Opinion: Is the Indian government over-promising on Kulbhushan Jadhav (perhaps in a cruel way)?

The Kulbhushan Jadhav case has thrust the International Court of Justice into an unlikely spotlight in the Indian (and Pakistani) media. On the Indian side, Thursday’s order, in which the ICJ asked Pakistan not to execute Jadhav until the case is disposed of, has been hailed as a great victory. What is missing is an acknowledgement that we are at the very beginning of what is likely to be a long process that few outside the ICJ fully understand. Now that the first bouts have been fought, it is worth looking at where this case is going, and to try and predict what outcomes can reasonably be expected. Briefly, the peculiarities of the court’s practice and jurisprudence suggest that India is likely to win its case, but that the process may take years and the court will not order Jadhav’s release. Indeed, this case, like so many other aspects of the India-Pakistan relationship, will likely only devolve into protracted diplomatic mud-slinging. If people truly wish Jadhav freedom, they will need to look elsewhere.

What just happened?

The International Court of Justice’s two orders – the president’s communication of May 15 requesting a stay of the execution and the court’s May 18 order – are aspects of provisional measures under Article 41 of the Statute of the court. Although the court is most often cited for its long and deliberative path to dispute resolution, it can act in haste in some circumstances. These provisional measures are comparable to preliminary injunctions or temporary restraining orders in national courts. Indeed, we have seen similar kinds of orders in US courts recently, temporarily stopping Donald Trump’s travel bans.

To get such an order, the complainant must show that the court has prima facie jurisdiction, that a dispute exists between the parties, that the request for provisional measures is aimed at preserving rights at issue in the dispute, and that there is a risk of irreparable harm if an order for provisional measures is not given. Such orders have the binding effect of a final judgment, as the International Court of Justice clarified in 2001 in the LaGrand judgment (interestingly, also a death penalty case). India proved its case on all of these grounds before the court this week and thus secured a preliminary measures order barring Pakistan from executing Jadhav before a full hearing can be held. This order was based on an alleged violation of the Vienna Convention on Consular Relations, which requires that governments give detained foreign nationals access to their home countries’ consular officials. Nothing more. Nothing less.

This is a preliminary order and there is no bar on the court reversing its findings on any or all points when it comes to give a final judgment. That is not unheard of and the court did state that some of its findings were only decided as of “this stage of the proceedings”. Indeed, you would hope that the court would be willing to reverse its preliminary decisions if it received new facts or arguments during the full hearing of the case. The confident assertions that the court has decided for India are thus premature. There is a long way to go yet in this case, from jurisdiction, to counter-claims, to merits hearings and decisions.

Jurisdiction issues

The first thing to note is that the fight over jurisdiction is far from over. Jurisdiction – literally, the capacity to speak the law – is the benchmark for determining whether a particular court is capable of deciding a particular dispute. The legitimacy of a judgment depends first of all on whether the court had jurisdiction; otherwise, it is no better than your nosy neighbour sitting in judgment over your disputes with your brother. This is particularly important in international law, where the baseline rule is that no dispute may be adjudged unless and until both parties have consented to the jurisdiction of the tribunal.

In the International Court of Justice, this imperative to not adjudicate without jurisdiction is satisfied through the preliminary objections procedure. It is almost certain that as soon as India submits its briefs in the case, Pakistan will file a preliminary objection to the case being brought to the court, citing essentially the same set of arguments it made in The Hague earlier this week. The full court, sitting 16 judges (including a Pakistan-appointed judge), will hear these arguments all over again and will at least theoretically make their decision on jurisdiction from scratch. Now, it is true that it would take some heroic legal acrobatics or substantially new facts to reverse the court’s decisions from Thursday, but the procedure itself could add months to the process, depending mostly on the level of hustle the two parties show. Throughout this time, Jadhav will sit in jail and the merits of India’s case will not be heard.

