A fortnight before making its death sentence on the Indian naval officer public, Pakistan narrowed the conditions under which it accepts the world court’s compulsory jurisdiction
New Delhi: As the matter opens for legal arguments in The Hague on Monday, Pakistan’s latest declaration limiting the circumstances under which it will subject itself to the jurisdiction of the International Court of Justice (ICJ) will have no bearing on the Kulbhushan Jadhav consular access matter that India has raised before the world court, legal experts say.
“This case is not being brought by India under the court’s compulsory jurisdiction in the ICJ Statute, Article 36(2), as recognised by both India and Pakistan. Hence the declaration has no effect whatsoever,” said Shashank Kumar, a Geneva-based public international lawyer, who was the first Indian judicial law-clerk at the ICJ, as well as a legal adviser to the Iran-US Claims Tribunal. He noted how the ICJ in 1971 had actually looked at the relationship between the exceptions a country made in accepting the ICJ’s omnibus compulsory jurisdiction under the ICJ Statute and its obligations to accept the court’s jurisdiction under specific treaties – and concluded that the latter would not be over-ridden by the former.
“Pakistan’s declaration is in relation to the compulsory jurisdiction exercised by the ICJ under Article 36(2) of the ICJ Statute,” Dhruv Sharma, a Delhi based lawyer who specialises in public international law, told The Wire. “But India has approached the court under Article 36(1) which relies on other treaties to confer jurisdiction upon the court; in this case, the other treaty is the Optional Protocol to the Vienna Convention on Consular Relations,” which assigns a role to the ICJ in the event of disputes between parties over the convention’s implementation.
It has taken Pakistan 57 years to modify its declaration on compulsory jrisdiction, which spells out the conditions under which it accepts the ICJ’s dispute settlement authority. On March 29, Pakistan’s permanent representative to the UN, Maleeha Lodhi, submitted this new declaration, which superseded the previous one made in September 1960.
Pakistan’s new declaration was deposited just a fortnight before a Pakistani army announced that Jadhav had been sentenced to death by a military court for espionage. Pakistan claims that Jadhav was behind a series of terror attacks and was a serving Indian military officer. Denying these allegations, India has said that Jadhav had already retired from the Indian navy andwas kidnapped by Pakistani security forces or its proxies from inside Iranian territory.
After India filed its application for provisional measures in the Jadhav case before the ICJ, court president Rony Abraham wrote to the Pakistan government to hold off on carrying out the sentence. Oral hearings on India’s request for provisional measures will take place on May 15. India’s arguments will be made by Supreme Court lawyer Harish Salve, with Ministry of External Affair’s joint secretary (legal and treaties) V.D. Sharma and joint secretary (Pakistan-Afghanistan-Iran) Deepak Mittal also travelling to The Hague.
The new declaration
Pakistan’s new declaration adds six more exceptions to the two contained in its 1960 declaration, under which Pakistan can’t be dragged to the Peace Palace in The Hague.
These changes bring Pakistan’s position on ICJ jurisdiction almost in line with India’s 1974 declaration, except for some key sentences that Pakistan may seek to highlight during the hearings on Monday. According to clause (e), the ICJ will not have compulsory jurisdiction on “all matters related to the national security of the Islamic Republic of Pakistan”.
Pakistan has repeatedly asserted that Jadhav is an Indian spy and that his arrest and trial are not covered by the Vienna Convention for Consular Relations. The substantive issue before the ICJ will be whether a man accused of espionage loses his entitlement to access by consular officials from his country.
Apart from the national security exception, the another clause from its new declaration that Pakistan may cite is that disputes under a multilateral treaty cannot be adjudicated by the ICJ unless all signatories to the pact were parties to the case before the court or the Pakistan government had specifically agreed to the jurisdiction.
But legal experts say these are moot arguments, since India has taken Pakistan to the ICJ under the terms of the VCCR and its optional protocol.
Previous battles on jurisdiction
This is not the first time that Pakistan has changed its declaration accepting the ICJ’s compulsory jurisdiction. The first submission was made on June 22, 1948, less than a year after independence. It was terminated and replaced with a new one in 1957.
