Indian Journal of International Law

, Volume 56, Issue 3–4, pp 379–403 | Cite as

The Jadhav case (2017): India and Pakistan before the International Court of Justice

Article

Abstract

This paper examines the Jadhav case filed by India before the ICJ. Kulbhushan Jadhav, an Indian national, was arrested by Pakistan on charges of espionage, sabotage and terrorism. Pakistan denied several requests from India seeking consular access to Jadhav after his arrest preventing it from rendering him necessary assistance. A military court of Pakistan sentenced him to death. Under the circumstances, India filed a case before the ICJ seeking its jurisdiction under Article 36(1) of its Statute to assert its right of consular access. Pakistan contested the jurisdiction of the ICJ. The ICJ stayed the death sentence and called for memorials to be filed by the Parties to decide first on issues of jurisdiction and later concerning merits as appropriate. This case also offers an opportunity to take an overview of India’s policy and practice concerning peaceful settlement of disputes through judicial means.

Keywords

India Pakistan Jadhav case Provisional measure Compulsory jurisdiction Consular access 

1 The Indian application before the International Court of Justice

The International Court of Justice (ICJ) was very much in the news in India and Pakistan ever since India decided on May 8, 2017 to knock on its doors in the case of Kulbhushan Sudhir Jadhav (hereinafter Jadhav). Jadhav is a retired Indian naval officer, under detention with Pakistan, accusing him of “espionage, sabotage and terrorism”. He was tried before a military court; and according to a statement issued by Pakistan on 14 April 2017 he was sentenced to death on 10 April 2017.

By way of an Application submitted to the ICJ under Article 36(1) of its Statute, India sought from the Court, among other things, ‘a relief by way of immediate suspension of the sentence of death awarded to the accused’.1 India submitted that the award of death sentence to Mr. Jadhav by a military court of Pakistan is a “brazen defiance” of the Vienna Convention rights under Article 36, particularly Article 36, paragraph 1 (b), and in defiance of elementary human rights of an accused and in violation of Article 14 of the 1966 International Covenant on Civil and Political Rights.

2 The jurisdiction of the International Court of Justice: the Indian policy and practice

Before we proceed to examine the details of the present Indian application before the ICJ, in respect of the Jadhav case, it is worth noting that this is the second time India approached the Court on its own as an applicant. Earlier in 1971, it filed an appeal against a decision of the ICAO Council in favor of entertaining a complaint of Pakistan. That complaint related to a decision India took to suspend overflights of its territory by Pakistani civil aircraft following an incident involving the diversion to Pakistan of an Indian aircraft. India also appeared before the Court as a respondent in four other cases: the Marshall Island case concerning India’s obligation of negotiation about cessation of nuclear arms race (2014–2016), the Aerial Incident case involving the shooting down of a Pakistan’s aircraft (1999–2000), Trial of Pakistani Prisoners of War, withdrawn by Pakistan, the applicant before memorials were filed (1973) and the Right of Passage case involving a claim by Portugal questioning India’s suspension of its right of passage between its territory of Daman (coastal Daman) and its enclaved territories of Dadra and Nagar-Haveli (1955–60).2 Thus, so far India came before the court six times, facing Pakistan four times.

The record of India before the ICJ should be viewed against the backdrop of its avowed policy of seeking settlement of disputes through negotiations, particularly those relating to land3 and maritime boundaries4 and sensitive political matters like armed conflicts, security, sovereignty and territorial integrity. The broad policy of India towards compulsory jurisdiction of the ICJ under Article 36(2), which provides a distinct jurisdictional base as opposed to the jurisdictional base contained in Article 36(1) under which the Jadhav case is brought before the Court, should further be emphasized as one of caution, given the number of reservations it made from time to time to its declaration of acceptance of the ICJ jurisdiction.5 According to one commentator, given

[T]he Court’s approach to the optional clause and the extremely broad reservations contained in India’s Optional Clause declaration, it is unlikely that the Court will be able to entertain any dispute involving that country, whether as applicant or as respondent, based on the Optional Clause.6

It is very clear that reservations attached to declarations India and other States made under Article 36(2) do not by their terms derogate from a wider acceptance of the compulsory jurisdiction already given to the ICJ. They operate to define the parameters of the State’s acceptance of the compulsory jurisdiction of the Court. Further the jurisprudence of the Court makes it clear that in respect of any objections raised by States parties to a dispute to its jurisdiction, that is, with respect to the competence de la competence, the decision of the Court is final. There are instances in which the Court found jurisdiction in spite of objections raised by States, and in some cases, where it is satisfied that consent of the State is available even after the initiation of the proceedings, in an implied manner, or by a succession of acts.7 But the Court in general constructs its jurisdiction on a very strict basis. In its view reservations and conditions attached to a declaration need not be interpreted in a restricted way, as they define the parameters of the consent of the State.8 The Court further looks for the underlying intention9; and while interpreting the intention of the parties, the Court would look to all the elements in a declaration and not seek a mere grammatical interpretation.10

Given the popular impression that reservations to compulsory jurisdiction of the Court and to other international tribunals negatively impact on the promotion of rule of law at the universal level, a few observations on the nature and function of reservations are in order. Reservations to the compulsory jurisdiction of the Court are in the nature of exceptions to the rule and they only confirm the compulsory jurisdiction of the Court. They endorse the principle of pacific settlement of disputes. They help promote the policy that the ends of justice could be served in more than one way. They emphasize the point that solutions reached as a result of free choice of means of peaceful settlement, accepted voluntarily and by mutual consent remain durable. While it is generally true that recourse to judicial settlement is not to be treated as an unfriendly act, it is, at the same time, as the Court itself recognized, only one of the many means of peaceful settlement of disputes. For some cases it may not even be a desirable means, if in a case legal aspects do not dominate the totality of the complexity that envelopes the dispute. The UN Charter (Article 32) referred to many other means including negotiation as a method for peaceful settlement of disputes. It has been rightly observed that

[O]ne must acknowledge that neither in 1899 nor today could the reluctance to agree to compulsory jurisdiction be explained as resulting merely from lack of confidence in the independence, impartiality, or competence of the judges, or in their collective decision making process or uncertainty as to the norms to be applied. Rather, one senses that many States entertain considerable doubt that the application of a necessarily generalized rule of law, instead of diplomacy, to the specific incident is the correct approach when issues assume fundamental importance to the state or the international community – when the interests at stake are too substantial or the history of wrongs too long. For States that holds this doubt it is important that the law be able to recognize its own limitations, its own human origin.11

Reservations are a primary means to promote the concept of compulsory jurisdiction of the Court. They are an important means to let States pronounce in favor of the principle of pacific settlement of disputes even while it allows them the right to decide whether in a given case the recourse to that jurisdiction is the best method open to them. Reservations are an important tool to ward off half-hearted moves to use or even abuse the jurisdiction of the Court for political ends. Reservations prevent the substitution of the discretion of the third party or parties for the discretion of the parties to the dispute in cases where the applicable law is either indeterminate or in capable of accommodating the needs of justice and equity as perceived by the parties.

