Recapitulation of arguments from both the sides
Having fought three major wars and three adversary cases at International Court of Justice (ICJ), the relation between India and Pakistan has always been on an edge. Things could not have been worse that just before a week of main arguments in their fourth adversary case viz., Kulbhushan Jadhav Case, India witnessed a ghastly terror attack in Pulwama, Kashmir wherein 40 of its paramilitary officers were killed. India attributed the attack to Pakistan’s based terror outfit Jaish-e-Mohammed (JeM) and the heat and the distrust was much evident during the entire proceeding. From refusal to shake hands with Pakistan agent by Indian diplomat to personal jibes by Pakistan’s counsel during oral proceedings, the case of The Republic of India v. The Islamic Republic of Pakistan (Kulbhushan Jadhav Case) has brought an unprecedented background to legal proceedings at ICJ. The legal academia looks forward to the case with much interest as it can be one of the landmark decisions concerning the interpretation of the Vienna Convention on the Consular Relations (VCCR).
In this post, we try to summarize the three main arguments levelled from both the sides based on Memorials and Oral Proceedings of the case.
1. CONSTRUCTION OF THE VIENNA CONVENTION ON THE CONSULAR RELATIONS
The first contention before the ICJ raised by India was regarding the construction of the Article 36 of the Vienna Convention on the Consular Relations (hereinafter VCCR) which reads as follows-
“1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) 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;
(b) 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 that 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 post 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 subparagraph;
(c) 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 judgement. 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 action.
- The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.”
India reiterates its position w.r.t. VCCR providing unrestricted right to consular access to the national of the sending state, who has been arrested, or committed to prison, or to custody pending trial, or detained in any other manner. Further, the visitation and communication rights of the sending state through its consular officers’ alongwith the right to arrange the legal representation flows from the 1963 treaty.
The Indian counsel relied on the 2004 judgment of ICJ in the Avena Case to highlight the objective to have unimpeded consular relations to in promote the development of friendly relations among nations, and ensuring protection and assistance for aliens resident in the territories of other States.
India presses for the literal interpretation of the treaty by emphasising on the obligation of good faith arising from Article 31, VCLT which requires ‘ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’ and argues that no restrictive interpretation should be advanced by international tribunals to defeat the purpose of the treaty when there exists no ambiguity as to the interpretation of Article 36, VCCR providing for the duality of rights i.e. right to consular access and assistance rests with the sending state and the individual(s) of the sending state subjected to arrest, custody, detention or trial without delay existing under international law in the LaGrandCase.
Thereafter, India argued that provisions of VCCR should be interpreted giving effect to the developments in the law subsequent to its adoption especially the human rights law. Thus, incorporating the concept of due process, fair trail, adequate legal representation, prohibition against torture and death penalty within the ambit of protection to aliens.
Last, argument under the first contention from India was establishing presence of no exception under Article 36, VCCR, categorically denying charges of ‘espionage’ to facilitate non-operation of the treaty provision. Having accepted that there was indeed a discussion by the drafting committee (VCCR) about espionage as an exception to the consular access, India argues that despite the same, it didn’t materialise into the formal treaty provision. Further, the concerns of states regarding their sovereignty was balanced by making application of the obligation under Article 36 ‘without undue delay’.
India refuted the argument extended by Pakistan w.r.t. isolated examples of state practice of states not granting consular access to the individuals alleged to have committed the offence of espionage and, argues that even if Court finds state practice to be uniform and consistent, it cannot go against the express treaty language.
Similarly, India denies existence of any confusion as to the nationality of Mr. Jadhav and infact, draws the court’s attention to the inconsistencies within the Pakistan’s memorial, reply and oral argument regarding acceptance of Mr. Jadhav’s nationality as an Indian. Therefore, in the case of absence of difference of opinion w.r.t. nationality, India doesn’t find itself bound to present any evidence to prove the freewheeled argument of Pakistan.
Lastly, India highlighted the failure at the part of Pakistan’s counsel to provide any explanation as to how national security would have been affected having given the consular access to Mr. Jadhav before or after extracting the alleged confession/investigation.
Pakistan’s central argument was to deny the applicability of VCCR on the account of India’s failure in establishing the nationality of Mr. Jadhav as an Indian as the burden to prove the same rests on the sending state as held in Avena Case. It relied on academic commentators to establish passport being an official document of a state is an evidence of an individual’s nationality. Thereafter, they argued that passport acquired in contravention of law is invalid under international law following the ratio of The Koszta Case.
