A Critique of the ICJ Ruling of 17 July 2019 on the Case of Commander Kulbhushan Sudhir Jadhav, Indian Navy, cover name, Hussein Mubarak Patel, Businessman

By Syed Sharfuddin

In May 2017, India filed an application against Pakistan at the International Court of Justice (ICJ) in the Hague, maintaining that Pakistan had breached its obligations under the Vienna Convention on Consular Relations of 1963 (the Convention) to provide a fair trial to its national, Kulbhushan Sudhir Jadhav, who was arrested in Pakistan in March 2016 on charges of espionage and was awarded death sentence by a Pakistani military court in April 2017. 1

The ICJ admitted India’s application under Article 1 of the Optional Protocol to the Convention concerning Compulsory Settlement of Disputes to which both India and Pakistan are signatories. In admitting the Indian application, the ICJ dismissed the objections of Pakistan to India’s application citing abuse of process, abuse of rights and unlawful conduct by India.

The ICJ jurisdiction was limited to “providing reparation only for the injury caused by the internationally wrongful act of Pakistan that fell within the Court’s jurisdiction, namely Pakistan’s breach of obligations under Article 36 of the Convention and not of the International Covenant on Civil and Political Rights”. 2

In admitting India’s application for a hearing, the ICJ disregarded a well established rule of customary international law that normally a complaint of a State against another State regarding its national is not considered until the accused has exhausted the legal remedies available under the law of that State. In this case, ICJ did not ask India to wait for the appellate remedy available to the Jadhav to be fully exhausted in Pakistan.

The 149 paragraph verdict, given by a panel of 16 distinguished judges, including the sole dissenting ad-hoc judge from Pakistan, Justice (Retd) Tasadduq Hussain Jillani, has been claimed by both State parties as vindication of their respective legal positions.

The ICJ accepted India’s assertion that Pakistan was in breach of Article 36 of the Convention and asked Pakistan for the continued stay of the sentence pending finalisation of the proceedings in the light of the ICJ ruling.

The ICJ did not accept India’s position that the reparation of the injury should annul the decision of the Pakistani military court and ask Pakistan to free Jadhav.

The ICJ accepted Pakistan’s submission that the appropriate remedy in this case was the effective review and reconsideration of the conviction and sentence of the accused .3

The ICJ did not accept Pakistan’s position that Article 36 did not apply to persons arrested on charges of espionage 4.

Legal experts agree that the ICJ could go only as far as it has gone; that the Court had no mandate to annul the decision of the military court, within the scope of its jurisdiction, having acknowledged that Pakistan and its criminal justice system were fully compliant with due process. 5

Ruling
The full summary of the ICJ ruling announced on 17 July 2019 is contained in paragraph 149 of the decision. 6

The ICJ found that “Pakistan acted in breach of its obligations under Article 36 of the Convention: firstly, by not informing Mr. Kulbhushan Jadhav of his rights; secondly, by not informing India, without delay, of the arrest and detention of Mr. Jadhav; and thirdly, by denying access to Mr. Jadhav by the consular officers of India, contrary to their right, inter alia, to arrange for his legal representation”.

The ICJ acknowledged that Pakistan notified India on 25 March 2016 of the arrest and detention of Mr. Jadhav, as required by Article 36, paragraph 1B, of the Convention. 7

However, the fact that the notification was made some three weeks after the arrest, constituted a breach of the obligation to inform “without delay”, as required by Article 36, paragraph 1B of the Convention. 8

The ICJ held that Pakistan’s breach of paragraphs1A &1C of Article 36 of the Convention constituted “internationally wrongful acts of a continuing character”. 9. Pakistan was therefore “under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1B, and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraphs 1A and 1C.”

The ICJ ruled that “the appropriate remedy in this case for Pakistan” was to undertake an “effective review and reconsideration of the conviction and sentence of Mr. Jadhav” by giving this process “full weight” to the “effect of the violation of the rights set forth in Article 36 paragraph 1 of the Convention, and guarantee that the violation and the possible prejudice caused by the violation are fully examined”.

The ICJ took full cognizance of the fact that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”.

The ICJ left the choice of ways to Pakistan for performing its obligation to provide effective review and reconsideration of the case but it noted that “freedom in the choice of means is not without qualification”, which is that the “obligation to provide effective review and reconsideration is an obligation of result, which must be performed unconditionally”. Therefore, “the violation of the rights set forth in Article 36, paragraph 1, of the Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed; that Pakistan take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation; and [observe] a continued stay of execution which is an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav” 10.

