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Weekly Note by Akshita Jha

India’s Representation on the Commission on the Limits of Continental Shelf

Recently, India has taken a decision not to nominate a candidate to the UN Commission on the Limits of the Continental Shelf (CLCS). CLCS is a body consisting of geological and hydrographical experts, and has the mandate to determine the limits of continental shelves of countries that are signatories to the United Nations Convention on the Law of the Sea (UNCLOS). The decision of CLCS is based on geological data submitted by member-states and is taken by a 21-member panel, including the representatives of the states involved in a dispute. Having a representative on this panel ensures that the interests of the concerned states are conveyed to the board.

There are three major reasons why this representation is significant for the country.

First, because of the long coastline of the country, the determination of its continental shelf and seabed will severely affect the boundaries of coastal Indian states, and consequently their jurisdiction. Since the states do not have the power of intervention directly, it is the duty of the Union Government to represent their cumulative interests on this international platform. Second, India has many on-going maritime disputes with other countries, the fate of which will depend on the limits of continental shelf determined by CLCS. Thus, India needs to be represented on the board in order to witness the deliberations. Third, India is a signatory to the UNCLOS and has submitted to the jurisdiction of CLCS, thus, the decision taken by it will be binding on India, without any easy appeal.

In the past, India played a constructive role in deliberations leading to the adoption of the UNCLOS in 1982 and even ratified the Convention in 1995. In case of UNCLOS disputes, India has preferred settlements via arbitration before the Permanent Court of Arbitration (PCA) in all the major sea disputes till date. In addition to that, since the ratification of the UNCLOS, India has always nominated a person on the 21-member scientific panel of the CLCS. Thus, if India fails to nominate a member this year, it will be an aberration to the 22 year-old practice.

Unidentified officials, have been quoted by news organisations, stating that the reason for this commission is the election for a seat on the International Tribunal for the Law of the Sea (ITLOS). The nomination will take place around the same time as that of the CLCS. It has been reported that India would like to nominate Neeru Chadha, a former head of the legal and treaties division of the Ministry of External Affairs to the ITLOS. As a result, the government has chosen to avoid expending political capital to lobby for the CLCS in favour of the ITLOS. If this is true, the reasoning is flawed because such political considerations should be ousted while deciding issues that can have legal ramifications on international relations. However, India can still try to nominate its candidate by citing unavoidable circumstances as there is a fortnight to go before the term of the present Commission ends (June 15, 2017). Now, it remains to be seen whether the authorities take any appropriate action in this time.
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WEEKLY NOTE by Adya Garg

ANALYSING THE CASE CONCERING VCCR AT THE ICJ, IN THE MATTER OF KULBHUSHAN JADHAV DEATH PENALTY

Marking a rare exception from approaching the International Court of Justice (‘ICJ’) regarding any India-Pakistan dispute, on May 08, 2017, India filed an application against Pakistan at the ICJ alleging violations of the Vienna Convention on the Consular Relations, 1963 (‘VCCR’) in the matter concerning the death sentence awarded to Indian National Mr. Kulbhushan Sudhir Jadhav by a Pakistani Military Tribunal. India also sought provisional measures as a matter of urgency, to stop the impeding execution.
India alleged that Pakistan denied consular access, despite multiple requests, leading to violations of Article 36, Paragraph 1, sub-articles (a), (b) and (c) of the VCCR. Article 36 of the VCCR governs communication and contact with nationals of the sending state. As per Paragraph 1(a) of Article 36, consular officers can have free access to the nationals of their state; 1(b): the national can request that information of his arrest be delivered to consular post of the sending state; and 1(c): consular officers can visit the concerned national in custody, detention etc. and communication with him. The facts of the case, as contended by India, stated that it was informed on March 25, 2016 about the arrest of an Indian National. India’s request for consular access in this regard, extended sixteen times, was returned without response. Later, on March 21, 2017, Pakistan agreed to comply with this request only if India cooperated in the investigation for the case. Meanwhile, India learnt from a press release that Jadhav had been given death sentence by a Military Tribunal. Hence, an application was filed on behalf of India for violations of sub-paragraphs (a) and (c), as well as its citizen for violation of sub-paragraph (b), which led to denial of consular rights to both India and Kulbhushan Jadhav.

