Maritime Laws and Regulatory Arbitrage

Case before the International Court of Justice: Case Note

Introduction

Article 36 of the Vienna Convention on Consular Relations states that “consular officers shall be free to communicate with nationals of the sending State and to have access to them.”[footnoteRef:2] The arrest, trial, and sentencing of Indian national Mr. Kulbhushan Sudhir Jadhav by Pakistan authorities was a violation of the Convention, as judged by the International Court of Justice in Jadhav (India v. Pakistan).[footnoteRef:3] India made three arguments—first, that Pakistan failed to inform it without delay of Jadhav’s arrest; second, that Jadhav had not been informed of his rights under Article 36 of the Convention; third, that India’s consular officers had been denied access to Jadhav while he was under arrest and therefore had been unable to assist in his legal defense.[footnoteRef:4] Pakistan had accused Jadhav of espionage and had sentenced him to be executed. India not only sought a stay of execution but also the return and safe passage of Jadhav. While the Court ruled that India’s three claims were valid and that Pakistan had violated the Convention on each of the three points, the Court ruled that India’s request “for the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, and its further request for the Court to direct Pakistan to take steps to annul the decision of the military court, release Mr. Jadhav and facilitate his safe passage to India” could not be upheld.[footnoteRef:5] Instead, the Court ruled that Pakistan was obligated to review and reconsider the conviction of Jadhav in light of its violations of the Convention’s Article 36. Curently, Jadhav remains in prison in Pakistan. The case is important to India and the global south because of the fact that it pertains to the rights of foreign nationals and their due process. If due process in accordance with the Vienna Convention on Consular Relations is denied them it risks the breakdown and deterioration of diplomatic relations. At the same time, the accusation of espionage is a serious charge that adds another dimension to the case. In the United Nations Charter (UN Charter), espionage is not explicitly addressed and remains a contested issue in international law.[footnoteRef:6] [2: Vienna Convention on Consular Relations, Art 36, 1963.] [3: Jadhav (India v. Pakistan) https://www.icj-cij.org/en/case/168] [4: Jadhav (India v. Pakistan) https://www.icj-cij.org/en/case/168] [5: Jadhav (India v. Pakistan) https://www.icj-cij.org/en/case/168] [6: Demarest 1996, 339; Chesterman 2006, 1072]

Background and Summary of the Case

Jadhav was arrested by Pakistan officials on 3 March 2016. On 25 March 2016, Pakistan’s Foreign Secretary raised the matter with the Indian High Commissioner in Islamabad, at which point India sought consular access to Jadhav. Between 30 March 2016 and 19 April 2017, fourteen requests for access were sent from India to Pakistan, and no reply was received. Pakistan had full knowledge that Jadhav was a foreign national and wanted India’s assistance—but India protested that “consular access to Mr. Jadhav would be an essential prerequisite in order to verify the facts and understand the circumstances of his presence in Pakistan.”[footnoteRef:7] India maintained that by denying access to Jadhav and “in conducting the trial without informing the accused of his rights under the Vienna Convention and granting consular access to India, Pakistan has conducted itself in a manner that constitutes an egregious violation of the Vienna Convention.”[footnoteRef:8] The International Court of Justice ruled in favor of these claims but denied India its petition for the safe passage return of Jadhav. The Court ruled that Pakistan was obligated to review the case in light of these transgressions of the Vienna Convention, but beyond that no further ruling was given. Pakistan has maintained that Jadhav was engaged in espionage against the state and therefore should be tried by a military tribunal. [7: Application Instituting Proceedings, 8. https://www.icj-cij.org/public/files/case-related/168/168-20170508-APP-01-00-EN.pdf] [8: Application Instituting Proceedings, 8. https://www.icj-cij.org/public/files/case-related/168/168-20170508-APP-01-00-EN.pdf]

Importance of the Case to India and the Global South

The importance of the case to India is obviously one of respect for consular conventions and the Vienna Convention. By transgressing the Convention, Pakistan placed its own concerns for prosecuting one accused of espionage above respect for the international rule of law. The controversy is rooted in the question of espionage vs. the rights of foreign national. India prefers to emphasize the rights of the foreign national and of the state in having consular access to the accused. Pakistan has shown itself indifferent to these concerns as it is more focused on the issue of espionage and its need to prosecute for such an offense. For India, and the wider global south, it is a matter of deference and respect: should India be given no access to Jadhav to prepare a legal defense, it shows that the international rule of law as agreed upon in the Vienna Convention, has no force and cannot be relied upon. Yet adherence to such a rule is necessary for good relations between states, particularly in the global south where international peace and order is vital to the peace. There is a long history of contention between Pakistan and India in particular, and the case of Jadhav has threatened to worsen relations between the two states.

