The ICJ impasse


Hard knocks and hot water


At India’s request, the International Court of Justice has put itself into hot water while assuming prima facie jurisdiction on an alleged violation of the Vienna Convention on Consular Relations of 1963 (VCCR) in the Jadhav case. The provisional measure – to prevent the execution of an Indian National (Mr Kulbhushan Sudhir Jadhav) – has created a heated debate about both the legality and the possibility of implementing the ICJ’s decision in a case with significant political, legal, and security dimensions.


The ICJ’s order struggles to justify the provisional measure on the basis of an individual’s fundamental rights and international law. The Court seems to ignore long-standing concepts pertaining to the ‘sovereignty’ and ‘security’ of States. In its final analysis, the Court would have to interpret, weigh, and reconcile these concepts in light of Article 36 of the VCCR. Determination of these two concepts around the jurisdiction of the Court will be central to the final decision.


On the issue of jurisdiction, India stresses Article 1 of the Vienna Convention’s Optional Protocol, which states that the ICJ has jurisdiction over “disputes arising out of the interpretation and application of the (Vienna) Convention”; the case, in turn, touches on Article 36 of the VCCR, which addresses consular contact with nationals of a sending State. The relevant paragraph provides that “if (such a national) 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 that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. … The said authorities shall inform the person concerned without delay of his rights under this subparagraph”. India feels that Art. 36 of the Vienna Convention should be interpreted to ensure consular access to Jadhav (ensuring the protection of basic human rights i.e., right to a fair trial, right to communication, etc.).


On the other hand, Pakistan claims that the ICJ lacks jurisdiction to interpret the VCCR as both the States entered into an agreement in 2008 regarding the interpretation and application of the VCCR (allowing the parties to examine every case of arrest, detention, or sentence made on political or security grounds on its merits). In other words, Pakistan feels that the ICJ does not have any jurisdiction to interpret or apply the Vienna Convention in the presence of the 2008 agreement, as well as declaration filed in 2011 by Pakistan that issues of national security would not fall in the domain of the ICJ.


As noted above, rights of an individual and rights of the state prominently figured in the findings of two honourable judges of the ICJ even at the stage of announcing provisional measures in the case. Judge Cancado Trindade, while examining the rights of States and individuals as subjects of international law, said that “violations of the rights of the individuals under Article 36 may entail a violation of the rights of the sending State’. He further referred to “the awakening of the universal juridical conscience” vis-à-vis the rights of individuals such as Jadhav. Judge Bhandari went on to state that “this case gives rise to questions pertaining to the basic violations of human rights through the denial of consular access during the pendency of court proceedings”.


Thus, in view of the above, India is likely to build arguments on the logic of human rights that the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr Jadhav, noting that the alleged failure to allow communication and provide access to him was a violation of established human rights norms as envisaged in Article 36 of the VCCR.


Pakistan, on the other hand, may maintain that collective rights of the State i.e., sovereignty, security, and the defence of the State stands prior to the provision of human rights, particularly to those who confess their involvement in espionage or terrorism. In domestic affairs, it may be argued, certain fundamental rights may be suspended in a state of emergency to maintain law and order in the country. Even outside of any declared emergency, it may be that spies and terrorists are not treated as ordinary citizens insofar as they are involved in anti-State operations. Of course, Mr Jadhav is not a citizen of Pakistan. Still, Pakistan may stress that, in all states, extraordinary situations related to menace of terrorism as a global threat to the mankind require deviation from the standards proposed for a normal situation.