Therefore, the highest echelons of the government need to be on board and committed to this case.
In the end, it must be made clear that the case before ICJ does not pertain to Jadhav’s guilt or innocence as ICJ is not a criminal appellate court and as such cannot order his release, despite what India may have appealed for in its application.
Published in The Express Tribune, June 21st, 2017.
Pakistan was clearly taken by surprise, looked unprepared and indecisive, but since the real legal battle is still to come, one would have expected that by today it would have developed its own narrative: ready to defend its national sovereignty and security. This has unfortunately not happened.
What is India’s case before the ICJ? It claims that by disallowing consular access to Jadhav, Pakistan has committed a violation of the Vienna Convention on Consular Relations (VCCR). India has effectively requested that the ICJ nullify the decision of Pakistan’s military court so as to ensure a retrial, if not acquittal itself.
Does the ICJ have the jurisdiction to actually hear Jadhav’s case and render judgment on it? The ICJ is not like an ordinary court of law in a country where citizens have no choice but to accept the court’s jurisdiction and comply with its orders. To the contrary, the power of ICJ to settle legal disputes submitted to it by states is based on the consent/agreement of the states. In fact, the ICJ recognises that states must voluntarily submit themselves to its jurisdiction. However, if states do not give such consent, then ICJ cannot proceed against them. Article 36(2) of ICJ Statute is clear in this regard and provides that a state must submit a declaration accepting the court’s jurisdiction. A state may even limit the grounds on which a case is brought before it. For example, India has stated that matters such as Kashmir cannot be brought before the ICJ. Pakistan, too, has enhanced its declaration, albeit recently on March 29th to bring it on a par with the declaration of India.
On the basis of these declarations, neither Pakistan nor India should be able to bring a case such as Jadhav’s before the ICJ. Pakistan has also not given any specific consent to ICJ that it has the authority to decide this dispute.
Why then did the ICJ entertain India’s request and suspend Jadhav’s sentence on May 15th? India had done its homework and did not utilise the path provided in Article 36(2) of ICJ Statute; it based its case on another provision: Article 36(1). Pakistan and India are states parties to the VCCR, under which India claims it is entitled to consular access to Jadhav. According to them, this clause was violated by Pakistan and that this is, therefore, a dispute arising out of the VCCR. India’s case is that under Article 36(1) of ICJ Statute, the Hague-based court can decide whether or not there is any violation of VCCR even if Pakistan has not specifically consented to the ICJ’s jurisdiction.
Pakistan, of course, has a number of formidable legal objections to this. For instance, the Pak-India “Bilateral Agreement on Consular Access” which overrides the applicability of the VCCR, upon which India is relying. According to Clause VI of this agreement, Pakistan is not obligated to give consular access to India in all cases and may refuse such access on grounds of national security. This agreement does not provide for any dispute-resolution mechanism and accordingly, any dispute arising between India and Pakistan relating to Jadhav’s consular access cannot be deliberated upon by ICJ without Pakistan’s specific consent. Islamabad can rely on this and may even consider, as a sovereign nation, the option of “walking away” as was done by the US in the LaGrand case.
But the key to being successful in any legal case is preparation. For this, the two most crucial, immediate steps are (i) appointment of a fit and proper person as Pakistan’s adhoc judge and (ii) constitution of an able team of experts.
Pakistan has a right under Article 31 of ICJ Statute to appoint its nominee judge; a right perhaps we should have exercised prior to the preliminary hearing. Out of 15 judges of ICJ, 12 are academics, professors and experts in international law and international criminal justice. Only three are lawyers but they have been involved in various UN-related criminal trials. The only outsider is Dalveer Bhandari, who is a retired judge of the Indian Supreme Court. He has, however, been on the ICJ panel since 2012 and is thus, sufficiently experienced.
The task of deciding Pakistan’s nominee judge and the constitution of our legal team should be undertaken by a parliamentary committee consisting of representatives from all major political parties. I would suggest that Pakistan consider Justices Tassaduq Hussain Jillani and Nasirul Mulk, who are renowned for their academic expertise and landmark judgments on fundamental rights, for appointment as adhoc judges. The Attorney General of Pakistan is the right person for the key job of putting together a good legal team and must remember that the case cannot be presented by a team of general practitioners and non-academicians. Ultimately, the legal strategy must be cohesive with the political master plan. Therefore, the highest echelons of the government need to be on board and committed to this case.
In the end, it must be made clear that the case before ICJ does not pertain to Jadhav’s guilt or innocence as ICJ is not a criminal appellate court and as such cannot order his release, despite what India may have appealed for in its application.
Published in The Express Tribune, June 21st, 2017.