Opinion: Legal loopholes may cost Kulbhushan Jadhav his life

In the case of Kulbhushan Jadhav, India has invoked the jurisdiction of the International Court of Justice (ICJ) under the Optional Protocol to the Vienna Convention of Consular Relations. The Optional Protocol provides that in case States have a dispute under the Convention, they are to bring the dispute to the ICJ. 

India has protested before the ICJ that Jadhav's and India’s rights under Article 36 of the Convention have been violated. 

Article 36 of the Vienna Convention is a right to Consular Access. It's a two-way right, it provides a foreign national the right to contact their embassy and it provides a foreign state to contact their nationals in the case of an arrest. 

Which is why it is quite surprising that nowhere in India's pleadings has India actually asked the ICJ to direct Pakistan to provide consular access to Jadhav. 

At Paragraph 60 (Page 31) are the reliefs. India has asked for four reliefs, including, the death sentence be overturned and a fresh trial be granted. Failing which, Jadhav be released as no other remedy could be provided for.

Except there is one main remedy that could be provided for, namely, the grant of consular access to Jadhav. 

It seems quite odd that India hasn't sought for the grant of consular access to Jadhav either in its Main Application or even in its request for provisional measures. 

What purpose will a stay serve if India’s High Commissioner in Islamabad is still unable to reach out to Jadhav and help him navigate the Pakistani court system in the interim? The final remedy in a consular access case must obviously be consular access. For example, the ICJ cannot say that Jadhav cannot be tried by Pakistani military courts for that would be sitting in review of Pakistani laws. If it orders a fresh trial (which is a restoration of the status quo and annulment of the conviction), the trial will be before a military court again. Also, Pakistan could go ahead with this entire fiasco of denying consular access again because India has failed to ask the ICJ to direct Pakistan to cease from further breaches of the Convention or permit it consular access to Jadhav in the event of a new trial. 

In this case, challenging the legality of the sentence under International Law would mean challenging the death penalty. Which is something India can't do as the death penalty is legal in India, and our international position has been that it is legal under the international law too. More importantly, such a plea wouldn't fall within the scope of the jurisdiction conferred under the optional protocol. Neither are we challenging military courts, as India has a system of military courts as well. 

Which is why it is odd that there is no prayer clause seeking a declaration that India has suffered a breach of the Convention in relation to its right as a Sate to provide consular access to its nationals.

In the case of Mexico v. the United States (Avena and Other Nationals) Mexico approached the ICJ on behalf of 54 of its citizens who had been sentenced to death before Untied States courts without allowing Mexico to exercise its rights under the Vienna Convention. Mexico said, the US failed to inform its nationals their right to consular access and then failed to allow Mexico to provide them with consular access. It meant the US deprived Mexico of the right to provide consular protection and the right of its nationals to receive such protection. Two breaches of the Vienna Convention and, thus, Mexico was suing on behalf of itself and its nationals. 

The key thing to note here is that Mexico had sued on behalf of itself as a State and had said that the breaches were committed against it as a State and in turn to its nationals. The breach being the violation of the right of a State to provide diplomatic protection over its nationals - a right that is recognised under the Vienna Convention. 

Mexico accordingly asked the Court to restore the original position (restitutio in integrum) and then restore the status quo by annulling the conviction or the effect of the convictions. Thus, Mexico's prayer flowed from a breach of the Treaty without challenging the validity of the sentence that was being awarded. Further, Mexico also sought a direction from the ICJ that in future cases such access be granted and the United States cease from such breaches. 

These technicalities matter before the ICJ as the Court can legitimately ask, what is the breach of the Vienna Convention that has been committed. Without a prayer from India, showing a nexus to the breach, it makes India's application seem quite premature on the grounds of Jurisdiction. 

The ICJ is a body whose clear purpose is the pacific settlement of International Disputes. It tries to appear as neutral as possible, meaning that jurisdiction is taken very seriously at the Hague. Especially, when jurisdiction itself is a bone of contention between the Parties. 

India and Pakistan are two countries that are geopolitical heavyweights and the region is always prone to flaring up, and the Court may be less inclined to interfere unless it absolutely has to. 

The views of the author are personal and do not necessarily reflect those of WION.