Having underlined the indispensable role consent plays and should play in the founding the jurisdiction of the Court, it is important also to underline the fact that States, particularly more of the poor and the weak among them, now see the role of the Court in a more positive light than they ever did before. More States are not only willing to bring more of their disputes to the Court but are enthusiastically creating even more international judicial forums to interpret and apply the highly specialized treaty regime they are establishing. The reason is the volume of jurisprudence of the Court enhanced the predictability, certainty and clarity of international law and hence the confidence of States to knock on its doors more frequently for expeditious resolution of their disputes, with fewer political overtones than those that accompany other possible means of peaceful settlement of disputes. The Court has demonstrated time and again that there is no dispute, howsoever politically charged the matter is, on which it cannot pronounce on the basis of international law. In this respect, there is no room for skepticism today about the wide reach the ambit of law has. International community remarkably succeeded in its efforts over the last seventy years to promote the progressive development and codification of international law. The work of the International Law Commission, as subsidiary body of the UN General Assembly is closely tied to the work of the ICJ and other international tribunals. International law is now a distinct profession, separate from the practice before national courts, judges and law applicable even if these national tribunals often are called to take cognizance of the principles of international law and standards in arriving at their own decisions.

The steady progress of the reign of international law in the field of settlement of disputes between States and the increasing confidence of States in the judicial process is admirably assisted by the Court’s fine practice of balancing its function of “judicial innovation” with “judicial caution”.12 The Court has truly come of age and States would do well to take increasing recourse to it despite their own earlier reservations. For such recourse would not only strengthen rule of law in international relations. It would also release their energies to be harnessed for peace, development and justice and in the process promote a true legal community of mankind. India must regain the lead it once had in promoting national expertise in international law and lead from the front the movement towards judicial settlement of international disputes. The moving of the ICJ by India in the Jadhav case augurs well in promoting this trend.

3 The Indian application to the ICJ: specific issues arising from the Jadhav Case

The Indian application before the ICJ in the Jadhav’s case may be seen against the background that India and Pakistan are both Parties to the 1963 Vienna Convention on Consular Relations since 28 December 1977 and 14 May 1969, respectively.13 In addition, India and Pakistan are parties to the Optional Protocol to the Vienna Convention since 28 December 1977 and 29 April 1976, respectively. Article 1 of the Optional Protocol provides that ‘Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.’14

The Indian request sought an immediate order on provisional measures staying the execution of Mr. Jadhav in view of the greatest urgency of the matter, pending an oral hearing of its case on the issue of provisional measures under Article 73 (2) of the Rules of the Court. It relied in this regard on the power of the President of the Court under Article 74(4) of the Rules of the Court.15

By a letter dated 9 May 2017 addressed to the Prime Minister of Pakistan, the President of the Court, exercising the powers conferred upon him under Article 74, paragraph 4, of the Rules of Court, called upon the Pakistani Government, pending the Court’s decision on the Request for the indication of provisional measures, ‘to act in such a way as will enable any order the Court may make on this Request to have its appropriate effects’. The Court also held on May 15, 2017 oral hearings on the matter of issue of an order of provisional measures as requested by India. The following would recall some salient points of arguments submitted by India and Pakistan and the decision of the Court on the issue of provisional measures.

3.1 The Indian case

It is India’s case that at no stage during the period of detention and later of his trial, Jadhav was informed by Pakistan of his rights to seek consular assistance from India, a right he enjoys under Article 36 (1)(b) of the 1963 Vienna Convention on Consular Relations. In addition, Pakistan also did not accord him ‘elementary human rights of an accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights’. Furthermore, Pakistan did not inform India of Mr. Jadhav’s detention as soon as it identified him as an Indian national, thereby denying India of the exercise of its right to seek consular access to him, which it enjoyed in accordance with Article 36 (1) (a). This in turn robbed India of its rights under Article 36(1)(c) ‘to arrange for his legal representation’, and ‘to correspond and converse with’ him.16

India submitted that it came to know of Jadhav’s detention only on March 25, 2016, even though he was in their custody since 3 March 2016. In this connection, India noted that between March 25, 2016 and 19 April 2017, it sought consular access on several occasions from Pakistan without success. In its turn, Pakistan sought on 23 January 2017 India’s assistance in the investigation process concerning Mr. Jadhav and his alleged accomplices, making it clear to India, on 21 March and 10 April 2017, that consular access to Mr. Jadhav would be considered ‘in the light of’ India’s response to the its request for assistance.

As the Court noted, India submitted ‘that the conditioning of consular access on assistance in an investigation is itself a serious violation of the Vienna Convention’. In view of the foregoing, India also noted that ‘Pakistan failed to provide the requisite notifications without delay and that India and its national have been prevented for all practical purposes from exercising their rights under Article 36, paragraph 1, of the Vienna Convention’.17 India considered that the right of consular access it enjoys under the Vienna Convention ‘admits of no exceptions’ and is applicable irrespective of the charges against the individual concerned.18

Further, according to India, Mr. Jadhav was kidnapped by Pakistan while on a business trip to Iran and falsely charged him with espionage, extracted a confession under duress while in custody vitiating the whole process of prosecution and sentencing.

India also submitted that it seeks to found the Court’s jurisdiction on Article I of the Optional Protocol to the 1963 Vienna Convention, which provides for compulsory jurisdiction of the Court under Article 36(1) of its Statute, and not on the basis of declarations made accepting the compulsory jurisdiction of the Court in terms of Article 36, paragraph 2, of its Statute. India is of the view that where treaties or conventions especially provide for the jurisdiction of the Court under Article 36(1), such declarations under 36(2), including any reservations they may contain, are not applicable.19

3.2 The Pakistani case

Pakistan opposed India’s submissions on three grounds: 1. It claimed that ‘the jurisdiction of the Court is excluded by a number of reservations the Parties made while accepting the compulsory jurisdiction under Article 36, paragraph 2, of the Statute. Referring to its own reservation which excluded ‘all matters relating to the national security of the Islamic Republic of Pakistan’, Pakistan took the view that the Court lacked even prima facie jurisdiction in respect of the Jadhav case, who it noted was ‘was arrested, detained, tried and sentenced for espionage, sabotage and terrorism’.20 It further submitted that in respect of persons engaged in spying, Vienna Convention on Consular Relations did not apply.21 More importantly, noting that as the case of Jadhav is one that affected its national security, Pakistan submitted that the right of consular access comes instead under the purview of the 2008 Agreement on Consular Access, it concluded with India.22 Emphasizing that the 2008 Agreement was fully operational without any breach for the last ten years, Pakistan pointed out that ‘it is perfectly consistent with the objectives of the Vienna Convention and in particular Article 73, paragraph 2, of the Convention, which provides that ‘[n]othing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof’; provided an “essential” basis for regulating the consular access between the two States “given the fractious nature” of their relationship’.23

As the Court observed ‘Pakistan avers that the facts alleged in the Indian Application fall within the scope of the 2008 Agreement, which “limit[s] and qualif[ies] or supplement[s]” the Vienna Convention’. Pakistan calling attention to sub-paragraph (vi) of the 2008 Agreement, which provides that ‘[i]n case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits’, argued that in view of this provision, the Court lacked prima facie jurisdiction under Article I of the Optional Protocol in the case of Mr. Jadhav.24