Possible counter-claims

The wholehearted endorsement of the International Court of Justice’s jurisdiction in Indian policy and media circles comes relatively soon after a decidedly more skeptical attitude in last year’s nuclear weapons cases, where India dismissed the court’s jurisdiction in a dispute brought by the Marshall Islands against all nuclear weapon owning states. India has one of the broadest reservations to the court’s compulsory jurisdiction on file, effectively excluding almost all cases that Pakistan (and most other nations) might bring against it. Indeed, the so-called Commonwealth exception – removing all cases between Commonwealth countries from the court’s compulsory jurisdiction – was very explicitly aimed at eliminating cases between South Asian neighbours. The present case is unusual in its focus on the Vienna Convention on Consular Relations of 1963, one of the few multilateral treaties with dispute resolution clauses that both India and Pakistan are parties to and that does not have such an exception.

This limited jurisdiction matters because of a not often discussed aspect of this case going forward: counter-claims. Article 80 of the ICJ Rules of Court allows respondent states (Pakistan, in this case) to bring claims that are “directly connected with the subject-matter” of the initial case. What could these look like? Well, given the basis Pakistan is presenting for Jadhav’s sentence, it is probable that they will raise India’s involvement in Balochistan and maybe even Kashmir. Indeed, Pakistan has already claimed that their lawyers will lay the entirety of the case against Jadhav before the International Court of Justice, which would presumably include allegations of Indian support for separatist movements in violation of international law.

This is exactly the kind of question that India does not want before an international tribunal and it will file objections to such claims. In this it will be helped by the Rules, which only allow counter-claims that come within the “jurisdiction of the court”. There is some debate about this provision, but it is most likely to be interpreted narrowly in this case. Thus, if Pakistan’s counter-claim was that India has similarly detained a Pakistani national without access to consular officers, that would fit within the same jurisdiction given by the Vienna Convention. Anything much beyond that is unlikely to fly, thanks to the Commonwealth exception.

Finally, merits

Only once all of these steps have taken place – preliminary objections, counter-claims, objections to counter-claims – will the Jadhav case proceed to the merits. If, as I suspect, Pakistan’s most explosive counter-claims are found to lack jurisdiction, the question before the court will be a narrow one, coming down to a relatively simple set of questions: Is Kulbhushan Jadhav an Indian national, was he detained by the Pakistani government, did they grant him access to consular officials on learning that he was a foreigner, and were Indian officials allowed to visit him? It appears that these are relatively uncontroversial issues in this case and India is likely to prevail.

What will it prevail on, though? The open and shut nature of this case demonstrates the stupidity of the initial actions by the Pakistani government. The only basis for jurisdiction before the court was Pakistan’s refusal to give Indian consular officials access to Jadhav – something that is incredibly routine in all countries around the world. Without that refusal, this case would have gone absolutely nowhere. Indeed, Pakistan could have granted Indian officials access for a brief meeting and conceivably gone ahead and sentenced Jadhav to death regardless of India’s subsequent protests. This also means that, were India to win this case after a years-long process, it would have won what is essentially a small procedural and moral victory. In its last round of consular access cases (the Avena cases against the US), the court held that the remedy for a breach was for the state to provide “review and reconsideration of the convictions and sentences” of the detained Mexican nationals. After allowing consular access and some very basic review, Pakistan would presumably be allowed to re-try Jadhav in the same courts, likely with the same judges and the same lawyers, and sentence him to the same punishment, all in accordance with the Vienna Convention. The Convention may buy Jadhav time – which is certainly not something to dismiss in such circumstances – but it will not buy him freedom.

By raising the hopes of the country and of Jadhav’s family that victory in The Hague might lead to his release, the Indian government is over-promising, perhaps in a cruel way. The Ministry of External Affairs has announced that it will bring up the insufficiency of the Jadhav trial and the human rights violations he allegedly suffered. Like Pakistan’s possible claims about Jadhav’s espionage in Balochistan, these claims are entirely irrelevant to the legal issue at hand. They will provide, however, a loud megaphone for the two countries to assail each other on the international stage. We should hope that someone in the government is making this grim reality clear to the Jadhav family.

Ananda V Burra is a historian and an international lawyer.