On 15 May, 2017, the ICJ heard India and Pakistan in relation to the request made by India to the ICJ, to indicate provisional measures pending the final decision of the court on the alleged violations of the Vienna Convention on Consular Relations, 1963 (VCCR) in relation to the trail of Kulbhushan Jadhav.

On 15 May, 2017, the International Court of Justice (ICJ) heard India and Pakistan in relation to the request made by India to the ICJ, to indicate provisional measures pending the final decision of the court on the alleged violations of the Vienna Convention on Consular Relations, 1963 (VCCR) in relation to the trial of Kulbhushan Jadhav. Primarily, India has requested for Pakistan to ensure that Jadhav is not executed pending the final judgment of the ICJ.

At the outset, it must be clarified that the main dispute is not a “criminal appeal” to the ICJ; the ICJ can only assess if there were issues in relation to “consular access” in the arrest, trial and sentencing of Jadhav. In the past three cases involving the same convention – Bread, LaGrand and Avena — the ICJ specifically clarified that it does not act as a court of “criminal appeal” but only adjudicates upon the violations of the treaty obligations, which in this case is the VCCR. In fact, considering that this not a criminal appeal, the ICJ has never annulled a sentencing decision in such cases; it has only declared aspects related to consular access being violated (for example, absence of communication with the accused), and has only ordered “review and reconsideration of the convictions and sentences” by the respondent country using the method of its choice.

Similarly, it must be borne in mind that the mandate of the proceedings on the 15 May was much narrower than the final proceedings; it was simply to decide upon the provisional measures requested by India. The object of such proceedings was to protect the object of the litigation. Traditionally, there have been three conditions to be fulfilled for the ICJ to indicate provisional measures: Prima facie jurisdiction of the ICJ on the matter; linkage of the provisional measures to the claim/rights which form the subject matter of the dispute and urgency. In some cases, the ICJ has also tested if the rights asserted by a party are at least plausible.

This piece will briefly discuss, and analyse the key arguments made by India, and Pakistan on these parameters.

Prima facie jurisdiction

In any case before the ICJ between sovereign states, the issue of consent to the jurisdiction of the ICJ assumes prime importance.

The basis of such consent can be found in Article 36 of the Statute of the International Court of Justice (Statute). To a limited extent, the question of jurisdiction is also material to the proceedings related to provisional measures. In a request for the indication of provisional measures, the ICJ does not have to finally satisfy itself that it has jurisdiction. However, this does not imply that the ICJ may indicate provisional measures unless the provisions invoked by the applicant country appear, based on first impressions, to afford a basis on which the jurisdiction of the ICJ might be founded. For instance, if the court finds that it has a prima facie jurisdiction in this case – Pakistan will have an option to challenge the same; and the decision on jurisdiction at this stage is without prejudice to Pakistan’s right to contest the jurisdiction of the ICJ at a later stage in the proceedings.

In this case, India solely relies on the Optional Protocol concerning the Compulsory Settlement (Optional Protocol to the Vienna Convention on Consular Access) in its arguments, which confers jurisdiction of the court pursuant to the Statute. Pakistan is incorrect when it argues that such a jurisdiction conferred by the Optional Protocol to the Vienna Convention on Consular Access can be limited by limitations/reservations to the compulsory ipso facto jurisdiction of the ICJ under another provision of the Statute; and incorrectly places reliance on the reservations relied upon by India in the Aerial Incident of 10 August, 1999 case brought to the ICJ by Pakistan. The Optional Protocol provides for an independent basis of jurisdiction, and the reservations do not cancel out the same. In fact, the Optional Protocol has been the basis of the jurisdiction in earlier cases before the ICJ where the US, the respondent state, had reservations to the compulsory ipso facto jurisdiction in relation to disputes involving multilateral treaties.

India also clarified that the basis of jurisdiction was not the bilateral Agreement on Consular Access, 2008 (Agreement) between India and Pakistan. Pakistan’s counter, however, is on the point that India has never alleged a violation of the Agreement, even though it amplifies the understanding of the VCCR. By such an argument, Pakistan seems to suggest that India is inappropriately “treaty shopping”.