On the relevance of the 2008 Agreement for the present case, India noted that ‘this instrument does not limit the Parties’ rights and obligations pursuant to Article 36, paragraph 1, of the Vienna Convention’. According to India, ‘while Article 73 of the Vienna Convention recognizes that agreements between parties may supplement and amplify its provisions, it does not provide a basis for diluting the obligations contained therein. India therefore considers that this Agreement does not have any effect on the Court’s jurisdiction in the present case’.25

Given the fact that Pakistan hinged its entire case on the terms of the Agreement it concluded in 2008 with India, it is opportune to refer to that Agreement in full:Open image in new window

4 Indication of provisional measures: article 41 of the statute of the ICJ

The hearing held on May 15, 2017 was concerned with the issue of a provisional measure requested by India for stay of execution of the death sentence decreed by a military court of Pakistan against Mr. Jadhav. The Court is empowered to indicate such a provisional measure under Article 41 of the Statute ‘to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party’. The Court may exercise this power only ‘if it is satisfied that the rights asserted by the party requesting such measures are at least plausible’.26 In addition, a provisional measure could be issued by the Court only if it, first, finds that there existed a “dispute” within the meaning of Article 1 of the Optional Protocol27; and second, that in respect of such a dispute it has prima facie jurisdiction.28 In that sense, it is not required for this purpose to pronounce ‘in a definitive manner that it has jurisdiction as regards the merits of the case’.29

The Court in its order of 18 May 2017, having heard the arguments of the Parties on May 15, 2017, concluded that ‘it has prima facie jurisdiction under Article I of the Optional Protocol to entertain the dispute between the Parties’.30 The following reasons were cited by way of support for its conclusion:
  1. 1.

    That ‘a dispute existed between the Parties as to the question of consular assistance under the Vienna Convention with regard to the arrest, detention, trial and sentencing of Mr. Jadhav’.31 In this regard it referred to India’s requests for consular access and Pakistan’s note conditioning the consideration of that request ‘in the light of India’s response to [its] request for assistance’ in the investigation process concerning him in Pakistan’.32

     
  2. 2.

    When the jurisdiction of the Court is founded on particular ‘treaties and conventions in force’ pursuant to Article 36, paragraph 1, of its Statute, ‘it becomes irrelevant to consider the objections to other possible bases of jurisdiction’.33 Accordingly, the Court concluded that it ‘need not examine these reservations further’.34

     
  3. 3.

    That it has ‘jurisdiction ratione materiae on the basis of Article I of the Optional Protocol’. In this regard, it observed that ‘that the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Vienna Convention ratione materiae’.35 In addition, it also ruled that ‘it cannot be concluded that Article 36 of the Vienna Convention cannot apply in the case of Mr. Jadhav so as to exclude on a prima facie basis the Court’s jurisdiction under the Optional Protocol’ citing the lack of any express provisions in the Vienna Convention on Consular Convention ‘excluding from its scope persons suspected of espionage or terrorism’.36

     
  4. 4.

    That the provisions of the 2008 Agreement do not expressly ‘limit the rights contained in Article 36 of the Vienna Convention’. Accordingly, the Court is not required ‘to decide at this stage of the proceedings whether Article 73 of the Vienna Convention would permit a bilateral agreement to limit the rights contained in Article 36 of the Vienna Convention’.37

     

Further, the Court found that there existed a ‘link between the rights claimed and the provisional measures requested’ in the present case, which is also necessary for indication of such measures,38 in as much as ‘these measures are aimed at preserving the rights of India and of Mr. Jadhav under Article 36, paragraph 1, of the Vienna Convention.’39

The only remaining issue at this round of oral hearing was whether there is urgency to indicate provisional measures. In terms of Article 41 of the statute of the ICJ such urgency is deemed to have been established if it is shown that without them an ‘irreparable prejudice could be caused to rights which are the subject of judicial proceedings’.40

In this regard, Pakistan, suggesting that there was no urgency as required by law, opposed indication of provisional measures on the ground that Mr. Jadhav can still apply for clemency and that a period of 150 days is provided for in this regard. According to Pakistan, even if this period started on 10 April 2017 (the date of conviction at first instance), it would extend beyond August 2017. India on the other hand submitted that the only judicial remedy available to Mr. Jadhav was the filing of an appeal within 40 days of the sentence rendered on 10 April 2017. Although, Mr. Jadhav may seek clemency, first from the Chief of Army Staff of Pakistan and secondly from the President of Pakistan, India pointed out that these are not judicial remedies.

The Court was not persuaded by Pakistan that there was no urgency for indication of provisional measures. It noted in this regard that Pakistan did not give any assurance that it would not execute the death sentence any moment after August 2017 ‘before the Court has rendered its final decision’. Accordingly, it concluded ‘that the conditions required by its Statute for it to indicate provisional measures are met’. It thereby ordered ‘that Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order’.

Before concluding the present proceedings, the Court made two incidental but important observations on the basis of its case law:

First, the Court pointed out that ‘with respect to the criteria of irreparable prejudice and urgency, that the fact that Mr. Jadhav could eventually petition Pakistani authorities for clemency, or that the date of his execution has not yet been fixed, are not per se circumstances that should preclude the Court from indicating provisional measures.’41

Second, it noted that the Court in proceedings of this nature is not concerned about the right of a State to award death sentence, as it is not the function of this Court ‘to act as a court of criminal appeal’.42

5 Appraisal

5.1 Issue of provisional measures is consistent with the past practice of the court

The indication of provisional measures by the ICJ in the Jadhav case is binding on Pakistan.43 The Court indicated this as much by the use of the words ‘shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order’. The order of the Court proceeded thus on familiar lines drawn from the Order it issued in the Avena cases and for most part in the other two cases, the Breard and La Grand case.44 In that sense the present Order is consistent with the past practice.

It may be recalled that the Court ordered similar stay of execution of death sentence in the Breard case (Paraguay v. United States), the La Grand case (Federal Republic of Germany v. the United States) and the Avena cases (Mexico v. the United States). In all these cases, it is important to note that, like Pakistan, the United States failed to inform the concerned States the fact of arrest of its national(s). Equally, it did not apprise the arrested foreigner(s) of their right to receive consular assistance from the country of their nationality. However, unlike Pakistan, the USA did not deny its obligation under Article 36 (1) of the 1963 Vienna Convention, and even apologized for this failure.45 Facts of those cases in addition revealed that at least in the initial stage, the nationality of the arrested persons was mistaken or could not be readily established. The implementation of the orders of the Court also suffered in some of these cases, as under the law of the USA ICJ ‘decision was not self-executing’.46 Pakistan does not have any such difficulties and in fact it based its entire case on the argument that VCCR is not applicable to the case of Jadhav, who, it alleged, was a spy of India.

