India appears keen to use diplomatic means to resolve the issue, but initiating proceedings against Pakistan before the International Court of Justice would serve us better.
On April 10, Pakistan’s Inter-Services Public Relations announced that Kulbhushan Jadhav, an Indian national, had been tried before a military court and sentenced to death on charges of “espionage and sabotage activities”. Expectedly, India has reacted strongly to this development with external affairs minister Sushma Swaraj taking to the floor of parliament to denounce the “concocted charges” against Jadhav and cautioning Pakistan of “consequences” if his death sentence were to be carried out. India has also issued a demarche to the Pakistani government in protest to the imposition of the death penalty against its citizen without “adequate evidence” and has conveyed that if the sentence carried out it will be a case of “premeditated murder”. India officially maintains that Jadhav had been abducted while on a business trip to Iran, and has lodged strong protests with the Pakistani government over the denial of consular access to him despite repeated requests.
While Swaraj’s statement and the government’s demarche accurately state that the right to consular access is afforded to India under international law, neither indicated any intention of seeking legal remedies to enforce that right. At present, the government appears committed to pursuing the matter bilaterally through diplomatic representations and negotiations. Given the current ebb in relations, however, such bilateral efforts may be ill-conceived and ineffectual in securing access to Jadhav. Mindful of this, and in consideration of the mortal peril that may soon befall one of its nationals, India would be well-served in promptly initiating legal proceedings against Pakistan before the International Court of Justice (ICJ) for the violation of international law providing for consular access.
The right to consular access, encompassing the right of sending-state consuls to visit, converse with and arrange legal representation for nationals of the home-state in custody of the receiving-state, is provided for under article 36(1)(c) of the Vienna Convention on Consular Relations, 1963 (VCCR), to which both India and Pakistan are parties. This protective work performed by the consulates-general of one state within the territory of another is necessary to ensure the wellbeing of sending-state nationals in a foreign land and is also one of the most fundamental duties a sovereign state owes its citizens. Under the VCCR, the receiving state (Pakistan in this case) is obligated to facilitate this protection work by: (a) promptly informing the competent consulate when one of their nationals is arrested or detained; (b) inform the detained foreign national of his right to consular access with his home state; and (c) facilitate the protection work performed by the competent consuls in the form of visits, communications and legal arrangements made for the detainee. Pakistan’s conduct in Jadhav’s case, wherein it failed to inform Indian authorities of his detention and refused to provide consular access to Indian authorities despite multiple requests, is in contravention to the obligations it has undertaken under the VCCR and international law.
Pakistan’s breach of international law and Jadhav’s death sentence may be effectively challenged by recourse to the ICJ. Such recourse, while not automatically available under most international agreements, is almost providentially open in Jadhav’s case by virtue of both India and Pakistan being parties to the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963. The Optional Protocol, to which India and Pakistan acceded to in November 1977 and March 1976 respectively, provides that disputes arising out of the interpretation or application of the VCCR shall lie within the compulsory jurisdiction of the ICJ, and may accordingly be brought before the court by any party to a dispute.
Such recourse was taken by Mexico in 2004 when it instituted the Avena and Other Mexican Nationals case before the ICJ against the US seeking relief for Mexicans under the death sentence in various US states, in which the US had breached certain obligations relating to consular notification and consular communication. While the impugned action in the Avena case pertained to a failure to inform the Mexican nationals of their right to access a consul of Mexico at the time of their arrest, as opposed to the denial of consular access as is alleged in Jadhav’s case (although it remains unknown whether he was informed of his right to contact Indian Consuls), both obligations emanate from the VCCR. In the Avena case, the ICJ decided that the US was in breach of its obligations under article 36 of the VCCR and ruled that the US was required to grant “review and reconsideration” in the cases of the concerned Mexican nationals. The “review and reconsideration” ruling in the Avena decision was an elaboration of a standard earlier established by the ICJ in the Lagrand case between the US and Germany where a US court had sentenced German nationals to death without informing them of their rights under article 36 of the VCCR to communicate with their consular post. An Indian recourse to the ICJ may be expected to produce similar results with the ICJ ordering Pakistan to review and reconsider Jadhav’s trial, in which he may be afforded adequate legal representation arranged by the Indian government. This would satisfactorily protect India’s – and Jadhav’s – interests in the present dispute.
The larger benefit of instituting an ICJ proceeding, however, would be the protection that it would offer Jadhav in the current situation. The ICJ, under the provisions of its statute, has ordered binding provisional measures against the execution of death sentences during the pendency of consular access disputes before it. Such provisional measures were first ordered in the Lagrand case where Germany filed a request for provisional measures before the ICJ against the scheduled execution of German national Walter Lagrand. The ICJ, in consideration of the “irreparable prejudice” that would be caused to the rights of the parties to the dispute if the sentence were carried out, issued binding provisional measures directing the US to ensure that LaGrand was not executed pending the final decision of the court. Accordingly, India’s recourse to the ICJ under article 1 of the Optional Protocol, and a subsequent request for provisional measures under article 41 of the ICJ Statute would be the most efficacious way of ensuring that Jadhav’s death sentence is not carried out before the resolution of the alleged improprieties and illegalities surrounding this case.
Yateesh Begoore is a lawyer specialising in public international law.