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.
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