5.2 The 2008 agreement between India and Pakistan does not appear capable of denying the court of its jurisdiction

The next stage for the Court is to hear arguments on its jurisdiction. The Court is not likely to join these issues of jurisdiction which Pakistan is likely to raise with the arguments on merits which would follow in case the Court finds in favor of its jurisdiction. Arguments on jurisdiction would now turn on the effect of the provisions of 2008 Agreement between the two countries; and in that sense they are likely to be treated exclusively of preliminary character.47 The Court would have to first decide whether the terms of that Agreement are compatible with the obligations of the Parties under Article 36(1) of the 1963 Vienna Convention. Even though Pakistan also objected to the jurisdiction of the Court on the basis of reservations India and Pakistan made while accepting the compulsory jurisdiction of the Court under Article 36(2) of the Statute of the Court, the Court would no longer be entertaining any further arguments in this regard as noted above.48 These two provisions, Article 36(1) and 36(2) offer two completely independent and different bases for jurisdiction of the Court. In that sense there is no opportunity for Pakistan to internationalize such of those issues as exist in the matter of the Indian sovereignty over Kashmir, which India continues to hold settled best by bilateral negotiations between India and Pakistan on the basis of the Simla Agreement.

On the matter of jurisdiction, the Court would look for more complete arguments from Pakistan and India on the scope of Article 73 of the 1963 Vienna Convention. Article 73(1) makes it clear that it ‘does not affect other international arrangements in force as between the parties’. As Anthony Aust in his well acclaimed treatise on the treaty law and practice noted that, ‘it was necessary since numerous consular agreements existed before the Convention was adopted, and it was not considered necessary or desirable to replace them by the uniform provisions of the Convention; states should be free to enter into agreements which do not simply repeat the Convention.49

Article 73(2) therefore provides for such a freedom whereby States are not ‘precluded from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof’.

Pakistan submitted that the action it took in the Jadhav case is fully in accordance with the 2008 Agreement, which in its view was concluded by way of supplementing and amplifying Article 36 (1) of the Vienna Convention, given the “fractious relationship” that existed between India and Pakistan. It cited in this regard Article (vi) of the 2008 Agreement which provided for the right of each Party to treat the matter of consular access in respect of nationals of other Party, accused of crimes affecting national security, on the merits of each case. Accordingly, it claimed that it is justified to take a decision on the matter of consular access sought by India in the light of the latter’s response to its request seeking cooperation ’in the investigation of the case concerning Jadhav and his alleged accomplices’.

The Court thus would have to decide first whether Article (vi) of the 2008 Agreement could be regarded as well within the ambit of Article 73(2). In other words, it would have to be satisfied that its terms are merely supplementing and amplifying the Convention and not derogating from the same. This is required because as Aust explained:

‘Paragraph 2 therefore enables parties to conclude supplementary consular agreements which do not derogate from the obligations of the Convention, but prohibits, though by implication, the conclusion of treaties which, by providing for more limited rights or obligations, would so derogate’.50

This is a logical and indeed necessary conclusion, as Aust noted, on the legal implication of paragraph 2 of Article 73 of the Vienna Convention ‘because of the need for certain uniform minimum standards.’51 On this well-recognized objective of the VCCR, both India and Pakistan appear to agree.52

5.3 Right of consular access under Article 36(1) of the 1963 Vienna Convention cannot be denied even in the case of crimes of spying, sabotage and terrorism

In opposing the jurisdiction of the Court, Pakistan would have to bear the burden of proof53 to show that Article (vi) of the 2008 Agreement is the applicable instrument for cases involving “spying, sabotage or terrorism” and not the 1963 Vienna Convention. To convince the Court that it lacked jurisdiction, it has to, as noted earlier, additionally show that the terms of the 2008 Agreement do not derogate from the provisions of Article 36(1) of that Convention.54 On the point that cases of spying and national security are excluded from the scope of the 1963 Vienna Convention, Pakistan already admitted that the Convention is silent on this matter. In fact, as the Court itself pointed out, it could also be said that the Convention did not expressly exclude cases affecting national security from the scope of Article 36(1). Alternatively, as the Convention did not refer to any specific category of cases coming within the scope of that Article, it cannot be deemed to have excluded all other categories it did not so expressly referred to. It may be of some relevance to note that Italy made a declaration at the time of becoming a party to the 1963 Convention, which expressly noted that ‘[W]ith reference to the provision contained in Article 36, paragraph 1 (c), of the Convention on Consular Relations, the Italian Government considers that the right of a consular official to visit nationals of his State who are for any reason held in custody and to act on their behalf may not be waived, inasmuch as it is embodied in general law’.55 This assertion was not questioned by any other party to the Convention either explicitly or implicitly.

Moreover, the terms of the 2008 Agreement like most other bilateral arrangements56 did not even refer to the rights and obligations the Parties otherwise contracted under the 1963 Vienna Convention. Under the circumstances, the main objective of the Agreement, as India suggested, is ‘for furthering the objective of humane treatment of nationals of either country arrested, detained or imprisoned in the other country.’ In that sense, the 2008 Agreement may be considered as not having any adverse effect on the obligations of the Parties in terms of the 1963 Vienna Convention, which in any case it cannot derogate from. If this line of argument were to hold, as it is quite likely, Pakistan may not able to succeed in convincing the Court that it did not enjoy jurisdiction in the Jadhav’s case because of the terms of Article (vi) of the 2008 Agreement.

5.4 The case on merits: some relevant considerations

It is therefore highly probable that the Court would proceed to the stage beyond jurisdiction and consider the case on its merits. This should give India opportunity to make a strong case in favor of its right of consular access to Jadhav, which is denied to it by Pakistan. Equally, it should be able to press the point that Pakistan also violated Jadhav’s right under Article 36(1)(b) to communicate with the Indian consular officials and seek proper legal representation. Pakistan should have informed him of his right in this regard before it started any formal interrogation.

The jurisprudence of the Court on this matter is clear and unambiguous. The requirement of “without delay” for the purpose of the operation of the rights and obligations under Article 36(1)(a) (b) and (c), the Court noted, ‘does not imply “immediately”, need not precede any interrogation, so that the commencement of interrogation before the information is given would be a breach of Article 36’.57 The duty to “inform” the country concerned would arise on the other hand as soon as the foreign nationality of the person is identified. ‘The right of the State of nationality to be notified of the arrest of its national’, the Court clarified, ‘is a right violated if not notified without delay irrespective of the action the State might or might not take in providing any help to the arrested national or the actual result of judicial proceedings or whether a different verdict would have been rendered’.58 The same is true of the obligation under Article 36(1)(c).59

A reading of the Avena case also makes it clear that once the Court finds a violation of the right of consular access, it would order as a necessary consequence “a review and reconsideration” of the national’s case. Such a “review and reconsideration”, as the Court noted, should cover both “the sentence and conviction”.60 Moreover, Pakistan cannot treat the obligation to review and reconsider in a casual way. The Court indicated that this obligation would entail the following consequences: that the review and reconsideration should be effective; it should take into account the violation of the right set forth in the Convention; and guarantee that the violation and probable prejudice caused by that violation should be fully examined.61 The Court stressed that Article 36(1) is a treaty right to which full weight should be given in case of a violation of this right ‘whatever may be the actual outcome of such review and reconsideration’.

