The International Court of Justice (ICJ) has initiated proceedings to determine whether ICJ has jurisdiction to adjudicate a matter referred to it by India relating to the death sentence given to an Indian national, Kulbhushan Jadhav, in Pakistan.
India claims that by disallowing consular access to Jadhav, Pakistan has committed a violation of its commitments as enshrined in the Vienna Convention on Consular Relations (VCCR).
Pakistan needs to put up effective legal arguments before the ICJ which will initially involve challenging the jurisdiction of the ICJ to adjudicate upon India’s application. The first hearing will be held on Monday, May 15, at the ICJ in The Hague, Netherlands.
This article will, therefore, primarily deal with the question of ICJ’s jurisdiction and before we delve into an analysis of ICJ’s jurisdiction in the instant matter, it is important to understand that ICJ’s jurisdiction to adjudicate upon contentious matters is consensual and can be based on: a special agreement containing the assent of the parties recognising the jurisdiction of the ICJ to decide the dispute between them; recognition of ICJ’s jurisdiction particularly in respect of “matters specially provided for in the Charter of the United Nations or in treaties and conventions in force” or optional clause declaration under Article 36 (2) of ICJ’s Statute which allows states to “recognise as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court”.
Hence, ICJ can only proceed to decide an application on merits provided its jurisdiction stands established on the basis of any one of the foregoing conditions.
In the instant matter, India has contended that the jurisdiction rests with the ICJ in terms of Optional Protocol concerning the Compulsory Settlement of Disputes (OP) to VCCR which provides that, “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice” and since both, Pakistan and India, are parties to the OP, ICJ can, therefore, proceed to decide India’s application on merits.
On an initial review, it may appear to one that Pakistan may not be in a position to raise any strong objections to the jurisdiction of ICJ. However, careful perusal of the available record and the Indian application to the ICJ reveals that the two countries signed an ‘Agreement on Consular Access’ (Agreement) dated 21 May 2008 which not only modifies the obligations that the two countries have towards each other in respect of allowing consular access but also nullifies the applicability of VCCR to the extent of such access.
More importantly, the Agreement, unlike the OP to VCCR, does not provide for any dispute resolution mechanism that the two sides have agreed upon.
Therefore, any dispute arising in respect of the Agreement requires specific assent of both the parties for it to be adjudicated upon by the ICJ. Furthermore, the Agreement in clause (vi) provides that in the case of arrest or detention on grounds of security, each side (Pakistan and India) may examine the case on its merits, and does not contain any obligation to either inform the other party or allow consular access.
What follows as a necessary corollary is that Pakistan was well within its right to examine Jadhav’s case on its merits for he had been detained pursuant to his involvement in subversive activities.
The foregoing argument stems from Article 30 of the Vienna Convention on the Law of Treaties (VCLT) which is the document enshrining rules of interpretation pertaining to treaties. Article 30 (3) of VCLT provides in explicit terms that:
“When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies to the extent that its provisions are compatible with those of the later treaty.”
Article 30 (3) is further supplemented by Article 30 (4) (a) which provides that:
“When the parties to the later treaty do not include all the parties to the earlier one” but “two parties, each of which is a party to both treaties, the same rule applies as in paragraph 3 (Article 30 (3))”.
Accordingly, considering that the instant case is built around arguments related to consular access, it is evident, in terms of Article 30 (3) of VCLT, that VCCR remains applicable between Pakistan and India to the exclusion of Article 36 of VCCR, meaning that there is no express obligation on Pakistan to grant consular access to Kulbhushan Jadhav and that this case can be decided by Pakistan on its merits.
Furthermore, the Agreement does not contain any clause which may hint that the Agreement is operative subject to VCCR. Therefore, it can be argued that the Optional Protocol to VCCR thereby becomes inapplicable in the instant matter barring ICJ from assuming jurisdiction in this case.
One potential resistance against the foregoing argument would branch out from Article 102 of the UN Charter which requires member states to register treaties and international agreements entered into by them with the UN Secretariat – the consequence of non-registration being that the non-registered treaty, in this case the Agreement, may not be invoked before any UN organ. India would, therefore, contest any argument based on the Agreement coming from the Pakistani side.
But any resistance based on Article 102 of the Charter can be effectively countered based on the fact that Article 102 does not completely bar a member state from relying on an unregistered agreement since the term used in Article 102 is ‘may’ and not ‘shall’.
In Qatar versus Bahrain, ICJ held that, “Non-registration or late registration, on the other hand, does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties.”
The observation is further supplemented by Article 26 of the VCLT which requires parties to a treaty to uphold and perform its provisions in good faith. ICJ observed in Gabcikovo-Nagymaros Case that the intention of the parties in concluding a treaty should prevail. Non-registration of the Agreement would, therefore, not affect the applicability of the Agreement in the present case.
Moreover, India has not denied the Agreement and it is quite possible that two states have acted under the Agreement several times which increases the prospects of its application in the instant matter.
The foregoing is an analysis of what is likely to happen in the first few hearings with Pakistan objecting to the jurisdiction of the ICJ in the hearing that will take place on 15th May 2017.
It is probable that Pakistan would succeed in the very first round and India will suffer a technical knockout resulting from ICJ’s lack of jurisdiction to decide the instant matter.
Published in the May 15, 2017 issue of Dawn
https://www.dawn.com/news/1333281