Since Commander Jadhav carried a valid passport but under a false name, Pakistan only had obligation to make specific inquiries in timely fashion to verify the nationality and they complied with the same multiple times.
Second, in the alternative, Pakistan argued that in the case court finds that VCCR is applicable in the present case, there exists an exception to the obligation flowing from Article 36(1)(b) on the grounds of espionage. Further, Sir Gerald Fitzmaurice’s observation regarding refusal to grant access to the sending state on the grounds of ‘national security’ was pressed to argue the existence of the customary international law (Denmark’s state practice) to show espionage as an exception to the VCCR’s obligation.
Placing reliance on the text of the preamble i.e. “Affirming that the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention”, Pakistan presented that since VCCR came into existence as a compromise between the states, preamble allowed matters not explicitly governed by the text of the treaty (dual nationality and asylum) to be governed by customary international law. To buttress the same point, the texts of Luke T Lee and & John B Quigley as well as Mr. Biswanath Sen was relied on. Thereafter, series of instances was furthered by Pakistan to establish state practice wherein consular access was refused on the charges of espionage.
Third, in the case courts don’t find there exist customary international law to that effect, Pakistan argues that it hasn’t breached their obligation flowing from Article 36(1)(b) as the provision as to be given the effect within the limits of international law i.e. consular access cannot be granted to undermine the sovereignty of a receiving state. Moreover, Article 5(i) and 5(m) along with Article 36(2), VCCR makes access to justice and consular access subject to the domestic law of the state and thus, the right to consular function isn’t untrammelled. Also, ‘without delay’ w.r.t. consular access doesn’t mean immediate access as held in Avena Case.
2. THE 2008 BILATERAL AGREEMENT ON CONSULAR ACCESS INDIA & PAKISTAN
The issue of Bilateral Agreement 2008 remains the briefest though separately dealt in argument by both the sides. A bilateral agreement on Consular Access was signed in 2008(operative in material terms since 1982 and amended in 2008) between the two countries regarding the treatment which is to be met out to the prisoner’s and detainees’ of either nations by the two state parties.The terms on which agreement was entered included release and repatriation within one month of confirmation of their nationality and the completion of their sentences.
India’s argument has centered around humane treatment to the detainees and not only early release of Jadhav. It was the unique factual circumstance between the two countries due to which it was realized by both the nations that there should be an agreement which should supplement the said convention and special cases like the present should be dealt specifically. Even after expiration of three months India was not been provided consular access to Kulbhushan Jadhav without giving any reasonable explanation. It was argued that firstly, the 2008 Agreement focus primarily on nomads or fisherman and secondly, that such agreement cannot derogate from Article 36.
Pakistan contended that India gave a wrong interpretation to Article 36 vis-à-vis the 2008 Agreement. It contended for literal and contextual interpretation rather than a purposive one.Further, being a bilateral agreement and considering nature of the terms, it can be argued that the object of the agreement conforms with Article 73 of Vienna Convention and there is nothing which directly violates Article 36 of the Vienna Convention.Treating it as a specific case Pakistan has argued that paragraph (vi) of the agreement will be applicable in the present circumstances which will render an exception to Article 36 in cases of political or security grounds. In such cases, either of the countries can consider the matter on merits before providing the consular access. Thus, the immediate consular access is not mandatory by virtue of 2008 agreement.
3. TRACING INDIVIDUAL RIGHTS AND DUE PROCESS IN ARTICLE 36 VCCR
The third issue raised by India contended Article 36, VCCR vis-à-vis Due Process and Good Faith. It tried to highlight how the protection of human rights is part and parcel of obligations ergaomnes. (Reliance placed upon Barcelona Traction Case and Trehan Case; UDHR, ICCPR, ECHR, IACtHR). Such obligation extends to vital human rights of an individual accused of an offence (GA Res. 43/173, 1988; UNGA Res. 40/144, 1985). Article 36 when drafted and till date has no exceptions. (Reliance placed upon AhmadouSadio Diallo case, para 91). The necessary implication of importance and no exception rule to Article 36 is that the State cannot self-certify the compelling reasons of national security.
India further heavily relied uponIACtHR advisory opinion in The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Lawwhich held that:
- The Provision recognizing consular communication serves a dual purpose: that of recognising a State’s right to assist its nationals through the consular officer’s actions and, correspondingly, that of recognizing the co-relative right of the national of the sending State to contact the consular officer to obtain that assistance.
- The genesis of the ICCPR, in so far as it recognizes the right to due process of law “from the inherent dignity of the human person”. Further, the non-observance of Article 36 results in violation of Article 14, ICCPR (Right to equality before the law) and hence, due process of law.