This lasted for three years, before it was superseded in 1960. This lasted for over 40 years, before Pakistan finally modified it for the fourth time in March this year.
India first recognised the ICJ’s jurisdiction with a declaration in January 1956 that was superseded in September 1959 with a new one which increased the number of exceptions from four to six. These were:
(i) Disputes, in regard to which the Parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement.
(ii) Disputes with the Government of any State which, on the date of this Declaration, is a Member of the Commonwealth of Nations.
(iii) Disputes in regard to matters which are essentially within the jurisdiction of the Republic of India.
(iv) Disputes concerning any question relating to or arising out of belligerent or military occupation or the discharge of any functions pursuant to any recommendation or decision of an organ of the United Nations, in accordance with which the Government of India have accepted obligations.
(v) Disputes in respect of which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court.
(vi) Disputes with the Government of any State with which, on the date of an application to bring a dispute before the Court, the Government of India has no diplomatic relations.
India modified this declaration in 1974, which continues to stand today. New Delhi’s decision to include more reservations was dictated by Pakistan’s move in 1973 to challenge India before the ICJ to direct it from sending 195 prisoners of war to Bangladesh for trial. India claimed that the ICJ did not have jurisdiction, but this was not accepted by the court, which initiated oral hearings. India, however, did not take part in the oral proceedings from June 4-26, 1973.
Eventually, Pakistan withdrew the case after an agreement with India was signed in August 1973, but the case made India realise that it needed a more restrictive declaration. In September 1974, India submitted a new agreement, which increased the reservations to eleven, with sub-clauses.
The timing of Pakistan’s new declaration raises suspicions that Islamabad was attempting to fend off any possible move by India to approach the ICJ over Jadhav. But legal analysts say this should not impact India’s case, which has been filed under a different jurisdictional clause.
Pakistan’s arguments against India’s appeal to the UN judicial body’s authority would, therefore, have to be based on both countries’ acceptance of Vienna Convention’s Optional Protocol.
Further, India’s case that a subsequent declaration of compulsory jurisdiction does not hold water could be aided by a precedent before the same court in another case involving the two countries.
India had gone to the ICJ in 1971 to challenge the jurisdiction of the International Civil Aviation Organisation (ICAO) to interfere with its sovereign right to ban Pakistani overflights. At that time, Pakistan consisted of two parts, flanking India’s eastern and western borders.
India had argued that the dispute could be resolved without any reference to ICAO and the International Air Services Transit Agreement, since New Delhi had never revived the treaties after 1966 and had terminated them in 1971 after a hijacking incident.
In one of its arguments in favour of the ICAO council’s competence to decide on India’s ‘breach’ of the two treaties, Pakistan had claimed that the ICJ lacked jurisdiction due to the effect of India’s 1960 reservation on disputes with other Commonwealth nations in its acceptance of the court’s compulsory jurisdiction.
“In other words, in that case, Pakistan put forward the exact argument that is being suggested now: that the reservations to the Court’s compulsory jurisdiction somehow apply to and narrow the Court’s jurisdiction under the Vienna Convention on Consular Relations Optional Protocol,” said Kumar.
He noted that in the ICAO council case, the ICJ had dealt with the treaties and the reservations in the declarations as “two separate and wholly independent sources of jurisdiction”. “The ICJ had, therefore, expressly held the reservation in India’s subsequent declaration accepting the Court’s compulsory jurisdiction under the optional clause to be of no relevance in determining the Court’s jurisdiction under the earlier treaties,” asserted Kumar.
Even India’s public statements had made it clear that arguments will be made by its lawyers not by referencing the compulsory jurisdiction, but based on the legal cover provided by the Vienna Convention’s optional protocol.
“It is a consular matter,” MEA spokesperson Gopal Baglay asserted.
Officials privy to India’s arguments state that while Pakistan will tout the 2008 bilateral agreement on consular access, India will not only argue that the pact does not supersede the ICJ’s jurisdiction, but that the document itself cannot be invoked before the UN judicial body.
According to Article 102 of the UN Charter, no treaty that has not been registered with the UN Secretariat by a signatory can be invoked before any “organ of the United Nations”. Sources confirmed that neither India nor Pakistan had, so far, deposited the 2008 agreement with the UN.