(by Cameron Miles and Surabhi Ranganathan)

Cameron Miles is a barrister of Gray’s Inn and a barrister and solicitor of the Supreme Court of Victoria and the High Court of Australia. He is a practicing public international lawyer and a member of 3 Verulam Buildings in London. He is the author of Provisional Measures before International Courts and Tribunals, published by Cambridge University Press in 2017.

Surabhi Ranganathan is a University Lecturer in the Faculty of Law and a Fellow of King’s College at the University of Cambridge.

On 8 May, India instituted proceedings at the International Court of Justice against Pakistan relating to the latter’s imprisonment and award of death penalty to Kulbhushan Jadhav, an Indian national. Pakistan claims it arrested Mr Jadhav on 3 March 2016, in Balochistan (a Pakistani province), where he was engaged in espionage and sabotage activities. A military court sentenced him to death on 10 April 2017. India alleges that Mr Jadhav was abducted from Iran, where he was engaged in business following retirement from the Indian Navy. India further claims that following his arrest and throughout his trial, sentencing and now imprisonment pending execution of sentence, it has not been allowed consular access to Mr Jadhav.

India’s application asks the Court to declare that the sentence imposed by Pakistan is ‘in brazen defiance’ of Article 36 of the Vienna Convention on Consular Relations (VCCR), and of the ‘elementary human rights of the accused’ (para. 60). It asks the Court to direct Pakistan to annul the decision; or, if, Pakistan is unable to do so, to declare the decision illegal, and direct Pakistan to release Mr Jadhav immediately (Id.). India has also requested that the Court indicate provisional measures preventing Pakistan from executing him pending resolution of the dispute.

Oral hearings on provisional measures are listed to begin on 15 May. Meanwhile, President Abraham has issued an urgent communication to Pakistan, pursuant to his powers under Article 74(4) of the 1978 Rules of the Court. This provides:

Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.

In this post, we offer a brief account of several issues. We first note a few points in relation to India’s claims as to the Court’s jurisdiction and the merits of the claim proper. We then discuss the scope and effects of the President’s Article 74(4) communication. Our attention was caught by the fact that this communication was reported in the Indian media as a ‘stay’ on Mr Jadhav’s execution, with India’s Foreign Minister even tweeting that she had told Mr Jadhav’s mother ‘about the order of President, ICJ […]’. This squarely raises the question: can the Article 74(4) communication be read as a mandatory ‘order’ in the same way as provisional measures ordered under Article 41 of the Court’s Statute? And, if not, could a state in any way be found legally accountable in for its breach?

India’s Jurisdictional and Merits Claims

India’s application is founded on Article 36(1) of the ICJ Statute, read with Article 1 of the Optional Protocol to the VCCR. As the LaGrand case has previously confirmed, this is an appropriate jurisdictional basis to test breaches of VCCR Article 36 provisions on consular access.

Pakistan may claim that the VCCR is irrelevant to the present case, because the relations between the parties are governed by a 2008 bilateral agreement on consular access (Application, Annex 10). There is more to be said about this agreement, but its text does not, prima facie, indicate an intention to contract out of the VCCR. In any event, the application of the VCCR in light of this agreement is itself an issue that the Court can adjudicate on the present basis of jurisdiction.

Moreover, India’s claim that VCCR Art 36 has been violated appears sound: at least on the facts as alleged. Pakistan’s stance that India’s requests for consular access ‘shall be considered in light of’ its assistance in the investigation of Mr Jadhav (Application, Annex 3), does not find support in the VCCR; Article 36 does not permit states to impose such conditions on consular access.

There is, however, some doubt as to the ultimate relief that the Court can provide. The jurisdictional basis invoked limits the Court to findings vis-à-vis the VCCR. However, India further claims that Pakistan has violated Mr Jadhav’s right to a fair trial under the International Covenant for Civil and Political Rights—the Court does not appear to have jurisdiction vis-à-vis this separate treaty. It is on the cumulative breach of both treaties that India bases its request that the Court declare the death sentence illegal and void. Can the Court grant this relief, if it cannot adjudicate whether Mr Jadhav was given a fair trial?

Assistance on this point may be found in LaGrand and Avena, cases brought under the VCCR and involving the imposition of the death penalty by the United States upon foreign nationals. In LaGrand, the Court found that ‘in cases where the individuals concerned have been […] sentenced to severe penalties’:

[I]t would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States. (para. 125)

In Avena, it emphasized that the review and reconsideration must be effective, examine conviction and sentence, and guarantee that the possible prejudice caused by violation of the VCCR will be fully taken into account. A clemency procedure would not suffice (paras. 138, 143). It is probable that a similar approach will be taken in the present case.

