Anyone familiar with the ICJ’s jurisprudence on consular access combined with some basic understanding of international law would have seen this decision coming. Yet on Pakistani television screens we see shock and horror, followed by the all too familiar blame game: the legal team was not good enough; Pakistan did not send an ad hoc judge to the Court; the counsel did not take up all of his allocated time; Pakistan should not have engaged in the proceedings; and the long list of excuses for “losing” go on.
It seems we have become incapable of understanding the law objectively and instead use it project our own aspirations. In Jadhav’s case this was all the more striking as nationalist sentiment, not a dispassionate assessment of the law, was the primary driving factor behind the “expertise” on display, misleading the public on the applicable law and hence Pakistan’s chances, or lack thereof, of “winning”.
Some background on the law: contrary to what has been argued on our television screens and in newspaper columns, this case was not about ICJ’s compulsory jurisdiction under Article 36(2) of the ICJ statute, related to which Pakistan has submitted a number of reservations including national security grounds.
Instead, this was an Article 36(1) case, which is related to jurisdiction stemming from multilateral treaties. In this case the applicable treaty is the Vienna Convention on Consular Relations (VCCR), which guarantees the right to consular access to foreign detainees, and the Optional Protocol to the VCCR (to which both India and Pakistan are a party), which gives the ICJ jurisdiction to decide disputes. The VCCR does not create any exceptions for alleged or convicted spies and the right to consular notification and access provided under Article 36 of the Convention are applicable in all cases where foreign nationals are arrested or detained.
One of Pakistan's arguments before the ICJ was that the 2008 consular agreement between India and Pakistan overrides the obligations under the VCCR. The 2008 agreement provides that "in case of arrest, detention or sentence made on political security grounds, each side may examine the case on its merits." There are two problems here: first, the agreement sets out further safeguards for detainees and clarifies the procedure through which consular access would be requested and granted - it does not seek to supersede the CVVR; and second, even if it did, authoritative interpretations of the VCCR and the law related to treaty interpretation clarify that states cannot enter into agreements inconsistent with the treaty.
The Court will of course consider this and other questions in more detail as the case proceeds, which brings me to another reason why we should have seen this decision coming: ICJ's jurisprudence clearly shows the applicant does not have to conclusively establish the Court's jurisdiction or merits of the case for a request of provisional measures to be granted. All India had to do to get a stay order was make a prima facie case about jurisdiction, show that a right related to the treaty was relevant, and make a case for urgency requiring the Court to act promptly.
These arguments are very easy to make in death penalty cases - especially given the growing sentiment against capital punishment worldwide and the relationship between consular access and the right to a fair trial, which, for example, was articulated very powerfully by the Inter-American Court of Human Rights in 1999.
One hopes this case would encourage the Government to start taking its international commitments more seriously, and the scores of international law "experts" to read up.