Daily Times

International law has no uniform coercive force, it only has amoral force. Some critics have called international law nothing more than positive morality due to its lack of law enforcing institutions, the powerful can go scot-free while the weak are grilled. Even those who insist that international law is indeed true law, agree with critics and call it ‘soft law’.

When the United States convicted Angel Francisco Breard for rape and murder and sentenced him to death in 1992, the International Court of Justice (ICJ) ordered a stay of execution as he was not given consular access. However, the US hanged the convict, sending a message to the ICJ and to the world.

The ICJ without an enforcement mechanism against a military giant, went ahead only to declare that the United States was guilty of violating the Vienna Convention on Consular Access 1963 (VCCR) and the orders of the court. The Supreme Court of the United States declared that an order of the ICJ had no legal value in its jurisdiction unless Congress enacted it as law.

Just like the US, Pakistan too is a signatory to the VCCR. In April 2017, Indian national Khulbushan Yadav was convicted and sentenced to death by a Pakistani military court for terrorism and espionage. The next month India knocked on the doors of the ICJ because consular access was not granted to the convict. The ICJ stayed the execution and barred Pakistan from executing the convicted terrorist.

India always knew that it would be very weak on the merits of the case. Nevertheless, it urged the ICJ to declare the decision illegal violating international law and treaty rights

It had nothing to do with legal standing, it only had to do with power. Pakistan, which was already weakened by an ailing economy, terrorism and the FATF intimidation, could not face isolation at the global level, which would be a virtual certainty if the verdict was not respected.

Article 36 of the VCCR provides for consular services, correspondence, and legal services to individuals detained in another state. This, however, is not the law of Pakistan, as the act of Parliament through which the convention was incorporated under Pakistani law, the Diplomatic and Consular Privileges Act 1972, does not incorporate Article 36 into our domestic law like parts of the rest of the convention.

India always knew that it would be very weak on the merits of the case, nevertheless, it urged the ICJ to declare the decision illegal violating international law and treaty rights. India then asked the court to order provisional measures (stay order) because otherwise before the ICJ could rule on the merits of the case Pakistan could have executed the convicted terrorist.

This stay order could have been avoided, but Pakistan made a number of vacuous mistakes. It had the right to appoint an ad hoc judge yet it waived its right. It has been alleged that the foreign office did not take legal advice before initiating correspondence over the issue, this has not been denied by the foreign office. When the hearing took place, no senior official from the Attorney General’s department was present, only for the Attorney General to later boast that he would lead the case at the ICJ. Nonsensical and unprofessional heroism like this can cost us this case, despite our position as the stronger party.

Another colossal gaffe was the release of a videotaped confession of the convict. While the video tapes of Saulat Mirza, Uzair Baloch and Ajmal Pahari released for domestic consumption did their job in building a narrative supported by the security establishment, the international community was doubtful of the confession; the mandate of the VCCR is literally to ensure that detainees are not coerced into accepting criminal guilt. We played this move illogically.

Even though it is not a part of Pakistani law, Pakistan has still complied with Article 36(1) of the VCCR which has three parts. Under part one (sub-clause (a)) Pakistan complied by duly notifying India of the arrest and detention of Yadav. In the same way Pakistan complied with part two (sub-clause (b)) by providing India with the information on how Yadav was arrested from Balochistan and the treatment that he has received under detention. Pakistan does not has to comply with the third part (sub-clause (c)) relating to consular access because an exception is found within Article 36 itself which applies in this case. Any rights of the detainee under Article 36(1)(c) only have to be exercised in conformity with the domestic laws of the detaining state, as a result Pakistan does not need to provide consular access to the convicted Indian national.

The corpus juris of Pakistan contain comprehensive anti-terrorism laws due to its constant fight against terrorism. These laws, especially the Anti-Terrorism Act, 1997, Security of Pakistan Act, 2014 and the Pakistan Army Act 1952 are directly applicable to the case and therefore any ‘rights’ of the accused have to be balanced against the paramount considerations of Pakistan’s national security.

The ICJ has to take these considerations into account, exigent issues such as terrorism and espionage require the ICJ to adopt a purposive approach and get to the core of the object of the VCCR. Consular access cannot be forced unto a detaining state when the matter involves national security and terrorism, as the judges of the court have no expertise in such matters dropping the confidence in the court in countries combating terrorism.

In fact, Indian cooperation in this case has been absent, while Pakistan’s thirteen attempts at access to information held by India were refused every time. Furthermore, Iran is keeping mum on the Indian claim that the convict was kidnapped from Iran.

An explanation of the convict’s passport which has a Muslim name on it has also gone unexplained by India which argues that the convict is a retired Navy commander. Even though Pakistan was not required to grant any consular access, it facilitated a meeting between the convict and his mother and wife on humanitarian grounds to ensure fair treatment. Pakistan also stated that such a meeting can take place again, thereby terminating the role consular officers of India could have played.

While there are many instances where India has gone back on its words, Clause 6 of the Agreement on Consular Access signed between India and Pakistan in 2008 states that in cases of arrest, detention, or sentence made on political or security grounds, each side may examine the case on its merits.

The objective was simply to not give terrorists any leverage by either country as a result of consular access. Under international law, all treaties are equal and if there are conflicting treaties, the one enacted later in time would be given primacy. It is clear that even if the ICJ comes to the conclusion that the VCCR was applicable in this case, this treaty from 2008 would be the real legal panacea for this case.

When India loses this case at the ICJ, which with all certainty it would, its losses would not stop there. India has been a consistent opponent of internationalising bilateral issues, but has it just given Pakistan justification for such a course of action and shot itself in the foot?

The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law

Published in Daily Times, July 27^th 2018.