Addressing the court within

By itself, the International Court of Justice’s order, delivered on May 18, imposing provisional measures injuncting Pakistan from executing an Indian national, Kulbhushan Jadhav, is entirely unexceptional. The ICJ has merely arrived at a prima facie satisfaction — based on an analysis at first sight — that it possesses the power to rule on India’s application, and that India’s rights, under the 1963 Vienna Convention on Consular Relations, have plausibly been violated by Pakistan’s detention, trial and ultimate sentencing to death of Jadhav. There is now a worry, not without cause, that Pakistan may not comply with the ICJ’s direction, despite its explicitly binding status. What’s more, the internationalisation of the dispute potentially comes with its political ramifications for India. But much as all these considerations can serve as a basis for cynicism, we mustn’t despair at India’s choice. Its victory, impermanent as it may ultimately prove to be, must be celebrated for what it is: a vindication of the rule of law.

Dispelling old concerns

Too often ontological concerns encumber the study of international law — questions tend to revolve around whether international law is really law at all, and, if so, whether its principles even matter. Despite consistent empirical evidence which shows that international law positively influences state behaviour, these questions, seeped in scepticism, somehow never seem to go away. India’s choice of the ICJ as a legitimate site for dispute resolution, even if it was borne out of self-interest, can help dispel some of these age-old concerns. But for that to happen, India must take on the additional responsibility that comes with its choice, to show us that it possesses the moral authority to charge other nations with a breach of the law. To achieve this, we must drive the Indian government towards greater domestic compliance with its own obligations under both treaty and customary law alike, to demonstrate that our own sense of conscience is stirred by the mandates of the world order.


First, though, let’s consider the facts of the present dispute, as they are. Although India and Pakistan disagree over the precise nature of who Mr. Jadhav is and where he was arrested, the crux of India’s case, which Pakistan hasn’t particularly disputed on facts, is this: that Mr. Jadhav was denied consular access, despite numerous requests from India. Pakistan claims that these actions do not breach the Vienna Convention, as Jadhav was involved in espionage and sabotage. India submits that the treaty creates no such exception and that the denial of consular access is an infringement for which Pakistan must make reparations. To this end, India has sought, among other things, an order that would declare the sentence of the Pakistani military court as violating Article 36 of the Vienna Convention, which both countries as parties are bound by.

This provision defines the rights granted to consular officials, with a view to helping them exercise their consular functions. Specifically, it accords a privilege to officials to not only freely communicate with any national of its state detained in the other country, but also the right of visiting the detained individual, and arranging for legal representation, if the détenu so desires. It is India’s case that these privileges were denied to it. Pakistan alleges that the Convention’s privileges were not only inapplicable, but that the ICJ, in any event, lacks the jurisdiction to decide the dispute. Or, in other words, the court, it says, does not possess the power to make a legal determination on the dispute.

Ordinarily, rows between nations can be taken to the World Court only if both parties consent to the court’s jurisdiction. In this case, however, India relies on Article 36(1) of the Statute of the ICJ which accords to the court the power to decide disputes arising out of treaties or conventions that specifically vest the court with compulsory jurisdiction. The Vienna Convention, through an optional protocol that both India and Pakistan are signatories to, is one such agreement.


ICJ in the picture

As India has pointed out in its application, the ICJ has, at least in two notable instances, entertained applications under Article 36(1) of its statute for breaches of the Vienna Convention. In 2001, the court ruled that the United States had violated its obligations to Germany in denying consular access to the LaGrand brothers, citizens of Germany who had been convicted and sentenced to death in the state of Arizona. Similarly, in the Avena case in 2004, the court ruled that the U.S. had failed to comply with the Vienna Convention in several instances involving Mexican nationals. The court here directed the U.S. to review and reconsider its convictions and sentences, in a manner that would take into account the breaches made of the treaty.

Pakistan, for its part, has resisted references to LaGrand and Avena. It claims that the two countries are governed by a 2008 bilateral agreement on consular access, which effectively exempts Pakistan from its obligations under the Vienna Convention, and which also ousts altogether the ICJ’s jurisdiction. More ominously, however, it argues that the Vienna Convention does not apply when a person has been detained for offences involving espionage or terrorism, as concerns over national security always trump the demands of consular relations.


The ICJ is yet to rule conclusively on any of these arguments. It has only granted India provisional measures pending a final adjudication. But, on any reasonable final consideration, Pakistan’s arguments ought not to pass muster. The 2008 bilateral understanding between the countries no doubt imposes particular responsibilities on them, but by no means does it relieve either country from its obligations under the Vienna Convention. As the opinions in LaGrand and Avena make clear, once a foreign national is arrested the state making the arrest has a duty to allow the consular officials of the sending state to visit the détenu and to render to him all the assistance that he needs. It’s easy to see that Pakistan is in breach of this fundamental obligation. Its endeavour to wriggle out of this responsibility citing concerns over national security is also likely to fail. Were such an argument to be accepted, it would potentially lead to a most dangerous situation, where countries can ignore their consular obligations purely because they consider the sending state an enemy.

Whichever way the ICJ’s decision might eventually go, the critical question, for now, though remains this: will Pakistan obey the court’s provisional measures? Should it choose to ignore the order, it can glean much from the American experience. The U.S., after all, went ahead in executing one of the LaGrand brothers despite an explicit injunction from the ICJ, prohibiting it from carrying out the death sentence, pending a final adjudication. Ultimately, in 2005, the U.S. withdrew altogether from the Optional Protocol, which grants the ICJ compulsory jurisdiction over claims made under the Vienna Convention.

A glass already half full

When we see naked expressions of power such as this, it’s easy to conclude that international law exists in vacuity, that its principles aren’t merely flawed but that they are also law only in their name. However, we can still see the present proceedings as a tunnel that ends with the optimistic light of day. Even if Pakistan were to disregard the ICJ’s order, the case shows us that there do exist concrete sources — a treaty in this case — which impose an ethical duty on nation-states to follow the rule of law. It allows us to consider what the scholar Thomas M. Franck described as “post-ontological” questions, to address not whether international law really is law, but the more normative concerns over how best to enforce its commands. We must therefore use this opportunity to shun scepticism, and appeal to our finest sense of conscience. We can only do this by resisting a push for greater governmental freedom at the domestic level, which invariably tends to carry itself into the sphere of international relations, where our own obligations — think climate change, customary refugee law, fundamental human rights, among others — often stand breached. To set the right moral example we must start from within.

Suhrith Parthasarathy is an advocate practising at the Madras High Court

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Printable version | Dec 7, 2021 1:18:28 AM | https://www.thehindu.com/opinion/lead/addressing-the-court-within/article18520083.ece

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