The long journey to freedom

The much-awaited order from the International Court of Justice (ICJ) is out and it is in favour of India as well as  former naval officer Kulbhushan Jadhav. It was India that had initiated the proceedings so as to be able to defend Jadhav, who was sentenced to death by a Pakistani military court last month.

The President of the ICJ, while reading the operative portion of the unanimous order in the public court session at the Hague, said that the Islamic Republic of Pakistan must “take all measures at its disposal” to ensure that Jadhav is not executed pending a final judgment of the court. It also directed Pakistan to keep the court informed about all the measures taken in implementation of the order.

Earlier, India had instituted proceedings on May 8, 2017, for violation of Protocol to Vienna Convention on Consular Relations (VCCR) by Pakistan. India was forced to take this step as our neighbouring country was repeatedly shooting down requests for consular access in Jadhav’s case.

As per the tenets of international law, if a foreign subject is wronged by the local authorities, his consul may give him advice and help, and eventually intervene on his behalf.

The court in the present case found that it had the requisite jurisdiction to order a provisional measure under Article 36 paragraph 1 of the Vienna Convention on the Consular Relations, and under Article 1 of the Optional Protocol to the Vienna Convention on consular Relations. The Optional protocol lays down that the court has jurisdiction over “disputes arising out of the interpretation or application of the [Vienna] Convention”.

The court also noted that the acts alleged by India, ie, the impugned failure of Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Jadhav, as well as the failure to provide access to him,  fall within the scope of the convention.

The ICJ concluded that legal requirements to order a provisional measure are met in this case.  Justice Dalveer Bhandari, a member of  the 11-judge bench which gave the interim relief to Jadhav, discussed four requirements  for  the  grant  of provisional measures:  namely, (i) prima  facie jurisdiction;  (ii)  plausibility;  (iii)  real  and  imminent  risk  of  irreparable prejudice; and (iv) the link between the rights claimed on the merits and the provisional measures requested.

The court also pointed out that it was not in agreement with the contention raised by Pakistan that spies and terrorists are exempted from getting consular access.

The 2008 Bilateral Agreement between India and Pakistan limiting the consular access, according to the court, did not change the court’s view on consular access. In most of the consular access related cases brought before the ICJ, the important remedy sought was provisional measures such as staying of execution.

In international law, consular access has been looked into as a right of a State and also right of an individual detainee in a foreign country.Under the contemporary international law, this right has been more and more pronounced and acknowledged as a right of an individual.

The concurring opinion of Judge Cançado Trindade placed more emphasis on this point. He observed that provisional measures of protection…have become true jurisdictional guarantees of a preventive character, safeguarding, to begin with, the fundamental and non-derogable (rather than “plausible”) right to life (in addition to the right to liberty and security of person, and the right to a fair trial) .

The ICJ order is significant in terms of the development of international law. This makes both India and Pakistan cautious in their approach in dealing with prisoners of a foreign country in their jails. But the real question is: does this really help extend Jadhav’s life?  This cannot be answered by the world court. There are instances where despite a stay of execution by the world court, prisoners waiting on death row were executed by sovereign States. Nothing has happened thereafter in terms of disciplining the state.

The ICJ also observed that the order is binding on Pakistan. While it is, indeed, true that the order is binding but what course of action is left to India,  in case, Pakistan refuses to honour the order. Currently, there is no executive organ to implement an order of this nature.

I do not think that implementation of justice through the UNSC is a realistic option as the organisation is a political organ where a decision is taken not on merit but by voting.

What’s next — back to the diplomatic channel or mediation? I don’t  think there is a way out. One thing that we have proved by approaching the ICJ is that we are great strategists, working on optics and creating narratives for domestic and global consumption.

The author is Professor and Dean of the VIT School of Law, Chennai, and former Vice President of Indian Society of International Law