Legal Propositions In Jadhav’s Case In ICJ

Legal Propositions In Jadhav’s Case In ICJ

The government has been rendering clarifications for last few days with respect to the legal strategy adopted in Jadhav’s case before the International Court of Justice (ICJ). The key points are that,

(a) International Court of Justice cannot overrule Jadhav’s conviction,

(b) to make Pakistan’s case winnable, the evidence against Jadhav establishing that he has been conducting terrorist activities in Pakistan under India’s command and that he has been spying in Pakistan for India, shall be presented before the ICJ with full force, and

(c) whatever the decision by the ICJ would be, it will be an option for Pakistan to decide for its implementation in accordance with its domestic legal regime.

It has been passionately told to the public by the officials in the government that Pakistan will bring on record to the ICJ a detailed dossier on Jadhav’s involvement in destabilizing Pakistan through terrorist activities and spying for India. Without prejudice to the truthfulness and accuracy of the said evidence, it is questionable whether it would be relevant to the ICJ for the decision of the case. In other words, would it be a sound legal move to present such material to the ICJ as an upfront defence of Pakistan? In my humble opinion, it is not. Let me put forth my reasons.

The ICJ in its Order on Provisional Measures dated 18th May 2017 has given its mind on the legal propositions to be addressed in the upcoming proceedings. The Court has noted that,

(a) the Vienna Convention on Consular Relations (VCCR) does not contain express provisions excluding from its scope persons suspected of espionage or terrorism, and

(b) with respect to the 2008 Indo-Pak Agreement on Consular Access, it is not required for the Court at the present stage of the proceedings to decide whether Article 73 of the VCCR permits a bilateral agreement to limit the rights contained in Article 36 of the VCCR.

This makes abundantly clear that it would be a futile exercise to submit all incriminating material against Jadhav to the ICJ as the core defense of Pakistan. Any other international forum may be relevant for presenting such material, but as far as ICJ and the issues involved in this case are concerned, the said material might not be of much value.

Before presenting any incriminating material against Jadhav, Pakistan has to establish before the ICJ that terrorism and espionage are legitimate exceptions to the VCCR and the rights contained therein. Since it is the first time that the ICJ is seized of a proposition under the VCCR where the convicted was charged with the offences of espionage and terrorism, it has to be seen in which direction the Court’s mind will incline. Would the Court read into the VCCR the exceptions argued by Pakistan? Would Pakistan be able to successfully plead a general exception of national security to all treaty commitments? Would the Court take into account the contemporary international legal order and the international obligation of all states to combat terrorism at all costs? Is there anything in customary international humanitarian law that curtails the rights of India or Jadhav under the VCCR? All of these questions need detailed deliberations by the ICJ and new jurisprudence by the highest international Court is on its way if the ICJ decides to delve into all these questions. If and only if the ICJ decides that terrorism and espionage are justified exceptions to the rights contained in the VCCR, the material against Jadhav would become relevant. In that eventuality, the factual dispute between Pakistan and India with respect to Jhadav’s conviction, as a spy and terrorist, will surface, which for Pakistan is another challenge to take care of.

Coming now to the second limb of the proposition viz. the effect of the 2008 Indo-Pak Agreement on Consular Access on the rights contained in the VCCR; the ICJ has noted that there is no express provision in the 2008 Agreement, which imposes a limitation on the application of the VCCR and more specifically, the rights contained in Article 36 of the same, and consequently the Court at the present stage of proceedings cannot decline to exercise jurisdiction.

The 2008 Agreement prescribes an exception of ‘political or security grounds’ to the consular access rights of both Pakistan and India thereunder. However, the ICJ would not have anything to do with the interpretation of the 2008 Agreement since its jurisdiction is limited to the interpretation and application of the VCCR only. The real question to be determined by the ICJ is whether or not the 2008 Agreement can subside the obligations of Pakistan under Article 36 of VCCR. The answer to this query lies in interpretation of Article 73 (Relationship between the Present Convention and other International Agreements) of the VCCR read with Article 30 (Application of Successive Treaties relating to the Same Subject Matter) and 41 (Agreement to Modify Multilateral Treaties between Certain of the Parties Only) of the Vienna Convention on Law of Treaties (VCLT), which provides rules of interpretation of multilateral and bilateral treaties. The aforementioned provisions will determine the effect, in fact the permissible effect, which the 2008 Agreement may have on the rights and obligations of Pakistan and India under Article 36 of the VCCR. The Court will take into account the express and implied limitations as well as the conduct of the parties since the coming into force of the 2008 Agreement to determine its effect and application to Jhadav’s case.

If Pakistan succeeds in establishing that the 2008 Agreement has modified its obligations under Article 36 of the VCCR, the ICJ will most probably decide the matter there and then, since it has no jurisdiction besides this point. However, if ICJ decides in the negative, undesired consequences would follow for Pakistan.

There is another aspect to be seen. If Pakistan pleads the above-mentioned arguments concurrently, it might have to face a counter-argument from the opposite side that it is self-contradictory to plead so. In other words, it might be argued that on one hand, Pakistan is accepting that the obligations under Article 36 of the VCCR exist but are enforceable subject to exceptions of terrorism and espionage, and on the other hand it is arguing that the obligations under Article 36 are non-existent and have been modified by 2008 Agreement. This might prove to be destructive for Pakistan.

Therefore, Pakistan needs to decide which argument to plead first. The ICJ’s decision in the negative to Pakistan’s submission on one tier of the argument may render the other tier ineffective and redundant. In my view, the strength of Pakistan’s case lies in the 2008 Agreement since it can still plead the exception regarding terrorism and espionage if ICJ declines to accept the former argument, but not vice versa.

The legal team tasked with Jhadav’s case must critically evaluate all possible legal justifications before flying memorials in the ICJ.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organisation with which he might be associated.

Daud Aziz Khokhar

The writer is a practising lawyer in Lahore and a graduate of University of Cambridge. He can be reached at khokhar_daud@live.com



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