Thus, Article 36 VCCR is closely linked to individual right and as has been recognized in different courts, can be extended as human rights of individuals. One such important human right given to individual in International Law is of equality before law by virtue of Article 14, ICCPR. It is established that jurisprudentially as well as by judicial interpretation that Article 14 is narrowed down codified due process of law.
Conclusively, Pakistan’s failure to provide consular access to Jadhav violates his individual right under Article 14 ICCPR and most importantly, obligation ergaomnes of Pakistan to follow due process of law under Article 36, VCCR.
Lastly, India highlighted the institutional failure of the Military Courts system in Pakistan. It relied upon the European Parliament Resolution (June, 2017) which censured the said Court and UNHRC report (concluding observations on the Initial Report of Pakistan, adopted by the Committee on 25 and 26 July 2017) which detailed on how such courts fail to comply with well established principles of fair trial. India highlighted the stark resemblance in Jadhav’s trial and such already highlighted loopholes by world bodies.
Pakistan refuted the Indian reliance on the various non-governmental reports to highlight failure of its military courts. Pakistan cited a recent report of January 2019 by International Commission of Jurists which refers to the case from the Peshawar High Court, where more than 70 convictions and death sentences rendered by military courts were annulled by the High Court and thus, tried to establish that judicial review as a remedy lies from the judgments of Military Court. Pakistan in strong and un-parliamentary language argued that it is failure on the part of India to not have accessed the mentioned High Court decision that reviewed the Military Court decisions.
Pakistan further contended that IACHR decisions were not of any help to India because, firstly, they are simply recommendations and secondly, the Commission in those decisions ultimately called for a new trial and not acquittal. The decision of ICJ cannot be on conviction or sentences of individuals but rather limited to violation of treaty obligation, if any, by the state parties. Such being the case and as has been held in Avena Case, the review and reconsideration of trial in violation of Article 36 VCCR must be left on Pakistan and not India. Complete annulment is not the sole and necessary remedy available and in extension, as India seeks, return of Jadhav cannot be provided.
Finally, Pakistan attempted to rebut Indian argument which sought to establish therelation between Article 36 VCCR and Article 14 ICCPR as “cross-pollination” in “jurisprudential envelope” which will result in “judicial activism”. Though Pakistan didn’t explain as to why such relation shouldn’t be accepted but merely relied upon La Grandcase where such relation was held to be non-conclusive considering the text, object and purpose of the Convention or travaux préparatoires.
In conclusion, Pakistan arguedthat effective remedy lies against Military Tribunal judgment and ICJ cannot rule over conviction/acquittal of the individual. Further, the argument of India about human rights and VCCR doesn’t hold water as it is merely interpretation in widest sense possible.
In international law there isn’t any hierarchy between its sources, both treaty and customary international law enjoy same position and status. The dispute as to the interpretation and application of the VCCR seems to be yet another occasion for ICJ to adjudge on the conflict between the two primary sources and, whether there has been development of a customary international law which recognizes espionage as an exception to the right of consular access. The question as to whether Article 36(1)(b) although being lexspecialisis unambiguous in its text, if yes, will it leave room for customary law to be used for its interpretation via Article 31(1)(c) VCLT? Further, VCCR being a treaty incorporated, in other words, had codified the existing customary law in relation to consular functions and relations or through its preambular reliance on customary law allowed interpretation of treaty with growing state practice? Moreover, the conflict between multilateral and bilateral treaty and which one prevails over other is placed before the Court to adjudicate. While there remain many questions to be answered, one answer seems to be clear is that even if Courts decides against Pakistan, holding it in violation of the treaty obligation, it cannot grant the remedy sought by India. Release and return of Jadhav isn’t compatible with Court’s precedent itself. The Court can at maximum ask Pakistan to retry Jadhav in its civilian court after granting India the consular access. However, will Court end up in judicial creativity and consequently, activism is something to look forward to.
Aakash Chandran, LL.M Candidate (International Law) at South Asian University
Pranav Tanwar, Vth Year Student at Faculty of Law, Jamia Millia Islamia
Sourabh Pandey, Vth Year Student at Faculty of Law, Jamia Millia Islamia
Aakash Chandran, Pranav Tanwar, Saurabh Pandey,”The Republic of India v. The Islamic Republic of Pakistan: Jadhav Case, IJLIA Blog(2019) <http://ijlia.in/the-republic-of-india-v-the-islamic-republic-of-pakistan-jadhav-case/>