Observation 1
In May 2017 the ICJ admitted the application of India under Compulsory Settlement of Disputes without allowing the appellate process in Pakistan to be completed.

Yet two years later, in its ruling on 17 July 2019 the ICJ took cognizance of the fact that the “Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available” to persons under consideration 11.

Observation 2
In its July 2019 ruling, the ICJ said that Pakistan consistently maintained that Article 36 did not apply to Jadhav who was not just an Indian national but also a spy. The ICJ therefore inferred from this position that under Article 36:1A, Pakistan breached its obligation to inform Mr. Jadhav of his rights under that provision”. 12

On the other hand, under Article 36:1B, the ICJ did not infer that since the concerned Indian national was doing espionage on behalf of his government, his arrest and detention in Pakistan (which was not his normal place of residence on duty) should have come to the knowledge of India on the same day on 25 March 2016 when his phone went unanswered and messages stopped coming, thereby invalidating the obligation of the receiving State to inform the sending State of the arrest of its national without delay.

Observation 3
The ICJ further stated that it will interpret the 1963 Convention according to customary rules of treaty interpretation, as reflected in Articles 31 & 32 of the 1969 Vienna Convention on the Law of the Treaties in order to remove any ambiguity or obscurity in the 1963 Convention. India has not signed the 1969 Convention. Pakistan has signed the 1969 Convention but not ratified it.

It is interesting that while the Court declined to consider Pakistan’s plea for declining India’s request for admissibility of the case on the basis of customary law, the ICJ did not mind recourse to customary law in the interpretation of the 1963 Convention.

Observation 4
In considering the provisions of the bilateral agreement of 2008 between India and Pakistan, which covers “cases of arrest, detention or sentence made on political or security grounds” and commits each side to “examine the case on its merits” 13, the ICJ noted that it does not take away the right of the accused to have consular access under Article 36 of the Convention.

The ICJ accepted that under Article 73 paragraph 2 of the Convention, the 2008 Agreement is consistent with the Convention, as it confirms, supplements, extends or amplifies the provisions of the Convention and regulates matters not covered by the Convention. Yet, the ICJ did not direct the two State parties to resolve this matter in accordance with the bilateral Agreement of 2008 15.

It may be recalled that since 1972, India has consistently maintained that the Kashmir dispute should be resolved between India and Pakistan bilaterally in accordance with the provisions of the Simla Agreement between the two countries. The two State parties, the UN and the international community have supported the bilateral option, but never said that the Simla Agreement should be disregarded and the dispute should be resolved on the basis of the UN Resolutions on Kashmir calling on India to hold a plebiscite in the disputed territory.

Observation 5
The ICJ noted that if the signatory State parties to the 2008 Agreement “had intended to restrict in some way the rights guaranteed by Article 36, one would expect such an intention to be unequivocally reflected in the provisions of the Agreement.

The ICJ ruled that Article 36 of the Convention does not exclude from its scope persons suspected of espionage, despite the clear omission of espionage in the Convention, as opposed to a bilateral agreement between two sovereign countries which explicitly provides a framework for arrest, detention or sentence made on political or security grounds and calls for consideration of cases falling under this provision on merit.

Observation 6
In regard to the breach of Article 36 paragraphs A & C of the Convention, 14, the ICJ did not accept Pakistan’s submission that Pakistan had asked for vital information such as confirming the passport details and activities of the accused to verify his nationality and profession, which were not provided by India.

In rejecting the notion of any conditionality attached to right of the accused for consular access and the right of the State of the accused to arrange legal representation for him, as provided under Article 36:1A, the ICJ did not take into consideration the facts that the accused was an employee of an Indian spy agency and his alleged terrorist activities in Pakistan had made India complicit in the crime and created a direct conflict of interest, not foreseen in the Article at the time of the drafting of the Convention. The ruling also did not mention that Pakistan partially implemented Article 36 paragraph 1A by allowing the family of the accused to meet him in person.

As for the intent of the drafters of the Convention to include espionage in Article 36, it is correct that espionage was a well known state instrument when the Convention was negotiated, but it is also correct that state-sponsored terrorism and deploying spies as terrorists’ handlers in enemy states had not been invented.

