After Winning Provisional Battle in Jadhav's Case at the ICJ, India Must Now Settle in for Long Haul

At this stage, it would probably be in India's interest to stretch the ICJ case as long as possible, as this would at least ensure that Jadhav is not executed by Pakistan pending a final judgment.

Members of the Indian delegation, from left to right, Asha Antony, Dr Kajal Bhatt and Dr Deepak Mittal, listen as ICJ president Judge Ronny Abraham pronounces the court’s verdict on India’s application for provisional measures in the Kulbhushan Jadhav case. Credit: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ

The International Court of Justice on Thursday ordered Pakistan to take all measures at its disposal for ensuring that Kulbushan Jadhav – an Indian national convicted of espionage and sentenced with the death penalty in Pakistan – is not executed before the court delivers its final judgment in the case. The ICJ also asked Pakistan to inform it of all the measures that are taken for the implementation of its order.

The decision of the ICJ was unanimous. In indicating “provisional measures” preventing Jadhav’s execution, the court ruled in favour of India’s request for interim relief and rejected Pakistan’s arguments that provisional measures are unnecessary in the present case. It also made clear that the order was “binding” on Pakistan under international law. The promptness with which the ICJ has acted in this case – indicating provisional measures within three days of the hearings – is to be appreciated.

The court’s decision is not surprising and goes along expected lines. Pakistan raised several arguments against interim relief by the court in the present case. First, it argued that there was no urgency here as the date for Jadhav’s execution has not been fixed and he has access to a time-bound process to seek clemency under Pakistan’s domestic law. In its order, the ICJ observed that the mere fact that Jadhav is under a death sentence and may therefore be executed shows that there is a risk of “irreparable prejudice” to India’s rights. Recalling Pakistan’s statement that Jadhav’s execution would probably not take place before August 2017, the ICJ nonetheless saw a risk that his execution could take place at any time thereafter – before a final decision is reached in this case. Noting that Pakistan did not provide an assurance that Jadhav will not be executed pending a final decision, the ICJ decided that the situation is urgent enough to indicate interim relief.

The ICJ also dismissed Pakistan’s jurisdictional objections, finding that it has prima facie jurisdiction to indicate provisional measures.

As the basis for such prima facie jurisdiction, the court referred to Article 1 of the Optional Protocol to the Vienna Convention on Consular Relations (VCCR), which requires that “[d]isputes arising out of the interpretation or application” of the VCCR be decided by the ICJ. Given that the acts alleged by India, i.e., Pakistan’s failure to provide consular access, are capable of falling within the scope of the VCCR, the court was satisfied of prima facie jurisdiction under the VCCR Optional Protocol.

Importantly, it did not see the 2008 bilateral agreement on consular access concluded by the two countries, and invoked by Pakistan, as effecting its prima facie jurisdiction. The ICJ agreed that the effect of the 2008 bilateral agreement on the VCCR is an issue that requires, possibly later in the proceedings, an examination of the relationship of the agreement with the VCCR, in light of Article 73(2) of the convention. It is important to remember that a prima facie showing of jurisdiction is sufficient at the provisional measures stage and the court can come back to a fuller examination of its jurisdiction at a later stage.

Noting that the rights alleged by India, namely, the rights of consular notification and access, are recognised in Article 36(1) of the VCCR, the court considered such rights to be “plausible”. Insofar as the provisional measures requested by India are aimed at ensuring that the rights contained in Article 36(1) are preserved, the court found that a “link” exists between the rights claimed by India and the provisional measures being sought, and therefore granted India’s request.

What happens next

While the ICJ may have sided with India in staying Jadhav’s execution at this stage, this is only the beginning of a long journey for India to convince the court of its case. Substantively, India’s ultimate request is that the ICJ orders a reversal of Jadhav’s conviction and his subsequent release by Pakistan. It is, however, far from obvious whether the court can actually grant the relief requested by India. In past cases concerning denial of consular access, the court has usually ordered the respondent country to undertake a “review and reconsideration” of the sentence and conviction by a means of its choosing, e.g., through its domestic judicial process, taking into account the violation of the rights under the VCCR.

All of the previous cases involved the United States as the respondent state and the court’s remedy may have been influenced by the possibility of such review and reconsideration under the US’s domestic legal system. While the operation of Pakistan’s domestic legal system may be a relevant factor for it to consider, were the court to award similar relief in this case, Pakistan could simply undertake such review and reconsideration under its domestic legal system. There is obviously no guarantee that such a review by Pakistan would reverse Jadhav’s conviction and lead to his release, as desired by India.

At this stage, therefore, it would probably be in India’s interest to stretch the ICJ case as long as possible, as this would at least ensure that, in accordance with the May 18 order, Jadhav is not executed by Pakistan pending a final judgment.

Procedurally, the president of the court will now meet with the representatives of the countries to solicit their views on the timeline for the proceedings, following which the court will fix, through an order, the time-limits for the filing of written submissions on the substantive aspects of the case. Pakistan may choose to object to the jurisdiction of the case. In such an event, the court may address Pakistan’s preliminary objections to its jurisdiction, before moving on to the merits of India’s case. The ICJ will then schedule hearings in the case, with the possibility of separate hearings for the jurisdictional and merits phase. Following the hearings, the ICJ judges will hold internal deliberations, before they issues their judgment.

Finally, as analysis of the court’s decision pours in from all corners, it is important to spare a thought for Jadhav, who, languishing in a jail somewhere in Pakistan, may perhaps not even be aware of the proceedings at the ICJ and the court’s order. This is because all access and communication with Jadhav is currently controlled by Pakistan. Indeed, this is one of the reasons why the VCCR guarantees nationals subject to criminal proceedings in foreign countries the right to have access to consular officials from their home countries in the first place – and the reason for India’s case at the ICJ.

Shashank Kumar is a Geneva-based public international lawyer. He previously served as a law-clerk at the ICJ and legal adviser at the Iran-US Claims Tribunal. The views expressed in this article are personal.

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