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.
Sikander Ahmed Shah is former
legal adviser, Ministry of Foreign Affairs, and law faculty at Lums. Abid Rizvi is an expert on
international law.
No comments:
Post a Comment