5.5 Court’s earlier jurisprudence: some constraints

This, as the Court added, however, is independent of the due process rights under the law of the country concerned and different from ‘harm to a particular right essential for a fair trial’.62 In the same breadth, the Court also indicated that it does not consider the right to notification and consular communication under the Vienna Convention a fundamental human right that constitutes part of due process in criminal proceedings. The Court stressed that it did not find any support for this conclusion from the object and purpose of the Convention or from the travoux preparatoire. Accordingly, the Court noted that it is not persuaded by the argument that the right is so fundamental that its infringement will ipso facto produce the effect of vitiating the entire process of the criminal proceedings conducted in violation of this “fundamental right”.63

The Court also gave a sure hint that in evaluating the merits of the case and the consequences that ought to follow in case of a violation of the rights of the Applicant State and its national under Article 36(1) of the VCCR, it would stop short of questioning the ‘correctness as such of any conviction or sentencing’ all of which ‘is an integral part of criminal proceedings before the courts’ of the country concerned.64The Court made it very clear when it noted in its Order of 18 May 2017 that it is not its function to ‘act as a court of criminal appeal’ in such cases.65

In view of the above, India would have some difficulty to persuade the Court to declare that the sentence of the Pakistan’s military court, is violative of international law and the provisions of the Vienna Convention.66 The other consequential reliefs India sought would not follow if this were to be the case. It may be recalled that India also sought an order from the Court against Pakistan to ‘annul the decision of the military court’; and failing any action on the part of Pakistan in this regard, for the Court itself to ‘to declare the decision illegal’ and ‘directing it to release the convicted Indian National forthwith.’67

The more optimistic scenario that might be conceived, however, is action on the part of Pakistan seriously engaging in the review and reconsideration of the conviction and sentencing. It might even consider an executive clemency on the basis of an appeal from Jadhav’s family pending before its authorities. India in any case, post-Jadhav case, could arrange a proper legal representation and enable his defence team to present necessary evidence about his innocence.

After all, Article 36 of the VCCR is regarded as symbolizing the same rights at the international level which are guaranteed to persons under detention or arrest under the US Constitution, otherwise known as the Miranda rights.68 Above all, confession extracted as a result of torture in and of itself is invalid. It is worth emphasis that torture is a crime, and under international law its prohibition is considered as a principle of jus cogens from which no derogation is admissible.69 In that sense, Pakistan cannot rely on the confession it obtained under duress and in custody, which the ICJ promptly declined to give any value. If that were to be the only basis on which it intends to justify Jadhav’s “conviction and sentencing”, Pakistan would surely be held responsible for not honoring the Court’s verdict which is likely to order “review and reconsideration” of the “conviction and sentencing”.

5.6 Obligations of ‘review and reconsideration’: further amplification to protect due process of law, fair trial and fundamental human rights is in order

This process could be greatly helped if the ICJ could order the review and reconsideration focusing on the lack of fair trial and due process of law in the Jadhav case as Pakistan did not allow India consular access, and awarded him capital punishment ‘solely based on a coerced confession’; in addition to holding the entire trial ‘secretly with no defence lawyer permitted’.70 Nothing should prevent the Court to develop the right of consular access further, moving beyond the parameters set by the Avena case breathing into it all the universally accepted principles governing the rights of the accused: presumption of innocence unless proven guilty; right against self-incrimination, open and transparent trial, right to counsel, and above all due process of law. In this regard, Judge Cancado Trindad showed the way when he made a compelling case for the Court in his separate but concurrent opinion to move further and take the occasion of the present case to humanize international law in the domain of consular law. The Court would do well to heed his call when he emphasized that ‘Article 36(1)(b) of the aforementioned 1963 Vienna Convention, in spite of having preceded in time the provisions of the two U.N. Covenants on Human Rights (of 1966), could no longer be dissociated from the international norms of protection of human rights concerning the guarantees of the due process of law and their evolutive interpretation.’71 The action of protection thereunder, ‘in the ambit of the International Law of Human Rights, does not seek to govern the relations between equals, but rather to protect those ostensibly weaker and more vulnerable’; it is this “condition of particular vulnerability” that the right to information on consular assistance “seeks to remedy”.72 Further, according to him, ‘The right to information on consular assistance is, in the circumstances of the cas d´espèce, inextricably linked to the right to life itself, a fundamental and non-derogable right, rather than a simply “plausible” one’.73 He went to add, ‘This is true not only for the stage of the merits of the case at issue, but also for the stage of provisional measures of protection, endowed with a juridical autonomy of their own’,74 It is highly gratifying that Judge Cancado Trindad referred in this connection very approvingly to the well merited submissions India made stressing that ‘[w]here the rights of an individual are violated, consequences must follow’.75

The Indian submission would, under the circumstances, may have to be built on its earlier impressive work76 and press the Court to move beyond the Avena case to align its jurisprudence with the contemporary orientation of international law with focus on protection of human beings which is the core and substance of rule of law at the international level as it is at the domestic level. Given the fact that it is the largest democracy in the world with a proud and inspiring record of upholding the fundamental human rights at the domestic level, India is singularly placed to press the Court to move further than the Avena case to enlarge its focus in such cases as this and uphold Jadhav’s fundamental right to have a fair trial, proper legal representation and effective application of the principle due process of law.

Finally, the Jadhav case illustrates how international law and means of settlement it provides could offer a useful avenue to States when political means are blunted or neutralized yielding no satisfactory outcomes. The case further brings home to States that they should modulate their claims against each other for achieving better results by aligning their foreign policy goals and political strategies with the rights and obligations they have under international law.

Footnotes

  1. 1.

    India requested the Court to award: ‘(1) a relief by way of immediate suspension of the sentence of death awarded to the accused, (2) a relief by way of restitution in integrum by declaring that the sentence of the military court …is violative of international law and the provisions of the Vienna Convention, and (3) restraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan. (4) if Pakistan is unable to annul the decision, then this Court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian National forthwith.’ See, India’s application before the ICJ, the Jadhav Case (India v Pakistan), ICJ Order (18 May 2017) 1 [2].

  2. 2.

    See India Was Involved in 6 Cases at ICJ, 4 of Them Against Pakistan <https://www.thequint.com/world/2017/05/16/india-pakistan-international-court-of-justice> (16 May 2017) see, V.G. Hegde, India and international settlement of disputes, 56 Indian J Intl L (2016) 1–40.

  3. 3.

    India has tried to settle some of these disputes through arbitration. The famous Rann of Kutch award of 1968 <http://legal.un.org/riaa/cases/vol_XVII/1-576.pdf> involving India and Pakistan is one example. The Berubari case involving India and Pakistan initially (1958–1971), In Re: The Berubari Union AIR 1960 SC 845 and later the Land Boundary Agreement of 1974 including the Tin Bigha corridor between India and Bangladesh as well as the more recent agreement settling all the issues pending for over 68 years over the demarcation of the land boundary between the two countries are examples of settlement of disputes by negotiation. See, <http://www.mea.gov.in/press-releases.htm?dtl/26048/Exchange+of+enclaves+between+India+and+Bangladesh. For a fuller analysis, see Hosna J. Shewly, “India and Bangladesh Swap Territory, Citizens in Landmark Enclave Exchange”, http://www.migrationpolicy.org/article/india-and-bangladesh-swap-territory-citizens-landmark-enclave-exchange>. India is also engaged in bilateral negotiations with China to settle its pending land boundary issues. For an early analysis of the Indian case on this problem, K.Krishna Rao, The Sino-Indian Boundary Question and Intenational Law, 11 International & Comparative L Q (1962) 375–415. See generally, Surya P. Sharma, India's Boundary and Territorial Disputes (Vikas Publishing, New Delhi, 1971). More recently, see, Prabhakar Singh, Sino-Indian Attitudes to International Law of Nations, States and colonial Hangovers, 3 Chinese J Comp L (2015) 348–374.

