In Part 1 of this piece, I discussed the facts of the Jadhav Case, the Vienna Convention on Consular Relations (“Convention”), and the law relating to Provisional Measures. Let’s now look at how the International Court of Justice (“ICJ” / “Court”) analysed this case and decided that the procedural pre-conditions were met in order to grant India’s application for the Provisional Measure to stay Kulbhushan Jadhav’s execution by Pakistan.
- Existence of a Dispute – The Court noted that India and Pakistan have indeed differed, up until
the date of filing the proceedings on the question of India’s consular assistance to Mr. Jadhav under the Convention. While India through its Notes Verbales requested consular access, Pakistan responded that it would consider the request, “in the light of India’s response to [its] request for assistance” in the investigation process concerning Mr. Jadhav in Pakistan. The fact that the there was a clear difference of opinion between the two parties on the obligations under the Convention, the Court held these elements are sufficient at this stage to establish prima facie that, on the date the Application, a dispute existed between the parties on the issue of consular assistance under the Convention.
- Prima Facie Jurisdiction – As the ICJ stated in Ukraine v. Russian Federation, “the Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case.” In other words, the Court can grant Provisional Measures as long as the Applicant can prima facie show it has jurisdiction; the Court need not delve deeply into the merits of the case to convince itself that it has jurisdiction. In Mr. Jadhav’s case, India had sought to invoke the jurisdiction of the Court under the Optional Protocol concerning the Compulsory Settlement of Disputes, 24 April 1963 (“Optional Protocol”) accompanying the Convention and thus, the Court had to establish prima facie jurisdiction before indicating provisional measures under the said Convention.The Court, while relying upon past ICJ jurisprudence, observed that when the jurisdiction of the Court was founded on particular “treaties and conventions in force” pursuant to Article 36, paragraph 1, “it becomes irrelevant to consider the objections to other possible bases of jurisdiction”, as stated in the case of Nicaragua v. Colombia. The Court, having established that there existed a dispute between the parties, noted that the acts alleged by India were capable of falling within the scope of Article 36, of the Convention, which, inter alia, guarantees the right of the sending State to communicate with and have access to its nationals in the custody of the receiving State. The Court, having thus concluded that acts of Pakistan were in violation of the Convention, considered that it had prima facie jurisdiction under Article I of the Optional Protocol.
- Plausibility of the Provisional Measures and the Causal Link – The Court observed that in order to indicate provisional measures, it must first see whether the measures asked for were plausible and a link existed between the rights whose protection is sought and the provisional measures being requested.The Court observed that all states (parties to the Convention) had a right to provide consular assistance to their nationals who were in prison, custody or detention in another state party. The Court considered that the provisional measures sought by India were aimed at preserving the rights of India and Mr. Jadhav under Article 36 of the Convention. Thus a link did exist between the rights claimed by India and the provisional measures being sought.The Court noted that the rights to consular notification and access between a State and its nationals who may be undergoing a trial or is imposed with a sentence, along with the obligation of the detaining State to inform without delay the person concerned of his rights with regard to consular assistance have been recognised in Article 36 of the Convention. The Court then held that Pakistan’s arguments that Article 36 is not applicable in instances of espionage or terrorism cannot be accepted on a mere face value since no legal analysis on the issues had been advanced by the Parties.The Court further held that at a preliminary stage of indicating provisional measures, it may not “be called upon to determine definitively whether the rights which India wishes to see protected exist; it need only decide whether these rights are plausible”.The Court thus in light of the fact that an Indian national was arrested and sentenced to death in Pakistan without being offered consular assistance despite numerous requests and Pakistan not having denied such assertions, held that the instance was a fit case where rights invoked by India under the Convention were plausible.
- Irreparable prejudice and urgency – The power of the Court to indicate provisional measures is exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights in dispute before the Court gives its final decision (as stated in Ukraine v. Russian Federation). The Court observed that with respect to the criteria of irreparable prejudice and urgency, the fact that Mr. Jadhav may petition Pakistani authorities for clemency, and that the date of his execution had not been fixed, were circumstances that should not preclude the Court from indicating provisional measures.The Court held that given the fact that Pakistani authorities may execute the death sentence during the pendency of India’s application under the Convention and which may eventually render the Court’s decision ineffective, the Court found that the present instance was a case where irreparable prejudice would be caused if provisional measures were not indicated on an urgent basis.
Decision of the Court
The Court finally concluded that the facts and circumstances surrounding the case warranted the indicating of provisional measures. The Court thus directed Pakistan not to execute Mr. Jadhav pending the final decision of the Court as the same was necessary to protect the rights claimed by India.
The Court reaffirmed its position stated in the LaGrand Case, that its “orders on provisional measures under Article 41 [of the Statute] have binding effect” and thus create international legal obligations for any party to whom the provisional measures are addressed.
It is beyond dispute that the purpose of provisional measures is both to enable the Court to preserve the value of its judicial functions and to preserve the respective rights of the parties, pending the decision of the Court. The jurisprudence in this particular facet is also dynamic in so far as the Court has had to introduce the ‘Plausibility’ criteria (Belgium v. Senegal) and has had to distinctly clarify that provisional measures are binding (LaGrand Case), a position it reasserted in the Jadhav case as well.
One cannot over look the fact that Pakistan’s own actions made it difficult for the Court not to act in the present case. Indeed, the situation may have been different had Pakistan granted consular assistance to India to the extent that there may not have been a Jadhav Case or the application for provisional measures.
Much has also been mentioned in press reports on how the present judgment may set a bad precedent for India who may be subjected to similar proceedings by Pakistan. If people assume that Pakistan will start approaching the ICJ for its citizens who have been charged with terrorist activities in India, it may indeed lead to a geopolitical perception that Pakistan wishes to protect its citizens involved in deviant activities, which may be counterproductive to Pakistan’s image as a peaceful nation. Further, ICJ is not bound by its decisions and every case has to be decided on its own merits.
It must be clarified that in the present instance India in its communications to Pakistan wanted consular access to Mr. Jadhav and sought information on the trial, which was denied. The ICJ has also not awarded an absolute embargo on future trial and has indicated provisional measures only to conduct an in-depth analysis on whether Pakistan indeed violated international treaties and to further scrutinise India’s application before it. The judgment of 18 May 2017 only conveys that the Court has observed on a prima facie basis that it has jurisdiction to decide India’s application under the Convention and has thus indicated provisional measures so that in the future if a decision is granted in India’s favour, the decision must not prove to be otherwise worthless.
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.