India and Pakistan: Beyond the Cricket Field
The Jadhav case
The Jadhav case between India and Pakistan, recently-entered on the docket of the International Court of Justice following India’s application, raises an interesting treaty conflict issue. The case concerns an Indian national—allegedly a spy; arrested by Pakistan—allegedly in its province of Balochistan; sentenced to death by a Pakistani military court. India asserts that Pakistan has never allowed it consular access to Mr Jadhav, and has thus violated its obligations under the 1963 Vienna Convention on Consular Relations (VCCR). A Protocol to the Convention enables recourse to the Court to settle this type of dispute.
The treaty conflict issue is this: Pakistan claims that the issue of consular access is governed by a bilateral agreement signed concluded by the two states in 2008; the VCCR’s provisions are limited or excluded by this later treaty. What the Court will make of this claim remains to be seen, but it will have to overcome several hurdles in order to succeed. Firstly, the bilateral agreement, not made public by either state until this case, was not registered with the UN Secretariat. Article 102 of the UN Charter provides that unregistered agreements may not be invoked ‘before any organ of the United Nations’, including the Court. The provision was intended to discourage ‘secret treaties’ (of which the Additional Protocol to the 1939 Molotov-Ribbentrop Pact is a famous example).
Secondly, even if this first hurdle is overcome (for practice on invocation of unregistered treaties, see Robert Kolb, p. 54ff), it is not clear that the 2008 Agreement provides what Pakistan claims—the discretion not to grant consular access to individuals arrested and tried on political or security grounds. The relevant clause, (vi), (for text see Annex 10) is vaguely worded, perhaps intentionally so. Read in context of the agreement as a whole—the accepted mode of interpreting treaties—it seems unlikely that it intends to reduce the protection available to any one category of individuals, and even less likely that it contemplates removing such protection altogether. The Court has previously confirmed that for detained individuals, consular access is a matter of right (para. 77); it is unlikely to countenance a reading that will reduce such access to the discretion of a foreign state.
Thirdly, it is important to remember that treaties are not read in isolation. It matters are both states also parties to the VCCR. Even if the 2008 agreement is regarded as the lex posterior on the matter, the Court is likely to interpret it in harmony with the VCCR, rather than as displacing that treaty—especially where its text admits of that possibility; which, given the vague wording of clause (vi), it does. Thus it also matters that the VCCR does not reduce protection to individuals on political or security grounds. Furthermore, the Court may consider whether the 2008 Agreement should be properly regarded as an ‘inter-se’ agreement between two parties to the multilateral VCCR; this classification would make it all the more necessary for the 2008 Agreement to be in line with the VCCR. This classification may find support in the preamble of the 2008 Agreement, speaking of the parties’ desire of ‘furthering the objective of human treatment of nationals of either country … detained … in the other’ [emphasis mine]. What is the agreement ‘furthering’, if not the consular access obligations previously agreed between the two states?
Strategically Created Treaty Conflicts (and the Politics of International Law)
Bilateral treaties thus do not so easily displace multilateral ones. That, in effect, is also one of the conclusions of my book, Strategically Created Treaty Conflicts and the Politics of International Law, which deals with more complicated cases of treaty conflict than the one discussed here. My book explores bilateral and ‘minilateral’ agreements which — like the present case – may have been concluded by states to exclude or modify their obligations under multilateral treaties. However, its focus is on treaty conflicts with distinctive features.
Firstly, the multilateral treaties in question must establish multilateral rights and obligations (unlike the VCCR, whose obligations are bilateral in structure though its form is multilateral) addressing common concerns. Thus the book studies the Nuclear Non-Proliferation Treaty (NPT), the Rome Statute of the International Criminal Court, and the UN Convention on the Law of the Sea. Bilateral or mini-lateral agreements concluded to modify or exclude obligations under these treaties threaten the regimes underpinned by each of these treaties: respectively, for nuclear governance, international criminal justice, and equitable sharing of the resources of the deep seabed—a global commons.
Secondly, those smaller treaties include (at least) one state not party to the multilateral treaty; i.e. the parties are not simply a subset of the parties to the larger treaty. This complicates the legal situation. For, it brings the pacta tertiis rule into play, which prevents creative interpretation of the smaller treaty to harmonize it with the multilateral one. As discussed above, such interpretation is permissible for treaties where there is an identity of parties, a fortiori where one treaty is an inter-se agreement; this is because of the good faith presumption that states did not intend to undermine either treaty. The presumption does not hold for a state not party to one of the treaties.
Treaty conflicts involving non-identical parties are legally intractable; politically, they may present a challenge to the order established by the multilateral treaty. What, then, can international law—and international lawyers—do? My book explains how these conflicts have been understood as a ‘limit case’ for thinking about the concept and function of international law. While they have generated alarms that international law does not indicate a legal system, properly speaking; they have also provided illumination precisely of the opposite. In fact, international legal claims and forms have been material both to the making and unmaking (or ‘management’) of the treaty conflicts. The law is instrumentalized, certainly, but it shapes even as it is shaped.
Nuclear Disarmament – and some cricket
The tensions that underlay the very creation – strategically – of the treaty conflicts also may ebb with time; arguably that is true of all three conflicts discussed in the book. Yet, in none of these cases have the tensions entirely disappeared. As I wrote for this blog a few months ago, the debate over sharing of seabed resources has reignited. As for nuclear issues, another recent ICJ case coincidentally involving India and Pakistan revealed that the attenuation of the disarmament principle—reflected, as the book discusses, in the conclusion of the India-USA agreement in conflict with the NPT—persists. In that case, the Marshall Islands brought applications against India, Pakistan and the UK claiming they had failed to fulfil their disarmament obligations. The Court was given an opportunity to re-endorse its previous reading of the NPT disarmament obligations as those of result, not just conduct, and specify when they may be breached and with what consequences. However, it declined jurisdiction, for no very good reason, as others and I have discussed elsewhere. India, a non-party to the NPT, took its usual position of being a long-time supporter of disarmament (despite its actions in the obvious direction); the book may interest some readers for its tracing of India’s particularly nuanced (some might say equivocal) position on this issue.
To conclude with a story from the cricket field—or just beyond. The Jadhav case and other incidents have produced another period of heightened tension between the two states; never on particularly good terms at any time. (In the Marshall Islands case, though notionally on the ‘same side’, the two states did not share pleadings and documents with each other; while India and the UK did). In this context, however, a short video taken at the Edgbaston stadium during the 2017 Champions Trophy match between India and Pakistan provided a cheering reminder of cricket’s occasionally unifying power. The video captures a joyous moment in which fans of both teams, overcoming their supposed mutual hostility as also the genuine frustrations of rain-delays, rediscover that the dance moves that typify the one state are also characteristic of the other.
(It is also a moment that exceeds the bilateral; these are, after all, fans dancing in the UK, many of them of the UK, on the day after the terrorist attacks in London; giving, perhaps deliberate, lie to accounts of a nation ‘reeling’ from terror, recalling other resolutely defiant acts of recapturing the ordinary from the spectacles of violence that try to occlude it, here—and, we must not forget—elsewhere.)
Read more on this topic in Surabhi Ranganathan’s highly acclaimed work, Strategically Created Treaty Conflicts and the Politics of International Law.