What did India win (& lose) in the Jadhav case
India’s case against Pak at the ICJ was based on the Vienna Convention on Consular Relations of 1963.
The continuing saga of Kulbhushan Jadhav has reached a conclusion of sorts with Wednesday’s judgment from the International Court of Justice (ICJ). Indian officials, experts and Twitterati are united in hailing the decision as a great victory for India.
But a closer look at the judgment reveals a more complicated picture. India’s case against Pakistan at the ICJ was based on the Vienna Convention on Consular Relations of 1963 (Vienna Convention). Upon arrest and before trial, Jadhav had the right to communicate with the Indian consulate in Pakistan and to request legal assistance. And the Indian consulate had a parallel right to be informed of Jadhav’s arrest and to communicate with him. India’s case at the ICJ was that Pakistan had breached these obligations under the Vienna Convention.
The ICJ agreed with India. It upheld its jurisdiction over the dispute, dismissed Pakistan’s objections and counter-allegations, and found that Pakistan had breached its obligations under the Vienna Convention.
Most importantly, the ICJ directed Pakistan to review Jadhav’s sentence and conviction and extended the stay on Jadhav’s impending execution. Thus, commentators are not entirely wrong in their proclamations of victory – a majority of the issues at stake were decided in favour of India. This decision was not unexpected. The ICJ has previously been confronted with very similar facts and legal issues in two cases--the LaGrand case between Germany and the US and the Avena case between Mexico and the US-- and has reached very similar conclusion.
The problem is that this is a largely pyrrhic victory. India’s end goal was Jadhav’s release. Or, failing that, annulment of the decision of the military court that had convicted Jadhav, quashing of the confession which the conviction was based on, and retrial in a civilian court with greater transparency and procedural safeguards. In this, India was unsuccessful.
The rights that were at the heart of India’s case were the procedural rights of consular access and notification under the Vienna Convention. The appropriate remedy for breaches of these rights, as correctly noted by the ICJ, is the provision of those rights and the reversal of any injustice occasioned by their denial. This is consistent with its decisions in LaGrand and Avena, and this is what the ICJ provided when it directed Pakistan to “provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention.”
The problem with this is that Pakistan retains the discretion to decide how to review Jadhav’s conviction and to secure his Vienna Convention rights. In theory, Pakistan could provide consular access, repeat the trial procedure, reach the same result, and then argue that it had fulfilled its obligations under the judgment.
In that situation, India’s options will be limited. The only legal one would be to go back to the ICJ and argue that the review did not meet the standards mandated by it. One cannot predict how the ICJ will respond in that situation, but the scope of its scrutiny will inevitably be limited.
Mexico tried this strategy in the Avena case and met with limited success. The problem is that, in this case, the jurisdiction of the ICJ is restricted to assessing compliance with consular rights under the Vienna Convention.
It cannot undertake a broader inquiry into the fairness of the trial.
India tried to make the quality of the Pakistani legal system an issue in the Jadhav case, but met with limited success (as did Mexico when it tried the same strategy in Avena).
Consequently, the ICJ decision is a decidedly mixed bag. This is best reflected, perhaps, in the fact that Pakistan has also welcomed the judgment as vindication of its position.
In closing, however, it is important to acknowledge one very positive aspect of the judgment – the successful strategic invocation of the jurisdiction of the ICJ by India. The Indian government must be lauded for its decision to involve the ICJ in this case. Pakistan’s efforts to sensationalise its arrest and conviction of Jadhav as an Indian spy and terrorist would undoubtedly have harmed Indian interests. The vindication of India’s case by the ICJ brings into question the veracity of Pakistan’s claims as to Jadhav’s antecedents.
Taking the case to the ICJ was a clever and effective way to undermine Pakistan’s narrative. The Indian government has frequently been criticised for its shortcomings in relation to the development and strategic invocation of public international law. This decision marks a welcome departure from that trend.
The writer specialises in public international