ICJ’s limited jurisdiction

India has approached the International Court of Justice seeking to stay the execution of Kulbhushan Jadhav. India has raised its claims before the court under Article 36 of the Vienna Convention on Consular Relations, which grants the right of consular access to a foreign national “who is in prison, custody or detention” and the optional protocol to the VCCR, which establishes the ICJ as the venue for resolving disputes under the VCCR. To raise its claims, India has relied upon the court’s compromissory jurisdiction under Article 36(1) of the statute of the ICJ which allows the latter to exercise its jurisdiction on the basis of a ‘special agreement’ — in this case the optional protocol.

The court’s jurisdiction in such cases is, however, limited solely to the interpretation or application of the special agreement. The court cannot decide on matters beyond the scope of the concerned treaty, and as Article 36 of the VCCR only deals with communication and contact with nationals of the sending state it does not impact convictions for espionage under domestic or international law at all. Further, Pakistan is a dualist state, wherein any international treaty signed can only be given effect domestically once it has been codified in the corpus of domestic laws through implementing legislation. Consular access has not been a right explicitly guaranteed under the Diplomatic and Consular Privileges Act, 1972.

Further, India’s claims rely upon a peacetime conception of international law, wherein consular officials are guaranteed access to “nationals of the sending state” tried or convicted of ordinary criminal offences. In Jadhav’s case, however, this legal framework seems inapplicable — as a spy he engaged in activities including fomenting insurgency and attempting to destabilise southwestern Pakistan. His activities would fall within the purview of International Humanitarian Law, the lex specialis or specific law governing the conduct of hostilities between nations.

Pakistan is well within its rights to try and sentence Jadhav under its domestic laws for espionage.
The Geneva Conventions provide much of the substance of IHL. Within this framework the Geneva Convention IV of 1949 is of particular significance, and relates to the treatment of non-combatants in times of hostilities. As per Article 5 thereof, when such a non-combatant is detained as a spy he forfeits his rights of communication under the convention. While such a person must, as per Article 5, be treated with humanity and has the right to a fair trial, there is nothing under IHL which prevents an individual from being sentenced to death for espionage.


IHL also draws a clear distinction between those engaged in hostilities and those engaged in espionage. This principle is enshrined in Additional Protocol I (AP I) to the Geneva Conventions, reflecting a long-established principle of international law present in earlier international legal instruments. Combatants who adhere to IHL principles are, if captured, immune from prosecution for acts committed while engaging in hostilities. This, however, does not apply to those engaged in espionage: as per Article 46(1) of AP I any member of the armed forces of a party to the conflict who falls into the power of the other party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy. Instead, the requirements under Article 75 of AP I are for humane treatment and a fair trial. In this light, therefore, Pakistan is well within its rights to try and sentence Jadhav under its domestic laws for committing espionage.

While Jadhav’s activities were hostile acts, inimical to Pakistan’s national security and stability, even if one were to assume that the peacetime regime of international law applied, India’s claims before the ICJ would remain problematic. India’s declaration to the compulsory jurisdiction of the ICJ under Article 36(2) of the ICJ statute ousts the jurisdiction of the court on matters relating to actions taken in self-defence or in resistance to aggression.

As per the well-established international law principle of reciprocity, the caveats India incorporated into its own declaration are also exercisable by Pakistan. The court will thus have to determine whether exercising compromissory jurisdiction would result in a de facto exercise of compulsory jurisdiction in areas over which it lacks jurisdiction. The dispute revolves around the actions of Jadhav, an individual tried and sentenced by a competent court as a spy and saboteur, and thus necessarily falls within the purview of “actions taken in self-defence or in resistance to aggression”.

Furthermore, even if the court decides that it has jurisdiction in this case it is highly unlikely it will establish admissibility as all local remedies have not yet been exhausted; even if the case reaches the merits — and India is successful — a determination of a violation of consular access still has no bearing on the illegality of Jadhav’s actions or the nature of his awarded punishment as such are beyond the scope of the VCCR.

Jadhav’s situation, while peculiar, is not entirely without precedent. In Medellin v. Texas the accused was a Mexican national tried and sentenced to death by the courts of Texas, despite Mexico being denied consular access to him. Following his appeal, the US Supreme Court — upholding Medellin’s sentence — held that even if a treaty constitutes an international obligation it is not binding under domestic law unless the treaty is self-executing or the legislature enacts the necessary implementing legislation.

The court also held that the ICJ’s decisions were nonbinding under domestic law and that, without authority from the legislature or the constitution, the head of state could not unilaterally enforce international treaties or ICJ decisions. While proceedings were under way before US domestic courts, Mexico moved the ICJ on much the same grounds as India has —ie denial of consular access to the accused. And while the ICJ finally held in favour of Mexico, the courts of the US nonetheless asserted the supremacy of domestic law over the pronouncements of the ICJ and the VCCR.