  4. 4.

    India settled its maritime boundaries with Maldives, Sri Lanka, Indonesia, Thailand and Mynmar (earlier Burma) precisely using the jurisprudence the Court developed on maritime boundary delimitation. See, S.P.Jagota, Maritime Boundary (Martinus Nijhoff, Dordrecht, 1985). It settled its maritime boundary with Bangladesh by accepting the latter’s request to submit the matter to arbitration. For the award on this matter see the Award In The Matter Of The Bay Of Bengal Maritime Boundary Arbitration (Bangladesh v. India) 7 July 2014 <https://pca-cpa.org/en/cases/18/>. Also see the concurrent and dissenting opinion of Dr. P.S.Rao, in, Bay of Bengal Maritime Boundary Arbitration, ibid. Rüdiger Wolfrum (President), Jean-Pierre Cot, Thomas A Mensah, Dr. PS Rao, Ivan Shearer constituted the Tribunal.

  5. 5.

    For the Indian declaration accepting the compulsory jurisdiction of the ICJ of 15 September 1974, see, <http://www.icj-cij.org/en/declarations/in>.

  6. 6.

    Peter H. Bekker, Aerial Incident of 10 August 1999 (Pakistan v. India), Judgment (Jurisdiction), 94 American J Intl L (2000) 707, 712–713.

  7. 7.

    The Court found jurisdiction, for example, against the objections of the United States of America in the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392. As examples of other cases, see The Mavrommatis Case, PCIJ, [1924], Ser.A, no. 2, 34; Rights of Minorities of Upper Silesia, PCIJ [1928] Ser.A/B, no. 15, 24–26.

  8. 8.

    Fisheries Jurisdiction case (Canada and Spain) [1998] ICJ Rep [44].

  9. 9.

    Shabtai Rosenne, The Law and Practice of the International Court, 1920–1966 (Martinus Nijhoff, Boston/ London, 1997) 812.

  10. 10.

    The Anglo-Iranian case (U.K. v. Iran) [1952] ICJ Rep. 104: “the Court cannot base itself on a purelv grammatical interpretation of the text. It rnust seek the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court”.

  11. 11.

    David D. Caron, War and International Adjudication: Reflections on the 1899 Peace Conference, 94 American J Intl L (2000) 2–30, 28.

  12. 12.

    On these functions, see, Sir Hersch Lauterpacht, The Development of International Law by the International Court (Stevens and Sons Ltd., London, 1958).

  13. 13.

    Vienna Convention on Consular Relations, 596 UNTS (19 March 1967) 261.

  14. 14.

    Ibid.

  15. 15.

    See ICJ order of 8 May 2017, 3 [6].

  16. 16.

    The Court noted that ‘India contends that Pakistan has breached its obligations under the above-mentioned provisions in the matter of the arrest, detention and trial of Mr. Jadhav. The Applicant asserts that Mr. Jadhav has been arrested, detained, tried and sentenced to death by Pakistan and that, despite several attempts, it could neither communicate with nor have access to him, in violation of Article 36, sub-paragraphs (1) (a) and (1) (c) of the Vienna Convention, and that Mr. Jadhav has neither been informed of his rights nor been allowed to exercise them, in violation of sub-paragraph (1) (b) of the same provision. India asserts that Article 36, paragraph 1, of the Vienna Convention “admits of no exceptions” and is applicable irrespective of the charges against the individual concerned.’ Ibid. 6 [20]. For the arguments of India, see CR 2017/5. Agent and joint Secretary of the Ministry of External Affairs (MEA) of India Mittal’s submissions are at 11–14. Co-Agent and the Legal Adviser of the MEA Dr. V.D.Sharma’s submissions are at 15–17, and the Counsel and the main advocate of India, Senior Supreme Court Advocate, Shree Harish Salve’s submissions are at 17–43. These are copiously summarized in the Declaration of Judge Dalveer Bhandari, attached to the ICJ Order of 18 May 2017.

  17. 17.

    Ibid, 10 [40].

  18. 18.

    Ibid, 6 [20].

  19. 19.

    Jadhav Case, supra note 1, 7 [22].

  20. 20.

    Ibid, 77 [23].

  21. 21.

    ‘There is no reference to espionage, spying, let alone terrorism, in the travaux and that makes it abundantly clear that none of the Parties that were engaged in this process was even considering the application of this convention to terrorists or spies’, CR 2017/6 See Public sitting held on Monday 15 May 2017, at 3 p.m., at the Peace Palace, President Abraham presiding, in the Jadhav Case (India v Pakistan), CR 2017/6, Oral Argument of Counsel Khawar Qureshi, Q.C. at 20.

  22. 22.

    supra note 1, 11, para 41. According to the counsel of Pakistan, ‘It is quite precise.’ Further, ‘not only is this a binding Agreement between the two States, it provides helpful, if not vital, amplification of the understanding and operation of the Vienna Convention between two States that have been at war on more than two occasions.’ On the matter of providing consular access, he noted, that it was the position of the Pakistan’s Foreign Office that it would be provided with reference to the 2008 Agreement. Ibid, 22–23.

  23. 23.

    Ibid. 21.

  24. 24.

    Ibid. [25].

  25. 25.

    supra note 1, 7, [21].

  26. 26.

    Ibid, 9, [35].

  27. 27.

    Ibid, 8, [28].

  28. 28.

    Ibid, 8, [30].

  29. 29.

    Ibid, 5, [15]. That is, whether Pakistan was justified in denying India its right of consular access to its detained national; and what legal consequences flow from such a denial if it is established as a violation of the Article 36 (1) of the Vienna Convention on Consular Relations.

  30. 30.

    Ibid, 9, [34].

  31. 31.

    Ibid, 8, [29].

  32. 32.

    It is interesting to note that this observation of the Court ruled out any possible objection Pakistan might have or could have raised against the prima facie jurisdiction of the Court on the ground that India did not formally inform Pakistan that it in its opinion a dispute existed on this matter and that it intends to proceed to litigate its rights before the ICJ as provided under Articles 2 of the Optional Protocol. Pakistan did not choose to rely on this provision. It chose instead to contest the matter of jurisdiction on the grounds of applicability of 2008 Agreement on Consular Access. In any case it appears the provisions of Article 2 and 3 of the Optional Protocol appear to be more facilitative and not mandatory only to allow parties to choose, subject to mutual agreement, arbitration or conciliation as a mode of settlement of the dispute, instead of resorting to the ICJ, which is designated as a default procedure.

