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The ICJ's Jadhav Judgment and Its Implications for Pakistan and India under International Law

Published online by Cambridge University Press:  03 November 2020

Abhishek TRIVEDI
Abhishek TRIVEDI*
Affiliation:
Faculty of Legal Studies, South Asian University, New Delhi, India
*
[email protected]
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Abstract

The International Court of Justice [ICJ] delivered its Judgment on Jadhav (India v. Pakistan) in 2019, finding Pakistan in breach of its obligations under Article 36 of the Vienna Convention on Consular Relations, 1963. Thus, Pakistan is under a continuing obligation to provide, through the means of its own choosing, effective review and reconsideration [ERR] of Jadhav's conviction and sentence. This paper comments on the ICJ's Jadhav Judgment and its implications for Pakistan and India. It also evaluates the legal option if India is not satisfied with Pakistan's implementation of the ERR process effectively. In this situation, India can approach the ICJ again. This paper finds that the possibilities of India's request to be admissible before the ICJ under Article 60 of its Statute are relatively higher than the possibilities of its successful adjudication on the merits.

Type
Notes and Comments
Information
Asian Journal of International Law , Volume 11 , Issue 1 , January 2021 , pp. 13 - 23
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press

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Footnotes

*

PhD research scholar. This paper constitutes part of my presentation delivered at the international conference “South Asia in the Era of International Courts and Tribunals”, held on 28–29 February 2019 at the Faculty of Legal Studies, South Asian University in New Delhi, India.

References

1. Memorial of the Republic of India, Jadhav (India v. Pakistan), [2017] I.C.J. Pleadings at 1–5 [Memorial of India].

2. Ibid., at 19–25.

3. Counter-Memorial of the Islamic Republic of Pakistan, Jadhav (India v. Pakistan), [2017] I.C.J. Pleadings at 19–20, para. 64.

4. Ibid., at 79–94.

5. Vienna Convention on Consular Relations, 24 April 1963, 596 U.N.T.S. 261, (entered into force 19 March 1967), preamble, art. 5, and chapeau of art. 36 [VCCR]; see also United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Order of 15 December 1979, [1979] I.C.J. Rep. 6 at 19–20, para. 40; QUIGLEY, John, ACEVES, William J., and SHANK, Adele, The Law of Consular Access: A Documentary Guide (New York: Routledge, 2011) at 3–15Google Scholar; LEE, Luke T. and QUIGLEY, John, Consular Law and Practice, 3rd ed. (New York: Oxford University Press, 2008)Google Scholar.

6. VCCR, supra note 5, art. 36(1)(b).

7. Ibid., arts. 36(1)(a), (c).

8. Jadhav Case (India v. Pakistan), Judgment, 17 July 2019, [2019] I.C.J. G.L. No. 168 at paras. 68–9, 73, 75, 86–7, 89, 92, 98, 104, 113, 115, 118–19, 122, 124 [Jadhav case].

9. Ibid., at para. 138.

10. Ibid., at para. 147.

11. “Pakistan Provides Consular Access to India for Commander Jadhav, Islamabad”, Ministry of Foreign Affairs, Government of Pakistan (2 September 2019), online: MOFA <http://mofa.gov.pk/pakistan-provides-consular-access-to-india-for-commander-jadhav/> [MOFA statement].

12. “Official Spokesperson's Response to Queries from the Media on Consular Access to Shri Jadhav”, Ministry of External Affairs, Government of India (2 September 2019), online: MEA <https://mea.gov.in/response-to-queries.htm?dtl/31784/official+spokespersons+response+to+queries+from+the+media+on+consular+access+to+shri+jadhav> [MEA statement].

13. Jadhav case, supra note 8 at paras. 120, 134.

14. Ibid., at paras. 138–9; see also LaGrand (Germany v. United States of America), Judgment, 27 June 2001, [2001] I.C.J. Rep. 466 at 514 at paras. 125–6; Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, 31 March 2004, [2004] I.C.J. Rep. 12 at 65–6, para. 140 [Avena case].

