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How International Law is keeping Kulbhushan Jadhav alive: Part 1

In a recent ruling of the International Court of Justice at The Hague (“ICJ” / “Court”), India was granted provisional measures in an application instituted against Pakistan. The case, titled India vs. Pakistan (“Jadhav Case”) was brought before the ICJ by India seeking an immediate suspension of a death sentence awarded to an Indian citizen, Mr. Kulbhushan Sudhir Jadhav imprisoned in Pakistan on charges of espionage and terrorism. The case has indeed attracted widespread reactions from different corners of the world. From articles in the media to politicos’ reactions, including updates on social media, people have interpreted and provided their understanding of the ruling. Therefore, my aim in this post is not to opine on the ruling but rather to attempt an impartial account of the proceedings in order to explain the process before the ICJ and how the ICJ indicated the provisional measures in the given set of facts.

The Facts

The ICJ in its ruling on provisional measures recorded that while circumstances around Mr. Jadhav’s arrest remained disputed, there was no dispute regarding the fact that Mr. Jadhav had been in the custody of Pakistani authorities since 3 March 2016. India had become aware of Mr. Jadhav’s arrest sometime in March 2016 itself when the Foreign Secretary of Pakistan informed the Indian High Commission in Pakistan of the arrest. The nationality of Mr. Jadhav was however undisputed since Pakistan itself admitted the fact in its communication to India. Since then, India had been requesting for consular access to Mr. Jadhav through Note Verbales (a diplomatic note drafted in the third person and unsigned) issued to Pakistan but these communications were to no avail.

Through a press statement issued on 14 April 2017 by the ministry of foreign affairs, Pakistan, India learnt that Mr. Jadhav had been sentenced to death on 10 April 2017 by way of a military trial on account of activities of “espionage, sabotage and terrorism”. The ICJ in its judgment recorded that, under Pakistani law, Mr. Jadhav would have a right to appeal against the sentence but it was not known whether Mr. Jadhav had the opportunity to do so.

Upon learning of Mr. Jadhav’s sentence, India protested and continued to seek consular access to Mr. Jadhav and also sought information concerning the proceedings against Mr. Jadhav.

However, since its communications were never responded to by Pakistan, India filed its Request for indication of provisional measures on 8 May 2017. Besides applying for provisional measures, India initiated proceedings against Pakistan in a dispute concerning violations of Article 36 of the Vienna Convention on Consular Relations of 24 April 1963.

Vienna Convention on Consular Relations of 24 April 1963 (“Convention”)

The Convention is an international treaty that defines a framework for consular relations between independent states. India petitioned the ICJ under the Convention since Pakistan acted in ‘brazen’ violation of the Convention, more particularly, Article 36 of the Convention. Article 36 provides that if a national of sending state (India) is arrested, sent for a judicial trial or detained in any other manner, the receiving state (Pakistan) must allow consular officers the right to visit the national who is in prison, custody or detention and to converse and correspond with him and to arrange for his legal representation. Since Pakistan never responded to India’s communications after Mr. Jadhav’s arrest, India deemed the same to be in violation of the Convention and therefore approached the ICJ.

Parties to the Convention marked in green, signatories in yellow, and non-signatories in red. Image by Danlaycock from Wikimedia Commons licensed under Creative Commons Attribution-Share Alike 3.0 Unported license

India petitioned the ICJ under the Optional Protocol concerning the Compulsory Settlement of Disputes, 24 April 1963 (“Optional Protocol”), which provides that any disputes concerning the interpretation of application of the Convention must be compulsorily submitted before the ICJ.

Application for Provisional Measures

Along with the petition under the Optional Protocol, India also submitted a request for the indication of provisional measures, referring to Article 41 of the Statute of the Court and to Articles 73, 74 and 75 of the Rules of Court. In its request, India sought directions against Pakistan to ensure that Mr. Jadhav was not executed during the pendency of India’s application against Pakistan. India also sought directions against Pakistan to ensure that no action is taken that might prejudice the rights of India or Mr. Jadhav with respect to any decision the Court may render on the merits of the case.

Provisional Measures indicated by the Court perhaps gained prominence for the first time after the Court’s judgment in the LaGrand case where the Court clarified that its orders on interim protection are binding. This provoked renewed interest in the characteristics and effects of provisional measures.

It is well settled in the ICJ jurisprudence that for the Court to indicate provisional measures under Article 41 of its statute, a first condition is that the existence of jurisdiction over the dispute must be at least prima facie established. Secondly, even if the existence prima facie of a title of jurisdiction is shown, the only rights that can be protected by provisional measures are the rights asserted in the main proceedings, the rights that the Court thus has prima facie jurisdiction to declare or protect.

International Court of Justice in The Hague, The Netherlands

Provisional measures are designed to avoid an aggravation of the dispute and, in some circumstances, to install measures to protect evidence. The preconditions that need to be satisfied before the Court must firstly be an established case before the Court because provisional measures are indicated in proceedings before the Court. Secondly, a link must be established between the alleged rights the protection of which is the subject of the provisional measures being sought, and the subject of the main claim to the Court. In addition, prima facie jurisdiction over the merits should also be established before the Court.

Each party can request for provisional measures. The basis for the Court’s jurisdiction does not come from the consent of the parties but from Article 41 of the Statute of the Court. Article 41 has the power to indicate any provisional measures that ought to be taken to preserve the respective rights of either party. It is however, unclear to what extent a specific jurisdictional link must exist for the Court to be able to exercise the power laid down in Article 41.

Case law of the Court has provided that the Court does not need to satisfy itself that it has jurisdiction on the merits of the case. However to indicate such measures the Court must be prima facie satisfied that it has jurisdiction.

The prima facie jurisdiction test was elaborated by Sir Hersch Lauterpacht in a separate opinion in Interhandel, which “provided that there is in existence an instrument…which prima facie confers jurisdiction upon the Court and which incorporates no reservations excluding its jurisdiction.”

Article 73 § 2 of the Rules of the Court, provides that provisional measures can be applied at any time, and Article 75 § 1 of the Rules of the Court provides that the Court has the ability to examine “proprio motu”, the circumstances which may lead to indication of provisional measures.

Article 74 of the Rules of the Court specifies a request for the indication of provisional measures by any party shall have priority over all other cases, and it is in the practice of the Court to decide very quickly on provisional measures requested by one of the parties, as the purpose of the provisional measures is to preserve the respective rights of either party, therefore the Court is able to indicate that no prejudice is caused to rights which are the subject of disputes in judicial proceedings.

Having discussed the law relating to the indication of provisional measures, I will give an account of the ICJ’s examination of the law in Mr. Jadhav’s case next week in the second part of this article. Do ensure that you keep watching this space. See you soon!

Click here to read Part 2

 

 Abhileen Chaturvedi is a Senior Associate in the Dispute Resolution practice at ELP, Mumbai. Having graduated from Symbiosis Law School, Pune, he pursued an LLM in International Dispute Settlement (MIDS) from the University of Geneva and the Graduate Institute of International & Development Studies (2015-16) where he focused on commercial and investment arbitration and Public International Law. 

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