Observation 7
In considering India’s complaint, the ICJ focused its attention on Article 36 of the Convention. It did not take into consideration Article 55 of the Convention, which obliges the officers of the sending state to respect the laws and regulations of the receiving state. Although the Article is about immunities and privileges of the consular officers of the sending State, it implicates all Indian consular officers posted in Pakistan as an extension of the Indian state, which appointed Kulbhushan Jadhav to carry out espionage activities in Pakistan, and also issued him a genuine Indian passport under a false alias.

Conclusion
The ICJ ruling of 17 July 2008 adds the following to the international case law:

1.The ACJ can disregard the established principle of customary international law which states that local remedies be fully exhausted before a State brings a case to the ICJ for consideration.

2.Irrespective of the provision in Article 36 paragraph 1B which states that “if he [the accused] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State” about his arrest, it is now established by ICJ that the request of the accused, even if not expressed, is always implied under paragraph 1B. 16

3.A State arresting a foreign national is obliged to unconditionally observe Article 36 paragraphs 1A, 1B and 1C of Vienna Convention on Consular Relations (1963) regardless of the nature of the accusation, including terrorism and espionage.

Suggestions for Pakistan

While giving full effect to the detailed ruling of the ICJ in its judicial process for the Jadhav case, Pakistan should consider taking the following additional steps with the relevant national and international bodies:

1.Propose to the UN to convene a comprehensive review of the 1963 Convention and its Optional Protocol in the light of the changed nature of international relations, which include, inter alia, misuse of consular premises by sending States to undertake anti-state activities in the receiving State; State-sponsored terrorism through contracted intelligence officers and civilians posing as journalists, businessmen and INGO personnel; spread of terrorism and hatred though social media; inter-state cyber wars; and, cross border illegal financial transactions.

2.Pakistan can also, should it so wish, submit a reservation or declaration to the 1963 Convention stating that it will not consider Article 63:1B binding on the State in instances of foreign nationals arrested for proven terrorist activities or espionage, pending completion of its internal investigation. Such as resolution or declaration should first be passed by the Parliament.

Notes:
1. ICJ ruling. Paragraph 25. Full Text: The remedies requested by India in its final submissions have already been set out (see paragraph 19 above). In summary, India requests the Court to adjudge and declare that Pakistan acted in breach of Article 36 of the Vienna Convention on Consular Relations. Pursuant to the foregoing, India asks the Court to declare that the sentence of Pakistan’s military court is violative of international law and the provisions of the Vienna Convention, and that India is entitled to restitutio in integrum. It also requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, to direct Pakistan to release Mr. Jadhav and to facilitate his safe passage to India. In the alternative, and if the Court were to find that Mr. Jadhav is not to be released, India requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence awarded by that court. In the further alternative, India asks the Court to direct Pakistan to take steps to annul the decision of the military court. In either event, it requests the Court to direct a trial under ordinary law before civilian courts, after excluding Mr. Jadhav’s confession and in strict conformity with the provisions of the International Covenant on Civil and Political Rights, with full consular access and with a right for India to arrange for Mr. Jadhav’s legal representation.
2. Ibid. Paragraph 135
3. Ibid. Paragraph 130
4. Ibid. Paragraph 147
5. Ibid. Paragraphs 139 & 145
6. Ibid. Full Text of Paragraph 149. The Court, (1) Unanimously, Finds that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017; (2) By fifteen votes to one [and in all other subsequent paragraphs], Rejects the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible; (3) Finds that, by not informing Mr. Kulbhushan Sudhir Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, the Islamic Republic of Pakistan breached the obligations incumbent upon it under that provision; (4) Finds that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations; (5) Finds that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations; (6) Finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations; (7) Finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention, taking account of paragraphs 139, 145 and 146 of this Judgment; (8) Declares that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.
7. Ibid. Paragraph 111
8. Ibid. Paragraph 113
9. Ibid. Paragraph 134
10.Ibid. Paragraphs 141 & 149
11. Ibid. Paragraph 145
12. Ibid. Paragraph 102
13. Point vi of the Agreement on consular access between the Government of the Islamic Republic of Pakistan and the Government of the Republic of India. Islamabad, 21 May 2008.
https://treaties.un.org/doc/Publication/UNTS/No%20Volume/54471/Part/I-54471-08000002804b7dde.pdf
14. ICJ ruling. Paragraph 96
15. Text of Article 36: Communication and contact with nationals of the sending State.
1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.
16. Ibid. Paragraph110

London: 18 July 2019