  33. 33.

    See Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, [1972] ICJ Rep 60 [25]; see also Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, [2007] ICJ Rep (II), 872, [132]. Cited by the Court at 8 [26].

  34. 34.

    Ibid

  35. 35.

    Ibid, 8, [30].

  36. 36.

    Ibid, 9, [32].

  37. 37.

    Ibid, [33]

  38. 38.

    Ibid, 12, [46].

  39. 39.

    Ibid, 12, [48].

  40. 40.

    See the Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures (Order of 19 April 2017) [88]. The Court noted in that case that ‘the power of the Court to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights in dispute before the Court gives its final decision’, Ibid [89].

  41. 41.

    See e.g., Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, ICJ Rep 91 [54].

  42. 42.

    See, La Grand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, ICJ Rep (I), 15 [25]; Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, ICJ Rep 89 [48].

  43. 43.

    In this regard the position of the Court evolved. On the doubts expressed about the binding nature of provisional measures, prior to the decision of the Court in the Avena cases (on this see the next note), see, Shabai Rosenne, supra note 9, Vol.III (Procedure), 1429. Commenting on the effect of the “new” Article 78 of the Rules of the Court, Rosenne took the view that ‘It is doubtful if the Court could impose any sanctions for failure to comply with any request to be made under Article 78’ concerning information from the parties on any matter connected with the implementation of any provisional measures it has indicated. Article 41(2) of the Statute of Court read with Article 77 of the Rules of the Court provides for any decision taken by the Court indicating provisional measures should be communicated forthwith to the Secretary General for onward transmission to the Security Council. On the role of the Security Council, Rosenne opines that ‘there is room for skepticism how far the competence of the Security Council may or can usefully be invoked in face of the refusal of a State to observe the measures indicated or where the jurisdiction of the Court is contested.’ Ibid, 1462. In an earlier edition of the same work (of 1965), Rosenne doubted also whether a ‘recalcitrant State could be subjected to any procedural disadvantages in so far it concerns the Court.’ Referring to the same, Mani questioned whether this skepticism was justified and noted that the party’s non-compliance with the provisional measures indicated would entail consequences especially if the Court ‘were to find jurisdiction on the merits of the case and further, if it were to pronounce a judgment in favor of the applicant party’. V.S. Mani, International Adjudication: Procedural Aspects, (Radiant Publishers, New Delhi, 1980) 309. See generally on interim measures of protection, Ibid. 276–309.

  44. 44.

    It may be noted that in the Breard and La Grand cases, the binding nature of provisional measures orders remained unclear, because the obligation was characterized by the word “should”. The orders issued by the Court in the Breard case were interpreted by the US State Department to be of non-binding nature. Henkin took exception to the view expressed by US Secretary of State Mrs. Madeline Albright in her letter to the Governor of state of Virginia to this effect, even though she did write to him requesting the stay of execution of the death sentence of Breard in deference to the orders of the ICJ. In Henkin’s view, ‘[T]hat the Order which indicated that the United States “should take all measures” was not designed, in my view, to detract from the binding character of the Order’. Henkin also regretted ‘that the Department of State failed to declare, clearly and firmly, that it was “the foreign policy of the United States” that the execution should not take place pending a final decision in the ICJ proceedings’. See, Louis Henkin, Provisional Measures, U.S. Treaty Obligations, and the States, 92 American J Intl L (1998) 679–683, 679, 683. In its provisional measures order in La Grand, for example, the Court indicated that the United States ‘should take all measures at its disposal to ensure that Walter La Grand is not executed pending the final decision in these proceedings.’ The Court's subsequent judgment on the merits in La Grand, however, removed any doubt regarding the nature of the Court's provisional measures orders, holding that such orders are binding. This trend continued from thereon and, the mandatory language used by the Court in the Avena order provides that the United States ‘shall take all measures necessary to ensure that [the three Mexican citizens in question] are not executed pending final judgment in these proceedings.’ For a review of the indication of provisional measure staying the execution of death sentences awarded by the US Courts, see William J. Aceves, Avena and Other Mexican Nationals (Mexico v. United States) Provisional Measures Order, 97 American J of Intl L (2003) 923–929, 927–928. La Grand (Germany v. U.S.), Provisional Measures (Int'l Ct. Justice Mar. 3, 1999); Vienna Convention on Consular Relations (Para. v. U.S.), Provisional Measures, 1998 ICJ Rep 11 (April 9). For a discussion of the La Grand provisional measures order, see, William J. Aceves, Case Report: Case Concerning the Vienna Convention on Consular Relations (Federal Republic of Germany v. United States) [LaGrand], 93 American J of Intl L (1999) 924; for the Breard order, see, William J. Aceves, Case Report: Application of the Vienna Convention on Consular Relations (Paraguay v. United States), 92 American J Intl L (1998) 517.

  45. 45.

    On July 7, 1997, the State Department acknowledged that the non-notification of the consular authorities was a breach of the Convention and apologized for it. For the facts of the case, see, Jonathan I. Charney and W. Michael Reisman, “Facts”, in Agora: Breard, 92 American J Intl L (1998) 666675, 667.

    The Breard case was resolved in November 1998, when the U.S. Department of State issued an apology acknowledging the clear violation of the Vienna Convention and Paraguay requested that the case be removed from the ICJ docket. In its statement, the United States acknowledged its violation of the Vienna Convention and conveyed ‘its apologies to the Government and people of Paraguay.’ The United States also announced its intention ‘to ensure that the consular rights of foreign nationals in the United States are respected, and that Paraguayan and other foreign nationals in the United States are properly notified of their right to request consular assistance if they are arrested or detained.

    See for an account, Willam Aceves, Case Concerning the Vienna Convention on Consular Relations (Federal Republic of Germany v. United States) Provisional Measures Order, 93 American J Intl L (1999) 924–928, 927.

  46. 46.

    Kristina Daugirdas and Julian Davis Mortenson (ed) Contemporary Practice of the United States Relating to International Law, 108 American J Intl L (2014) 517, 533.

  47. 47.

    In the La Grand case America raised more issues of admissibility than jurisdiction: See, La Grand (Germany v United States of America), Judgment, [2001] ICJ Rep 466 [60–64, 488–489]. The Court noting the submission of the US that it apologized for its lapse and that ‘State practice shows that this is the appropriate remedy for such a violation’, observed that ‘[W]hile an apology may be an appropriate remedy in some cases, it may in others be insufficient’, 64, 489.

  48. 48.

    See, fn. 34 above.

  49. 49.

    Anthony Aust, Modern Treaty Law and Practice (CUP, NY, 2000) 179.

  50. 50.

    Ibid.

  51. 51.

    Ibid, citing L. Lee, Consular Law and Practice, 2nd edn (OUP, Oxford, 1991) 623–629.

  52. 52.

    This is well observed by Judge Cançado Trindade in his concurrent opinion 2 [4] <http://www.icj-cij.org/docket/files/168/19446.pdf>.

  53. 53.