At the outset, it must be noted that international law does not preclude India from choosing an enforceable treaty and approaching the ICJ for its violation, as India could not have claimed the violation of the 2008 Agreement to settle this dispute at the ICJ. However, the court may consider that the Agreement is “special law” overriding the “general law” i.e. the VCCR; and the Agreement is the specific treaty regulating the bilateral relations between India and Pakistan in relation to consular access. Such an argument, if successful, can pose limitations on the jurisdiction of the ICJ as the Agreement provides no basis for jurisdiction and the compulsory ipso facto jurisdiction under the Statute is inapplicable owing to India’s reservations to such jurisdiction. There may be some merit in this argument. Unfortunately, the text of this Agreement is not available for us to analyse this argument in detail. However, India gave a strong argument when it said that this Agreement reinforced the VCCR, which allows subsequent treaties to “confirm or supplement or extend or amplify” the provisions of the VCCR which has, in fact, been accepted by Pakistan.

Pakistan also did not establish that the Agreement provides for contrary and different obligations from the VCCR; and that the Agreement provides for permissible modifications of the multilateral convention as per the law of treaties. Therefore, as long as it is seen that the Agreement does not amend or modify the obligations under the VCCR, India can choose which treaty it wants to base its claims on.

Pakistan also argued that the VCCR was inapplicable in cases of terrorism and espionage which Jadhav is charged with. However, there is no express bar in the VCCR for its in-applicability in such cases. Though it is admitted that the previous cases involving Bread, LaGrand and Avena did not involve accusations of crimes related to terrorism and espionage; and that there is no ostensible basis in international law for Harish Salve’s assertion that the graver the charge, greater is the need for punctilious adherence to the Vienna Convetion – India still has a strong claim for the purpose of these proceedings. It must be noted that these arguments don’t confirm/deny the prima facie applicability of the VCCR. Such arguments are ideally reserved for the final proceedings.

Plausibility of success and the linkage of the provisional measures to the claims/rights in the main dispute

Pakistan argued that India had asked for the suspension of the sentence of death awarded to the accused; and the ICJ, as discussed above, cannot be a “criminal appellate court”. Since the ICJ cannot order such an unprecedented annulment, Pakistan argues that there is no realistic, plausible prospect of obtaining such relief from the ICJ. However, in arguing so, Pakistan ignores that there are other aspects to the claim/relief by India seeking declaratory reliefs, and other directions whose legality cannot be questioned at this stage. Ensuring that Jadhav is not executed is also imperative for the adjudication of those claims. It must also be noted here that provisional measures requested by India were indicated by the ICJ in all the past cases relating to VCCR violations, where parts of the final relief sought by the applicant countries were almost like the ones that sought by India in this case.

Pakistan additionally submitted that there was “no apparent and/or realistic nexus between the request for provisional measures and the rights/relief which the provisional measures are intended to ensure the preservation of.” However, it did not substantiate on this, besides mentioning that the final relief was “aspirational”. This was a weak argument as well. India, in its submissions, has successfully shown that there is a prima facie application of paragraph 36 of VCCR in absence of the alleged communications on charges, verdicts, and the alleged denial of consular access in many instances. Arguments raised by Pakistan about the alleged passport Jadhav was apprehended with, or about the applicabity/in-applicability of the VCCR in cases of terrorism and espionage are not material at this stage, and may have bearing in the final stage of the proceedings.

Urgency

Another important factor that needs to be considered is whether the requirement of provisional measures is “urgent”. “Urgency”, as has been understood by the ICJ in several cases requires the ICJ to see if there is an urgent need to prevent irreparable prejudice to the rights that are the subject of the dispute, before the court has had an opportunity to render its final decision. This urgency, as Pakistan argues, must be measured in terms of imminence, but one must not lose sight of the fact that an assessment of urgency must factor the possibility that the court might not have the opportunity to render the final decision in a matter of months. Therefore, the fact that no execution dates have been fixed, as argued by Pakistan, is not necessarily a circumstance that would preclude the ICJ from indicating provisional measures requested by India. Even in Avena, provisional measures were indicated in relation to the Mexican nationals who awaited execution in six months from the day the request for provisional measures was filed.

Lastly, it must be noted that India has a strong case for urgency, as Pakistan has not once convincingly indicated details about Jadhav; and whether Jadhav can, in fact, seek or receive remedy under writ remedy in Pakistani courts, or through discretionary clemency proceedings.