At the same time, it is clear that the matter of espionage deserves some attention, for it remains a controversial issue in international law. Article 2(1) and Article 2(4) of the UN Charter (1945) discuss the prohibition of the use of force, as well as the principle of non-intervention and state sovereignty. Analyzed in this light, the issue thus becomes one of whether India attempted to violate Pakistan’s rights under Article 2(1) and 2(4) of the UN Charter before Pakistan violated India’s rights under the Vienna Convention. Pakistan’s indifference to India’s claims under the Vienna Convention suggests that it believes India first violated Pakistan’s rights under the UN Charter. Baker argues, however, that international law is silent on the matter of espionage, neither prohibiting it nor permitting it.[footnoteRef:9] But Pakistan, considering espionage as an act of subterfuge against the state, viewed itself as justified in trying and sentencing to death by execution the defendant. Yoo and Sulmasy have contended that there is no need for espionage to be regulated by international law.[footnoteRef:10] [9: Christopher D. Baker “Tolerance of International Espionage: A Functional Approach.” American University International Law Review 19 (2003): 1091–1113.] [10: John Yoo and Glenn Sulmasy “Counterintuitive: Intelligence Operations and International Law.” Michigan Journal of International Law 28 (2007): 625–638.]

Jurisdiction

Seeing the fact that espionage represents such an unclear area within the realm of international law it is understandable that India approached the case of Jadhav from the standpoint of the Vienna Convention. At the same time, it is understandable that Pakistan appears to have approached it from the standpoint of the UN Charter. The Vienna Convention offers legal rights to the consular regarding due process. The UN Charter offers legal rights to the state that believes it is under attack from a foreign state. The problem is how to reconcile the two scenarios. For the global south, security and espionage matters go hand in hand, just as they do in the global north. These matters are typically rectified after years of negotiations between the states, if ever. However, an international legal framework for handling cases of espionage, as Jadhav’s clearly is according to Pakistan, should be developed to assist in expediting these matters. Without a clear area of jurisdiction, the two states involved in the matter have no real recourse for resolving their apparent issues in a mutually satisfactory manner. As Prochko notes, espionage has not been addressed by international law in the post-war era, “thereby remaining only explicitly recognized as an art of war under the law.”[footnoteRef:11] Spies who are arrested do not have the same legal status as scouts in wartime, moreover; but the Geneva Convention of 1947 gives the practice of espionage some legitimacy without declaring outright its legality. [11: Veronika Prochko, “The International Legal View of Espionage,” E-International Relations, 2018. https://www.e-ir.info/2018/03/30/the-international-legal-view-of-espionage/]

The General Assembly Resolution 3314 (1974) gives some clarity on the practice of espionage,[footnoteRef:12] and General Assembly Resolution 2625 (1970) states: “No State or Group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic, and cultural elements, are in violation of international law.”[footnoteRef:13] Debate about the extent to which sovereignty is violated through espionage during peace time still continues nonetheless. It is this debate that creates risk for states in the global south as the practice adopted so freely in the global north sets a precedent for similar actions in the global south—but the problem for the global south is that its role in globalism and the globalized network is less conducive to constructive dialogue that would allow for expedited resolutions. [12: Definition of Aggression GA Res. 3314 (XXIX), UN GAOR 29th Sess., Supp. 31, U.N. Doc. A/9890 (1974) 88.] [13: Declarations on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. GA Res. 2625, UN GAOR, 25th Sess., Supp. 28, U.N. Doc. A/8082 (1970) 121.]

Conclusion

The violation of India’s rights as a sovereign nation by Pakistan’s refusal to permit consular access to the accused is preceded only, according to Pakistan, by India’s violation of Pakistan’s sovereign rights via espionage. The problem cannot be resolved without further clarification on whether espionage is a permissible practice in international law during peacetime and if not what the legal parameters for dealing with accusations of espionage should be. Pakistan’s position is that it is a matter to be handled in-house through Pakistan’s own court system. India has appealed to the International Court of Justice, which has acknowledged the validity of India’s claims while at the same time refusing to order Pakistan to return the accused to India. Therefore, the Court acknowledges that Pakistan to some degree is within its rights to conduct the trial of the accused as it sees fit, while simultaneously ordering Pakistan to review the trial and sentencing of Jadhav in light of violations of the Convention. The Court itself appears unable to adequately resolve the matter due to the nature of the issue. For this reason, the international community should address the matter of espionage and accusations of espionage in peacetime with greater care. For India, the matter is of some import, since the accused has been convicted of espionage in Pakistan—but India without recourse to the law on matters of espionage has had to rely on the Convention to gain support for its rights. This reliance has had little effect on the matter other than to secure acknowledgment that Pakistan did violate the Convention’s Articles. Underlying the Court ruling is the sense that Pakistan is nonetheless protected by its right to sovereignty under the UN Charter to address matters of espionage as it sees fit. This leaves the two countries at an impasse and lays the groundwork for a deterioration of diplomatic relations in the future. The global south cannot risk such deterioration considering the fragile nature of its relations and the threat of instability that such deterioration brings.