The Republic of India institutes proceedings against the Islamic Republic
of Pakistan and requests the Court to indicate provisional measures

THE HAGUE, 9 May 2017. On 8 May 2017, the Republic of India instituted proceedings
against the Islamic Republic of Pakistan, accusing the latter of “egregious violations of the Vienna
Convention on Consular Relations” (hereinafter the “Vienna Convention”) in the matter of the
detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav, sentenced to death by a
military court in Pakistan.
The Applicant contends that it was not informed of Mr. Jadhav’s detention until long after
his arrest and that Pakistan failed to inform the accused of his rights. It further alleges that, in
violation of the Vienna Convention, the authorities of Pakistan are denying India its right of
consular access to Mr. Jadhav, despite its repeated requests. The Applicant also points out that it
learned about the death sentence against Mr. Jadhav from a press release.
India submits that it has information that Mr. Jadhav was “kidnapped from Iran, where he
was carrying on business after retiring from the Indian Navy, and was then shown to have been
arrested in Baluchistan” on 3 March 2016, and that the Indian authorities were notified of that
arrest on 25 March 2016. It claims to have sought consular access to Mr. Jadhav on 25 March 2016
and repeatedly thereafter.
According to the Applicant, on 23 January 2017, Pakistan requested assistance in the
investigation of Mr. Jadhav’s alleged “involvement in espionage and terrorist activities in Pakistan”
and, by a Note Verbale of 21 March 2017, informed India that “consular access [to Mr. Jadhav
would] be considered in the light of the Indian side’s response to Pakistan’s request for assistance
in [the] investigation process”. India claims that “linking assistance to the investigation process to
the grant[ing] of consular access was by itself a serious violation of the Vienna Convention”.
India accordingly “seeks the following reliefs:
(1) [a] relief by way of immediate suspension of the sentence of death awarded to the accused[;]
(2) [a] relief by way of restitution in interregnum by declaring that the sentence of the military
court arrived at, in brazen defiance of the Vienna Convention rights under Article 36,
particularly Article 36[,] paragraph 1 (b), and in defiance of elementary human rights of an
accused which are also to be given effect as mandated under Article 14 of the 1966
International Covenant on Civil and Political Rights, is violative of international law and the
provisions of the Vienna Convention[;] and
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(3) [restraining ]Pakistan from giving effect to the sentence awarded by the military court, and
directing it to take steps to annul the decision of the military court as may be available to it
under the law in Pakistan[;]
(4) [i]f Pakistan is unable to annul the decision, then this Court to declare the decision illegal being
violative of international law and treaty rights and restrain Pakistan from acting in violation of
the Vienna Convention and international law by giving effect to the sentence or the conviction
in any manner, and directing it to release the convicted Indian National forthwith.”
As the basis for the Court’s jurisdiction, the Applicant invokes Article 36, paragraph 1, of
the Statute of the Court, by virtue of the operation of Article I of the Optional Protocol to the
Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of
24 April 1963.
On 8 May 2017, India also filed a Request for the indication of provisional measures,
pursuant to Article 41 of the Statute of the Court. It is explained in that Request that the alleged
violation of the Vienna Convention by Pakistan “has prevented India from exercising its rights
under the Convention and has deprived the Indian national from the protection accorded under the
Convention”.
The Applicant states that Mr. Jadhav “will be subjected to execution unless the Court
indicates provisional measures directing the Government of Pakistan to take all measures necessary
to ensure that he is not executed until [the] Court’s decision on the merits” of the case. India points
out that Mr. Jadhav’s execution “would cause irreparable prejudice to the rights claimed by India”.
India further indicates that the protection of its rights is a matter of urgency as “[without ]the
provisional measures requested, Pakistan will execute Mr. Kulbhushan Sudhir Jadhav before [the]
Court can consider the merits of India’s claims and India will forever be deprived of the
opportunity to vindicate its rights”. The Applicant adds that it is possible that the appeal filed by
the mother of the accused on his behalf may soon be disposed of.
India therefore requests that, “pending final judgment in this case, the Court indicate:
(a) [t]hat the Government of the Islamic Republic of Pakistan take all measures necessary to ensure
that Mr. Kulbhushan Sudhir Jadhav is not executed;
(b) [t]hat the Government of the Islamic Republic of Pakistan report to the Court the action it has
taken in pursuance of sub-paragraph (a); and
(c) [t]hat the Government of the Islamic Republic of Pakistan ensure that no action is taken that
might prejudice the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav with
respect of any decision [the] Court may render on the merits of the case”.
Referring to “the extreme gravity and immediacy of the threat that authorities in Pakistan
will execute an Indian citizen in violation of obligations Pakistan owes to India”, India urges the
Court to deliver an Order indicating provisional measures immediately, “without waiting for an
oral hearing”. The Applicant further requests that the President of the Court, “exercising his power
under Article 74, paragraph 4[,] of the rules of the Court, pending the meeting of the Court . . .
direct the Parties to act in such a way as will enable any Order the Court may make on the Request
for provisional measures to have its appropriate effects”.

__________________
“What we need in this country today is more courage and more belief in the things that we have.”- Thomas J. Watson

Indian lawyers seemed divided over India’s decision.

“I am not sure it is a wise move to go to the ICJ. Pakistan could cite precedence when India said the ICJ has no jurisdiction in a case in 1999 involving Pakistan,” said Narendra Singh, the secretary general of the Indian Society of International Law.

New Delhi listed in 1974 subjects linked to India that the ICJ can adjudicate. India does not accept the ICJ’s jurisdiction on “disputes with the government of any state which is or has been a member of the Commonwealth of Nations”.

In 1999, a Pakistani military plane was shot down in Indian airspace over the Rann of Kutch. When Pakistan approached the ICJ, India said the international court didn’t have the jurisdiction to hear the case. The court accepted the argument.

Shashank Kumar, who previously worked with the ICJ said: “As the bases for jurisdiction are separate, a comparison with what happened in the aerial incident case, in my view, does not really answer whether Pakistan may at present comply or not.”

Senior lawyer Harish Salve will represent India when the ICJ hears the Jadhav case. India will seek directions to Pakistan to annul the execution order issued in violation of international law.

Hindustan Times

Thank you for sharing the invaluable material. It covers Current Affairs, Pakistan Studies and International Law questions. Could you please share relevant clauses of statue of International Court of Justice, charter of United Nations Organisation and VCCR pertaining to this very case?