    On the burden of proof and the general principle that ‘it is litigant seeking to establish a fact who bears the burden of proving it…’. See, Shabtai Rosenne, supra note 9, Vol. III (Procedure), 1083. See for the quotation, the Military and Paramilitary Activities in and against Nicargua (jurisdiction and admissibility) case, and the Frontier Dispute case (Burkina Faso/Mali) case. It may also be noted that ‘the distinction between proving the facts (which, as stated are rarely formerly challenged), and satisfying the Court as to the law (governed by the principle curia jura novit), is not often clearly drawn.’ Ibid, 1084. See also V.S. Mani, supra note 43 43, 204. See Ch.VI generally on presentation of evidence, 187–247.

  54. 54.

    supra note 16.

  55. 55.

    Declarations and Reservations to the 1963 Vienna Convention on Consular Relations, 596 UNTS (1963) 261.

  56. 56.

    See for example, The U.S.-U.S.S.R. Convention which contains specific provisions guaranteeing the right of consular officers to communicate with, assist and advise their nationals, and prohibiting restriction of access to consular establishments. S. Houston Lay, The United States-Soviet Consular Convention, 59 American J Intl L (1965) 876–891

  57. 57.

    See the Avena case, supra note 44 [87].

  58. 58.

    Ibid [102]

  59. 59.

    Ibid [103].

  60. 60.

    Ibid [122].

  61. 61.

    Ibid [138].

  62. 62.

    Ibid [139].

  63. 63.

    Ibid, [124].

  64. 64.

    Ibid, [121].

  65. 65.

    supra note 42.

  66. 66.

    For the submissions of India, as noted by the Court, see Order of the Court, 18 May 2017, supra note 1, para 2, parts (2)-(4), 2.

  67. 67.

    Ibid.

  68. 68.
    See for a fuller analysis of the position of the US Courts on claims seeking suppression of custodial statements in the light of violation of Article 36, Rebecca E. Woodman, “International Miranda? Article 36 of the Vienna Convention on Consular Relations”, 6 J Kansas Bar Association (2001) 41–50, 46:

    It has been argued that the right of notification in Article 36 of the VCCR encompasses fundamental issues similar to those protected by the Miranda doctrine, established to protect individuals in custody by ensuring that they are made aware of certain fundamental constitutional rights, which can only be waived knowingly and voluntarily. Further, failure to equate Article 36 with a fundamental constitutional right and thereby foreclosing a finding of prejudice for its violation is flawed, because treaty provisions are the "law of the land" under the Supremacy Clause as much as federal statutes and the Constitution. Finally, Article 36 of the VCCR embodies a presumption of prejudice when a foreign national is arrested, inasmuch as Article 36 is a recognition that an individual arrested in a foreign country is at a unique disadvantage, and the denial of rights under Article 36 “deprives the foreign national of equality of legal process and the ability to mount a proper defense.

    The author who served as an Assistant Appellate Defender at the Appellate Defender Office in Topeka, Kansas for ten years, and specialized in death penalty appeals concludes (at p. 50) her illuminating analysis thus:

    If, as one senior State Department official has said, the rights under Article 36 of the VCCR constitute "a diplomatic Miranda warning”, then they should be enforced as such. Indeed, if there is no sanction for a violation of the rights under Article 36, then law enforcement officials may well be inclined to disregard them. And they do, as the cases discussed in this article clearly illustrate. Moreover, reciprocity is the foundation of international law. The failure to comply with, and enforce, the notification rights under Article 36 of the VCCR in the United States sends a dangerous signal to other nations that the United States does not intend to honor its treaty obligations. This not only jeopardizes the credibility and world leadership of the United States, it poses a serious threat to American nationals abroad.

    This is a warning the successive US Secretaries of State have expressed urging the state authorities pay full respect to the orders of the ICJ staying execution of death sentences and conduct review and reconsideration of the sentencing and convictions awarded in violation of Article 36 (1) of the VCCR. In September 2013, Secretary of State John Kerry wrote a letter to Texas Governor Rick Perry and Texas Attorney General Greg Abbott, urging them to review Tamayo’s case incompliance with the United States’ international obligations. See Kristina Daugirdas and Julian Davis Mortenson (ed) supra note 46, 323.

  69. 69.

    See for example, Prosecutor v. Furundžija, Judgement, case No. IT-95-17/1-T, T.Ch., 10 December 1998 [153, 154], where the Tribunal expressly linked the status of the prohibition of torture as a jus cogens norm to the ‘importance of the values it protects’, noting that ‘[c]learly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community’. This was quoted with approval by the European Court of Human Rights in Al-Adsani v. United Kingdom (Application No. 35763/97), judgement of 21 November 2001 [30]. For a recent analysis of the principle of jus cogens, Second report on jus cogens by Dire Tladi, Special Rapporteur of ILC, UN/ILC doc. A/CN.4/706, 10 [20] <http://legal.un.org/docs/?symbol=A/CN.4/706>.

  70. 70.

    See Upendra Baxi, The Sword of Global Justice, The Indian Express (New Delhi) (25 May 2017).

  71. 71.

    Concurring Opinion of Judge Cancado Trindade, Order of the Court, 18 May 2017, supra note 1 [15].

  72. 72.

    Ibid [23].

  73. 73.

    Ibid, 6, [19].

  74. 74.

    On the juridical autonomy of provisional measures, Judge Cancado Trindad noted its component elements: the rights to be protected, the obligations proper to provisional measures of protection; the prompt determination of responsibility (in case of non-compliance), with its legal consequences; the presence of the victim (or potential victim, already at this stage), and the duty of reparations for damages. Ibid [7]. Judge Cancado Trindad also based his observations on ‘the pioneering Advisory Opinion no 16 on the Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (of 01.10.1999), advancing the proper hermeneutics of Article 36(1)(b) of the 1963 Vienna Convention, reflecting the impact thereon of the corpus juris of the ILHR’ [7, 12]; Hostages in Tehran, Merits, Judgment [1980] ICJ Rep [13]. He cited an impressive list of his own contributions in this direction at fn. 13, 15 and 16.

  75. 75.

    He noted in this regard the submissions of India: ‘The [1963] Vienna Convention recognizes the right of a State to seek redress on behalf of its national in this Court, where the rights of its national, and concomitantly its own rights under the Vienna Convention, are violated by another State’, (ICJ, doc. CR 2017/5, of 15.05.2017, 39, [89]). India also pointed out, he added, that ‘[t]he rights of consular access are a significant step in the evolution and recognition of the human rights in international law’, specifically referring to provisions of the U.N. Covenant on Civil and Political Rights (Articles 6, 9 and 14)”, (Pertaining to the right to life, the right to liberty and security of person, and the right to a fair trial, respectively; Ibid, 38–39 [86].

  76. 76.

    For the various submissions India made in defence of Jadhav’s individual human rights and its own rights under Article 36(1) to provide necessary legal representation to him, see the elaborate summaries Judge Bhandari made in his Declaration [4–9]. In particular Harish Salve the Indian counsel pertinently pointed out that ‘the more serious the charge [against Mr. Jadhav], the greater the need for the procedural safeguards to ensure that the accused gets a fair trial’, CR.2017/5, 40 [91].

Copyright information

© The Indian Society of International Law 2017

Authors and Affiliations

  1. 1.HyderabadIndia

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