Kulbhushan Jadhav hearing at the ICJ: A fundamental reason why India will lose this case

Monday's hearing before the International Court of Justice at the Hague may appear to be a victory for India in terms of political points scored back home, but there were some key legal issues that Pakistan did point out that require our consideration.

The legal issues stem from the fact that there was a 2008 bilateral agreement on consular access. An agreement that India sought not to rely on at the Hague on Monday and merely restricted itself to the Vienna Convention on Consular Relations. In doing so, India made the point that the agreement had not been registered with the United Nations and therefore, India would have to restrict the argument to the Vienna Convention on Consular Relations alone.

This perhaps may be the first instance of a State disavowing a bilateral treaty, in accordance with which it has been acting, in the midst of a court proceeding. The ICJ is not an ordinary court in the strictest sense, the ICJ is a diplomatic body and statements made before the ICJ have consequences. Which is why States are represented by agents who instruct counsel to argue the case for them, rather than just counsel alone. Statements made by an agent or an agent via their counsel bind the State in the international fora.

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By refusing to acknowledge the 2008 Agreement, India could have well just terminated that agreement. The agreement is critical for the fate of many Indian fishermen who end up straying into Pakistani waters year after year as it called for the exchange of prisoner lists and consular access.

Harish Salve at the ICJ. Image credit: webtv.un.org

Coming to the point of consular access, one of the key arguments that Pakistan raised before the court was that India had failed to prove the nationality of Kulbhushan Jadhav. While to many this may seem like a technicality, it is not. In the case of Mexico versus United States (The case concerning Avena and other Mexican nationals; more commonly the Avena Case), the ICJ was quite clear on the point that in order for a State to exercise diplomatic protection, it must prove that the person it is trying to protect is a national of that State. Pakistan raised the dispute in court on Monday, as India was not dealing with the Indian passport with which Jadhav was found.

While there is abundant evidence that may exist to prove that Jadhav is an Indian national, this evidence was not put before the court. Instead India relied solely on Pakistan's assertion that he was an Indian spy. If we are disputing the Pakistani narrative of things, it becomes incumbent upon India to prove that the Pakistani narrative is false. Towards this, among the many annexes in India's pleadings before the ICJ, annexing Jadhav's birth certificate or perhaps a copy of his original passport would have gone a long way in countering this objection by Pakistan.

Put simply, not all spies are of the same nationality as the State for which they are spying. Sometimes foreign spies can be engaged as well (think James bond and how he always had someone local working for British Intelligence if you need to understand it simply). We still have a burden to prove he is a national of India.

The other is the ground of jurisdiction and reliefs. India has approached the ICJ to ask Pakistan to release Jadhav on the grounds that his rights under the Vienna Convention had been violated or in the alternative, to declare that the military court trial was unfair and not carried out in accordance with International Law, and order a new trial ie relief by way of restitution in integrum, which is legalese for returning to the original condition.

This becomes very problematic in light of the jurisprudence of the ICJ and in particular the fact that the ICJ is a body for the pacific settlement of disputes between States and not individuals. The Vienna Convention does not provide for the right to fair trial. Indeed the right to fair trial even though recognised under International Law is not one that is justiciable before the ICJ in a case where the Vienna Convention has been breached. Let us take an example. Tomorrow, if an Indian were to be put through the kangaroo courts of North Korea and sentenced to death, if India had consular access to that Indian, there is precious little India could do to have that trial set aside, as North Korea has the right under International Law to run its affairs in accordance with its sovereign rights.

Now if the final relief is one that the court cannot grant, then interim relief is something the court may be unlikely to grant in this case. In the La Grande Case (Germany versus United States), the court held that as a way of restitution, a full new trial need not be provided and in fact, even if review and reconsideration taking into account that consular access was not provided would be sufficient relief for restitution in integrum.

