India-Pakistan & Kulbushan Jadhav at ICJ: Takeaways & Future possibilities

On July 17, 2019, both India and Pakistan declared the ‘International Court of Justice (ICJ)
ruling’ as a great diplomatic victory as the world court announced its verdict on the Kubushan
Jadhav case. Kubushan Jadhav was arrested by Pakistan in march 2016, tried in Pakistan’s
military court and was sentenced death penalty on the charges of espionage and terrorism in
April 2017.1 As the ICJ – principle judicial organ of United Nations, delivered its verdict on
Kulbushan Jadhav, there was only one question on each side- who won the legal battle?
The story so far
The Kulbushan case, as it happened since the arrest of Kulbushan Jadhav2, intensified the
relations between two countries and subsequent events lead the relations where they stand today.
India and Pakistan signed a bilateral agreement on ‘counselor access’ in 2008 to jointly combat
terrorism and promote cooperation.3

On the Anvil: Jurisdiction, Merits, Remedies

The first issue up for determination is that of jurisdiction, which has been invoked
based on Article 1 of the Optional Protocol,as a result of a “dispute arising out of the
interpretation or application of the Convention”. The dispute in question relates to
Article 36 of the VCCR. Pakistan argues however that there is no dispute per the
VCCR, and that instead the compulsory jurisdiction of the ICJ based on Article 36 (2)
of the Statute of the ICJ is at issue here. The argument is made that such compulsory
jurisdiction is excluded for cases relating to national security, based on a declaration
entered by Pakistan on March 29, 2017. Another argument brought up against the
court exercising jurisdiction is the 2008 bilateral agreement between India and
Pakistan on consular relations, which is argued excludes cases on “…political or
security grounds…” and thereby modifies the VCCR as between India and Pakistan.
On this point, the ICJ will need to determine whether a subsequent agreement can
restrict the scope of the obligations of the VCCR, to which both parties are
signatories. An analysis of the 2008 agreement as well as Article 73(2) of the VCCR,
which relates to other agreements “…confirming, supplementing, extending or
amplifying…” the provisions of the VCCR, will be crucial.  
1
Tooba Khurshid, “ICJ Verdict on Jadhav Case: The Battle is not Over Yet,” Issue Brief, May 22, 2017
<http://issi.org.pk/wp-content/uploads/2017/05/IB_Tooba_dated_22-5-2017.pdf>
2
See Tooba Khurshid, “ICJ Verdict on Jadhav Case: The Battle is not Over Yet,” Issue Brief, May 22, 2017
<http://issi.org.pk/wp-content/uploads/2017/05/IB_Tooba_dated_22-5-2017.pdf
3
“India, Pakistan ink deal on counselor access to prisoners,” India Today, May 21, 2008
<https://www.indiatoday.in/latest-headlines/story/india-pakistan-ink-deal-on-consular-access-for-prisoners-
25525-2008-05-21>
If the ICJ finds it has jurisdiction in the case, it will then consider questions relating to
violation of the treaty in question. Assuming that the jurisdiction is restricted to the
Optional Protocol, it is questionable whether the court will examine the content of
violations of Article 14 of the International Covenant on Civil and Political
Rights (ICCPR) which India has brought up. The court will limit itself to violations of
Article 36 of the VCCR, which requires that consular officers have access to those
detained or arrested. The denial of access to Jadhav and the inability to provide legal
representation will be scrutinized as part of this substantive violation. What will also
come up however will be the scope of the obligations under Article 36 – and whether,
as Pakistan argues, these can be restricted for those accused of terrorism. While the
Indian argument is that the consular obligations are linked to the right to a fair trial
under the ICCPR, it is unlikely that the court will address the death penalty
imposition, or whether the right to fair trial has been violated under the ICCPR as a
result of a military court trial. 
The remedies sought by India are extensive, and include a suspension of the death
sentence, annulment of the military court decision or a declaration by the ICJ of the
illegality of the decision, and the release and safe passage of Jadhav back to India.
Past jurisprudence of the ICJ, such as in in the LaGrand case (Germany vs. US) and
the Avena case (Mexico vs. US), indicates the limitations of these arguments. The
furthest the ICJ has gone is an order to ‘review and reconsider’ the decision by the
state in question. How such a review is done is for the state itself to determine. There
are some constraints – that it must be “effective” and include judicial review – but
overall the ICJ will not step in to make a determination on behalf of the parties. 
Predictions and Implications
This case brings up a few legal issues that have not been determined definitively
before, and it will be interesting to see the approach of the court. I venture a few
predictions here, based on past jurisprudence and my reading of the case.

On jurisdiction, the ICJ will most likely find that it does have jurisdiction based on the
Optional Protocol to the VCCR, and will proceed to the merits of the case. It will also
in likelihood find a violation of Article 36 of the VCCR, in the denial of consular
access to Jadhav. On this point, it will be interesting to see how the court interprets the
2008 Agreement, as well as the question of espionage as a reason to deny consular
access. On remedies, I assume that the court will follow its jurisprudence – and will
order for the ‘review and reconsideration’ of the proceedings by Pakistan. I do not
think the court will order the extensive remedies asked for by India, such as a civil
court trial, suspension of the sentence or release.  

While the bilateral relations of India and Pakistan often become a focus and heighten
interest, there is a need to look at this case beyond the India-Pakistan dynamic, and
look to the wider legal and policy implications. 

One legal argument that has particularly significant implications is the question of
withholding consular access in cases that relate to ‘political or security’ grounds. This
is a slippery slope, as consular relations and access are based on reciprocal relations
between states, embodied in international law and practice. Exceptions being read into
these provisions can lead to an erosion of some of these basic guarantees, which can
be detrimental in the longer term, beyond the remit of this case. Another aspect to
keep track of in the future – not necessarily in the outcome of this case, but certainly
highlighted by the issues brought up here – is the greater engagement with individual
rights by the ICJ, which has a state centric focus and is not a human rights court.
JudgeCançado Trindade’s concurring opinion to the Provisional Measures Order in
this case refers to the ‘humanization’ of international law. Cases such as this highlight
the dichotomy and the potential blurring of the lines between a focus of the rights of
state versus that of the individual. Finally, the impact of an ICJ decision can have
consequences on treaties entered into by states. For instance, the U.S. withdrew from
the Optional Protocol of the VCCR in 2009, in part as a result of cases at the ICJ.
Furthermore, the decision of the court impacts consular relations between the two
states, as well as for nationals of other third-party states. 

And last, but certainly not least, this case has implications in regard to an individual
who has been sentenced to death, the gravest of penalties.