The Article 74(4) Communication

As regards President Abraham’s communication to Pakistan, the perception that it amounts to an ‘order’ is interesting, if inaccurate, and made us think more carefully about the scope and effects of such communications. We note the following.

First, and foremost, an Article 74(4) communication should not be confused with provisional measures ordered under Article 41 of the Statute. The Article 74(4) procedure is separate, taken by the President alone prior to any sitting of the Court, and—as Cameron has previously noted—is widely seen not to be binding. Pakistan could arguably go ahead and execute the sentence without anything more than moral censure; though that would obviously be without prejudice to the ultimate question regarding breach of VCCR Article 36.

That said, ICSID tribunals have found provisional ‘holding requests’—conceptually similar, some might think, to communications under Article 74(4)—to be as binding as provisional measures ordered under Article 47 of the ICSID Convention. But such requests are made by the tribunal as a whole and are not the subject of express mention in the ICSID Rules—they may thus be regarded as articulations of Article 47 proper, even if issued proprio motu by the Tribunal.

All the same, to defy an Article 74(4) request in a truly irreversible way would certainly be to breach the general principle of non-escalation and good faith in dispute settlement identified by the PCIJ in the Electricity Company case of 1939. There, the Court referred to:

[T]he principle universally accepted by international tribunals […] to the effect that the parties to a case must abstain from any of the measures capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate and extend the dispute.

This principle underpins the Article 41 provisional measures issued by the Court, but is a freestanding rule of international law.

But, it is not clear that the Court can adjudicate a breach of this principle under the limited mandate of the VCCR Optional Protocol. Given that an Article 74(4) request is non-binding in and of itself, the Court would need to look to a source external to incidental jurisdiction to determine a breach of international law. Of course, the Court might fall back upon its inherent power to regulate its own jurisdiction, but the parameters of that jurisdiction have always been a little unclear.

There may be some temptation to read Article 74(4) as producing some degree of binding effect, such that non-compliance would attract legal as well as moral censure. Perhaps, one might think, this would represent a natural step forward from the LaGrand finding that provisional measures were binding—a point that had been disputed for some 80 years.

However, there are good reasons not to succumb to that temptation, principally that Article 74(4) vests discretion in the President, and not the Court. Were such communications taken to be binding, we would expect to see a repeat of the trend that has followed vis-à-vis provisional measures after LaGrand. There has been a noticeable tightening of the restrictions on the award of such measures, with the Court now required to satisfy itself that: is has prima facie jurisdiction, there is linkage between the rights to be protected and those judged on the merits, the claim on merits is plausible, and irreparable prejudice will result from a failure to indicate measures. To require the President, acting alone, to similarly satisfy himself on these points, would be to add a rather cumbersome prelude to what is above all a ‘rapid reaction’ device.

A Historical Nugget

Interestingly, a President of the World Court, sitting alone, has ordered binding interim relief in the past. In their first (1922) iteration, the Rules of the PCIJ provided in Article 57 that:

When the Court is not sitting, any measures for the preservation in the meantime of the respective rights of the parties shall be indicated by the President. Any refusal by the parties to conform to the suggestions of the Court or of the President, with regard to such measures, will be placed on the record.

Unlike Article 74(4) of the current Rules, Article 57 did not give the President a separate procedural power—rather, it placed the full authority of Article 41 of the Statute in the President’s hands. The provision was drafted in the days before affordable commercial air travel, wherein a large number of the Court’s members could be expected to take days, even weeks, to return to The Hague if the PCIJ was not in session. The President was expected to ‘man’ the fort. Thus, President Max Huber ordered interim relief in the Sino-Belgium Treaty case (the first ever decision under Article 41), after the Belgian application landed on the Court’s doorstep in the winter of 1926–1927.

Nevertheless, that Article 57 power does not provide precedent for the present case. Aside from the fact that it was merely an articulation of Article 41 of the Statute, its raison has vanished. In truly urgent cases, the members of the Court can be expected to return promptly to the Peace Palace. Indeed, advances in air travel—along with concerns as to the political burden that the giving of interim relief under such conditions imposed on the President—led to Article 57 being drastically revised in 1931, and this power was removed.

To Conclude

Coming back to the present, we fully expect the Court will speedily decide on provisional measures. Based on past precedents such as LaGrand and Aevena, the order may well be in India’s favour. We close by expressing the hope that, in the interim, the effects of a Presidential communication will not be tested by way of their disregard.