In the Mexico versus United States case the Court at Paragraph 122 held:

"The Court reaffirms, that the case before it concerns Article 36 of the Vienna Convention and not the correctness as such of any conviction or sentencing. The question of whether the violations of Article 36, paragraph1, are to be regarded as having, in the causal sequence of events, ultimately led to convictions and severe penalties is an integral part of criminal proceedings before the courts of the United States and is for them to determine in the process of review and reconsideration. In so doing, il is for the courts of the United States to examine the facts, and in particular the prejudice and its causes, taking account of the violation of the rights set forth in the Convention."

Further, in the same case, Mexico had contended that failure to grant consular access would lead to a violation of due process making the trial unfair. This is the exact argument India is going with before the court. The court however was very clear on this point and at Paragraph 124 said:

"Whether or not the Vienna Convention rights are human rights is not a matter that this Court need decide. The Court would, however, observe that neither the text nor the object and purpose of the Convention, nor any indication in the travaux preparatories, support the conclusion that Mexico draws from its contention in that regard."

By saying this, the court refused to review if the trial had been fair or not and in terms of the relief held that review and reconsideration along with clemency may be valid means of remedy rather than setting aside the trial itself. (See Para 141,142 and 143) saying on the point of a clemency procedure:

"The Court considers nevertheless that appropriate clemency procedures call supplement judicial review and reconsideration, in particular where the judicial system has failed to take due account of the violation of the rights set forth in the Vienna Convention, as has occurred in the case of the three Mexican nationals referred to in paragraph 114 above" (Para 143)

It would be wise at this stage to point out that India, in none of its pleadings before the court, has asked for consular access as a prayer, including in its main pleas before the court. None of them include a relief by way of a direction that Pakistan grant consular access to the Indian national concerned: Which is the relief to address India's primary and continuing grievance under the Vienna Convention. Consular access would help Jadhav find lawyers to fight his appeal and also help him liaison with his family back home. The primary aim of the Vienna Convention is to facilitate those rights. However, in the reliefs sought before the ICJ, India has not asked for consular access to be granted either as a final or as an interim relief.

Last but not least, India failed miserably on Monday to establish urgency before the court. The chances of its interim application being allowed largely evaporated when Pakistan agreed to consent to an early hearing for quick disposal of the matter. Further, in all previous cases there was a lot more urgency before a State went to the court. In the first case of this kind — Paraguay versus the United States, Paraguay approached the court on 3 April, 1998 when the execution date for its national was set for 14 April, 1998. There were around two weeks to go.

File image of former Indian naval officer Kulbhushan Jadhav. PTI

In La Grande (Germany versus United States), the execution was scheduled for the following day and in the Mexican case, there was around a month. If Pakistan is able to establish that Jadhav won't hang within the time that the case could be heard and disposed off by the ICJ then there is no chance of India getting an interim measure. Pakistan was able to do so by pointing out that there was still time before the execution and therefore the court need not intervene.

Let us now revisit the key fact that the ICJ is a diplomatic body and not a court per se. It exists to have States settle disputes peacefully rather than go to war. The court will be reluctant to interfere in the internal workings of a State unless it has to. This is why India also hardly ever goes to the ICJ to litigate. Quite likely, this is the first time India has applied as an applicant to the court to seek substantive relief. The last time India was before the ICJ as an applicant in 1971 was when it challenged a decision by the International Civil Aviation Organisation on the grounds that it did not have jurisdiction. It has been consistent Indian policy to have affairs settled bilaterally rather than invoking the jurisdiction of the ICJ.

Which makes this author wonder why India has suddenly decided to do this. The Vienna Convention is a very strict convention. It requires that the person arrested be informed of their right to consular access and also requires that this access be supplied at the earliest. Tomorrow, if a terrorist is picked up in Jammu and Kashmir, and the authorities fail to inform him of his consular rights, Pakistan could suddenly make an application against us before the ICJ. Bilateral relations work better for States that share long borders and keep facing the problem of nationals slipping in from one territory to another. To invoke a multilateral framework and at the same time disavow a bilateral one is something that India has seldom done.

After Monday's hearing, one really wonders if the advice of the legal mandarins in the Ministry of External Affairs is being heeded or if India is purely moving this case as a result of a political decision.

REF: India's Application

REF: Mexico's Pleadings

REF: Mexico Judgment