ICJ’s Ruling on Kulbhushan Jadhav

Acting on an Indian petition, the International Court of Justice (ICJ) at the Hague wrote to the Pakistan government to, effectively, put on hold the execution of Kulbhushan Jadhav, the retired Indian Navy officer who was convicted of espionage charges by a Pakistan military court.

The Judgment

What the court said?

• Pakistan shall take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in the proceedings.

On whether the Court had jurisdiction to hear the case

• The Court recalled that India had argued that Article I of the Optional Protocol to the Vienna Convention provides that the Court has jurisdiction over “[d]isputes arising out of the interpretation or application of the [Vienna] Convention”.
• It noted that India and Pakistan differed on the question of India’s consular assistance to Kulbhushan Jadhav under the Vienna Convention.
• It noted that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to Jadhav’s arrest and detention, as well as the alleged failure to allow communication and provide access to him, appeared to be capable of falling within the scope of the Convention.
• This, the court found, was sufficient to establish that it had prima facie jurisdiction under Article I of the Optional Protocol, and that the existence of a 2008 bilateral agreement between India and Pakistan on consular relations did not change this conclusion.

Key Issues Analysed

India’s Conventional Approach on Bilateral Issues

• The approach to the International Court of Justice (ICJ) on Kulbhushan Jadhav goes against conventional thinking in India to date of keeping disputes with Pakistan out of international fora.
• This was the lesson learnt from the fate of the application to the United Nations Security Council (UNSC) in January 1948 on the Pakistani invasion of J&K. Since then, the Government of India’s approach has been to try and limit exposure of bilateral issues to outside influences, legal or otherwise.
• The Simla Agreement further reinforced this point of view. In the three decades since Simla for instance, India preferred to deal with contestations over the Salal hydroelectric project and the Tulbul navigation project bilaterally with Pakistan.
• This was often to its cost but was still the preferred option rather than go in for the dispute resolution mechanisms provided for in the Indus Waters Treaty (IWT) itself.
• India’s only reference to the ICJ was a defensive one and to prevent Pakistan from raising the overflights issue in 1971 in another multilateral body- the International Civil Aviation Organization.

Changes in Stance

• From 2005 the approach to the IWT changed with India agreeing for the first time to approach, jointly with Pakistan, the World Bank to appoint a ‘neutral expert’. Thereafter the use of the dispute resolution mechanisms of the IWT has become more frequent.
• The current move however represents a more significant change since it is not an engineering dispute of the kind covered under the IWT.
• It is seeking the ICJ’s intervention in a consular matter and human rights matter, more specifically the death sentence awarded following a court martial, and for violation of procedures and provisions of the Vienna Convention on Consular Relations (VCCR).

Why did India decide to take the bilateral matter to an International Forum?

• India took the Jadhav’s matter to the court as both India and Pakistan are signatories to the optional protocol of the Vienna Convention on Consular relations. The protocol says any dispute arising out of the interpretation or application of VCCR shall lie within ICJ’s jurisdiction.
• India moved the ICJ because it feared Pakistan could execute Jadhav without allowing him the legal remedies available to him in that country.

About ICJ

• The ICJ is the successor of the Permanent Court of International Justice (PCIJ) – the first world court. During World War II, the PCIJ and the League of Nations became so irrelevant that they were not even used.
• Like the UN, the International Court of Justice was established by the UN charter, signed in 1945 at San Frensisco, United States.
• Based in The Hague, Netherlands, the ICJ began its work from 1946. The court has 15 judges of different nationalists.

It has a dual role

• It is supposed to settle legal disputes between states in accordance with international law.
• Secondly, it also gives advisory opinions on legal matters referred to it.

Can Individuals take their case to the ICJ?

• No, only UN member states are eligible to appear before the court in contentious cases.
• The court has no jurisdiction to deal with applications from individuals, NGOs, corporations or any other private entity.
• The state can however take up case of its citizens against another state.

How is it different from the International Criminal Court (ICC) and the ad hoc international criminal tribunals?

• The ICJ is not a criminal court and hence it has no jurisdiction to try individuals accused of war crimes or crimes against humanity.
• The need of an international tribunal to judge political leaders was first discussed during the 1919 Paris Peace Conference.
• After the World War II, the world witnessed the Nuremberg and Tokyo tribunals, which were set up to investigate Japanese and Nazi war crimes. In 1948, UN said the General Assembly recognizes the need for an international court to deal with such atrocities.
• There could never be any consensus because of the Cold War and hence similar tribunals were set up for Yugoslavia and Rwanda, while a special court was established to investigate war crimes in Sierra Leone. These ad hoc tribunals have limited jurisdiction specific to the country for which they are set up.
• The ICC on the other hand is a permanent international body with global jurisdiction. The ICC can prosecute individuals accused of genocide, war crimes and crimes against humanity.

Are ICJ’s decisions bindings?

• According to Article 94 of the UN charter, each member undertakes to comply with the decision of the court in any case to which it is a party.
• The judgments are final and without appeal. If a state fails to agree then the other party can take the case to the Security Council. It means that a dispute can remain unresolved forever if one of the five permanent members veto against any further action.

Vienna Convention on Consular Relations

Article 36: Communication and contact with nationals of the sending state:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending state:
   1. Consular officers shall be free to communicate with nationals of the sending state and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending state;
   2. If he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of the State is arrested or committed to prison or to custody pending trial or is, detained in any other manner. Any communication addressed to the consular posts by the person arrested, in prison, custody or detention, shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
   3. Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such nation.

Article 1: of Optional Protocol to Vienna Convention

Disputes arising out of the interpretation or application of the (Vienna) 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.