15. Jadhav case, supra note 8 at para. 145.

16. Ibid., at para. 149(6).

17. Ibid., at para. 145.

18. Avena case, supra note 14 at 31–2, para. 30.

19. Ibid., at 65, para. 139.

20. Ibid.

21. Jadhav case, supra note 8 at para. 139.

22. Ibid., at para. 145

23. Ibid., at para. 146; see also Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, 19 January 2009, [2009] I.C.J. Rep. 3 at 12, 17, paras. 27, 44 [Request for Interpretation 2009].

24. MOFA statement, supra note 11.

25. Ibid.

26. Ibid.

27. MEA statement, supra note 12.

28. “India Accepts Pakistan's Offer of Consular Access to Kulbhushan Jadhav Today” The Wire (2 September 2019), online: The Wire <https://thewire.in/diplomacy/pakistan-announces-consular-access-to-kulbhushan-jadhav-on-september-2>.

29. “Jadhav: India Rejects Pakistan's Friday Offer, Asks For ‘Unimpeded’ Consular Access” The Wire (2 August 2019), online: The Wire <https://thewire.in/south-asia/kulbhushan-jadhav-india-rejects-consular-access>.

30. Ibid.

31. “India Demands Granting of ‘Full’ Consular Access to Jadhav” The Wire (25 July 2019), online: The Wire <https://thewire.in/diplomacy/kulbhushan-jadhav-india-demands-full-consular-access>.

32. Sidhant SIBAL, “India Demands Full Consular Access to Kulbhushan Jadhav” DNA India (3 August 2019), online: DNA India <https://www.dnaindia.com/india/report-india-demands-full-consular-access-to-kulbhushan-jadhav-2778408>.

33. India has already highlighted this point in its written pleadings; see Memorial of India, supra note 1 at 65–70.

34. Jadhav was convicted solely on the basis of his “confession” before the magistrate. Jadhav, during the review process, if conducted through civil courts, can submit that his confession was taken under torture.

35. Memorial of India, supra note 1 at 62–78 (India believes that the Pakistani military courts system is not fair, independent, and transparent); see also SHAH, Niaz A., “The Right to a Fair Trial and the Military Justice System in Pakistan” (2016) 7 Journal of International Humanitarian Legal Studies 330 at 352, 350CrossRefGoogle Scholar (which finds that the Pakistani military justice system blatantly violates fair trial standards: it is part of the Executive and is neither independent nor impartial).

36. Statute of the International Court of Justice, 26 June 1945, U.S.T.S. 993 (entered into force 24 October 1945), art. 60.

37. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Order of 16 July 2008, [2008] I.C.J. Rep. 311 at 323, paras. 44–6 [Provisional Measures Order 2008]; Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, 27 November 1950, [1950] I.C.J. Rep. 395 at 402.

38. Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, 10 December 1985, [1985] I.C.J. Rep. 192 at 216–17, paras. 44–6; Request for Interpretation of the Judgment of 11 June 1998 in the Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, 25 March 1999, [1999] I.C.J. Rep. 31 at 36–7, para. 12.

39. Provisional Measures Order 2008, supra note 37 at 323, para. 44.

40. International Court of Justice Rules of Court (1978), 14 April 1978, 17 I.L.M. (1978) 1286 (entered into force 1 July 1978), art. 98(2), online: ICJ <https://www.icj-cij.org/en/rules>.

41. Provisional Measures Order 2008, supra note 37 at 325, para. 53; Request for Interpretation 2009, supra note 23 at 9, para. 17.

42. Earlier in 2018, Pakistan provided a visit to Jadhav's mother and wife in the presence of governmental officials and with a tight security check-up. See infra note 46.

43. Art. 36(2) of the VCCR says that the right to consular access “shall be exercised in conformity with the laws and regulations of the receiving State”.

44. Ibid., a proviso to art. 36(2).

45. “Pakistan Prison Rules, 1978: Rules for the Superintendence and Management of Prisons in Pakistan”, Justice Project Pakistan (n.d.), online: Justice Project Pakistan <https://data.jpp.org.pk/en/document/ij4ejiwvn1e?page=2>.

46. “Statement by the Official Spokesperson on Shri Kulbhushan Jadhav's Meeting with His Family”, Ministry of External Affairs, Government of India (26 December 2017), online: MEA <https://mea.gov.in/press-releases.htm?dtl/29239/statement+by+the+official+spokesperson+on+shri+kulbhushan+jadhavs+meeting+with+his+family>.

47. The Pakistan Prisons Act of 1894, ss. 40, 41; Devirupa MITRA, “India Likely Won't Be Allowed to Speak to Kulbhushan Jadhav in Private. Here's Why” The Wire (22 July 2019), online: The Wire <https://thewire.in/diplomacy/kulbhushan-jadhav-consular-access-icj-india-pakistan>.

48. Quigley et al., supra note 5 at 59–63.

49. For instance, see Consular Convention Between the United States and the United Kingdom, 6 June 1951, 3 U.S.T. 3426 (entered into force 7 September 1952), art. 16(1); Consular Convention Between Sweden and the United Kingdom, 14 March 1952, 202 U.N.T.S. 2731 (entered into force on 24 September 1952), art. 19(2); Philippines-Spain Consular Convention, 20 May 1948; the United Kingdom-Italy Consular Convention, 1 June 1954. According to the State Department, the US has bilateral agreements with thirty-five countries which allow their consular officers to converse with their nationals in private. These countries are Antigua and Barbuda, Bahamas, Barbados, Belize, Brunei, Costa Rica, Cyprus, Dominica, Fiji, Gambia, Ghana, Grenada, Guyana, Ireland, Jamaica, Japan, Kiribati, Kuwait, Malaysia, Malta, Mauritius, Nigeria, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Seychelles, Sierra Leone, Singapore, Tanzania, Tonga, Trinidad and Tobago, Tuvalu, the UK, Zambia, and Zimbabwe. In cases of nationals of other counties, the manual issued by the State Department to law enforcement officials at federal, state, and local levels provides that privacy is encouraged but not required. See the United States Department of State, Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them, 5th ed. (Washington, DC: U.S. Department of State, 2018) at 7–8, 33.

50. Summary Records of Plenary Meetings and of the Meetings of the First and Second Committees, United Nations Conference on Consular Relations (Vol. I), UN Doc. A/CONF.25/16 (1963) [UN Conference on Consular Relations (Vol. I)]; Annexes; Vienna Convention on Consular Relations; Final Act; Optional Protocols; Resolutions, United Nations Conference on Consular Relations (Vol. II), UN Doc. A/CON.25/16/Add.1 (1963) [UN Conference on Consular Relations (Vol. II)].

51. Summary Records of the Twelfth Session, Yearbook of the International Law Commission 1960 (Vol. I), UN Doc. A/CN.4/SER.A/1960 (1960) [ILC Yearbook 1960 (Vol. I)]; Documents of the Twelfth Session Including the Report of the Commission to the General Assembly, Yearbook of the International Law Commission 1960 (Vol. II), UN Doc. A/CN.4/SER.A/1960/Add. 1 (1960); Summary Records of the Thirteenth Session, Yearbook of the International Law Commission 1961 (Vol. I), UN Doc. A/CN.4/SER.A/1961 (1961) [ILC Yearbook 1961 (Vol I)]; Documents of the Thirteenth Session Including the Report of the Commission to the General Assembly, Yearbook of the International Law Commission 1961 (Vol. II), UN Doc. A/CN.4/SER.A/1961/Add. 1 (1961) [ILC Yearbook 1961 (Vol. II)].

52. ILC Yearbook 1960 (Vol. I), supra note 51 at 42–62.

53. Ibid., at 42.

54. Ibid. (emphasis added).

55. Ibid., at 42, para. 4.

56. Ibid., at 42, para. 5 (emphasis added).

57. Ibid., at 42, 44. In this regard, the observation made by Mr Pal, another member of the ILC, is also equally important. He said that the provision enabling consuls to converse privately with detained nationals in such a situation of need can enable them to talk and communicate freely with their consul without thereby jeopardizing their defence. He was also in disagreement with Mr Ago's view that such provision should be made subject to the principle of reciprocity. Mr Pal viewed that such should be inserted without any bargaining qualification.

58. Ibid., at 57.

59. Ibid., at 45–47. Mr Amado observed that the proposed art. 30A was a most welcome advancement in the legislation on consular relations. Mr Bartos viewed that the provisions of art. 30A specified the duties of states in the matter of the right of communication, and that a great majority of states recognized the right of free communication between a consul and his nationals. Mr Scelle, Mr Sandstrom, and Mr Matine-Daftary also supported, in general, the relevance of art. 30A.

60. ILC Yearbook 1961 (Vol. II), supra note 51 at 113, art. 36, commentary, para. 5.

61. Ibid., at 112–13, art. 36(2) and para. 7; see Proposal by the Union of Soviet Socialist Republics: amendment to Article 36 of the draft convention, A/CONF.25/L.34, 16 April 1963. This proposal used the phrase “to nullify” which meant, according to the UK, to “render [the rights] completely inoperative”. But rights could be seriously impaired without becoming completely inoperative. Therefore, the UK preferred the positive approach to the second paragraph of art. 36 as approved by the Second Committee. Finally, the proposal of the Soviet Union was rejected and the UK's proposal was adopted; see UN Conference on Consular Relations (Vol. I), supra note 50 at 40.

62. VCCR, supra note 5, art. 36(2); this phrase was later added with the UK proposal to amend art. 36(2). See United Kingdom: Amendments to Article 36, United Nations Conference on Consular Relations (Vol. II), UN Doc. A/CONF.25/C.2/L.107 (1963), in UN Conference on Consular Relations (Vol. II), supra note 50 at 85.

63. ILC Yearbook 1961 (Vol. I), supra note 51 at 242, para. 25; ILC Yearbook 1961 (Vol. II), supra note 51 at 112; UN Conference on Consular Relations (Vol. I), supra note 50 at 35–43, 81–6, 331–48; UN Conference on Consular Relations (Vol. II), supra note 50 at 24, 130–2, 156, 169, 181.

64. This is one of the remedies which India asked the Court to declare; see Memorial of India, supra note 1 at 88.

65. Ibid., at 63–71.

66. Jadhav (India v. Pakistan), Order of 18 May 2017, [2017] I.C.J. Rep. 231 at 244–5, para. 56.

67. Jadhav (India v. Pakistan), Judgement, Separate Opinion of Judge Cançado Trindade, 17 July 2019, [2019] I.C.J. G.L. No. 168 at paras. 67–70.

68. International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force 23 March 1976) [ICCPR]. Pakistan acceded to the ICCPR on 23 June 2010, see “Status of Treaties—International Covenant on Civil and Political Rights”, United Nations Treaty Collection (last accessed 18 June 2020), online: UNTC <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en>.

69. Jadhav case, supra note 8 at paras. 36, 38, 135.

70. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (entered into force 27 January 1980).

71. “Agreement on Bilateral Relations Between the Government of India and the Government of the Islamic Republic of Pakistan (Simla Agreement)” United Nations Peacemaker (2 July 1972), online: UN Peacemaker <https://peacemaker.un.org/sites/peacemaker.un.org/files/IN%20PK_720702_Simla%20Agreement.pdf> at art. 1(ii).

72. PRATAP, Ravindra, “Provisional Measures and the Jadhav Case” (2017) 5 Groningen Journal of International Law 298 at 308–9CrossRefGoogle Scholar.