This is not the first time that a case concerning Article 36 of the VCCR has been brought before the ICJ in relation to a matter of death penalty. ICJ has ruled upon similar issues in the cases of LaGrand, Avena and Paraguay, all three against the USA. Hence, the arguments of both the parties also revolved around the judgments meted out in these cases. India sought that the death sentence be declared illegal and a restraint on Pakistan to give effect to the sentence or the conviction in any manner. Since, India brought this case without Pakistan’s consensus; it relied upon Article 36 of the ICJ Statute, which confers jurisdiction on ICJ in matters relating to treaties and conventions, and Article 1 on the Optional Protocol to VCCR concerning compulsory settlement of disputes pertaining to interpretation and application of the VCCR. Article 36(2) of the ICJ Statute confers compulsory jurisdiction on the ICJ subject to declarations. However, India argued that it sought jurisdiction under Paragraph 1, and hence any declaration under paragraph 2 would not be applicable. This has been affirmed in Nicaragua v Honduras, the case of LaGrand and Avena. In opposition, Pakistan argued that the Court should dismiss India’s application because of three reasons: firstly, absence of urgency; second, unavailability of the relief sought; and third, absence of jurisdiction arising out of the VCCR. With respect to the first, Pakistan argued that India had not been able to provide any evidence of the immediate urgency of the matter since Jadhav would be executed, most probably, after August 1. Secondly, the Court could not set aside the conviction as the issue involved were consular rights, and not the correctness of the death penalty. Thirdly, the Court did not have jurisdiction because of an existing bilateral agreement between India and Pakistan, brought into force in 2008.

The interim order was announced by the Court on May 18, 2017. Starting with the issue of jurisdiction, the Court ruled that differences existed between India and Pakistan on matters of consular assistance to Jadhav, which fell within the scope of the VCCR. Hence, the Court accepted jurisdiction on account of Article I of the Optional Protocol to the VCCR and held that the 2008 Bilateral Agreement did not affect the jurisdiction of the Court. With respect to the issue of urgency, the Court decided the issue in favour of India, holding that there existed a risk of execution, and a corollary risk of irreparable prejudice to the rights claimed by India. As opposed to Pakistan’s contention, the Court held that no re-assurance had been given that Jadhav would not be executed before the final decision, hence making this order necessary. Finally, the Court ordered Pakistan to “take all measures at its disposal” to ensure a stay on Jadhav’s execution and inform the Court of all the measures taken pursuant to this order.

Though, the interim decision has been delivered in favour of India, a perusal of past precedents show, that such order does not assure that Jadhav will not be executed. Amongst LaGrand, Avena and Paraguay, despite favourable orders, the execution could not be stopped in two of these cases. First, in 1998, Paraguay brought a case against USA for violation of VCCR because of the failure to inform Paraguayan national, Angel Breard, of his consular access’ rights. Similar to the Jadhav case, the ICJ had ordered USA to “take all measures at disposal” to stop the execution. However, Breard was executed only five days later and Paraguay withdrew the case. Subsequently, in 1999, Germany brought a similar case against USA for failure to inform Walter and Karl Grand of their rights under the VCCR. Since, USA did not comply with ICJ’s order of staying the execution, Germany charged USA with violation of international law on account of failure to implement provisional measures. Last, in 2003, Mexico brought a similar case in a matter concerning 54 Mexican Nationals. The order was passed in favour of Mexico. However, the United States Supreme Court held that the order of the ICJ was not binding unless Congress has enacted statutes implementing it or unless the treaty itself is “self-executing”. However, in the case of La Grand, the ICJ had held that interim orders are binding on the government, and the execution was held as illegal.

Hence, a perusal of these cases shows that despite gaining a favourable order, India cannot be sure to protect Jadhav’s life, but only have his execution declared illegal.
With regards to the issue of unavailability of the remedy sought, the judgment shall be meted out on merits. However, it appears that while the final order on merits may favour India, it need not necessarily grant all remedies sought by India. In this case, India seeks a reversal of the death sentence delivered against Pakistan. In the case of La Grand, USA had argued that violation of VCCR cannot lead to a remedy of reversal, but only clemency or apology. However, the Court had held that the receiving state must provide for ‘review and reconsideration’ of the death sentence. In Avena, ICJ clarified that this did not mean that reversal would be granted in all cases of violation of VCCR. Such reversal would only be considered if the denial to consular access to lead to prejudice in the trial of the convict national. Further, such ‘review and reconsideration’ cannot be done by ICJ, but by concerned Domestic Courts. This reasoning is considered incomplete for there is no specified way to prove existence of prejudice due to denial of consular rights. Hence, India may be able to win the ICJ Case, but it is highly unlikely that the ICJ will order a reversal of the death sentence itself instead of ordering Pakistani Courts to reconsider the death sentence in light of VCCR violations. However, it is pertinent to note that ICJ judgments do not form precedent and it remains to be seen if ICJ will set a new rule in this case.
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Article in Focus

“TOWARDS A TRIBUNAL SERVICE AGENCY” by Pratik Datta
The last minute amendments made to Finance Bill, 2017 before being passed have brought in far-reaching changes to the Indian tribunal regime. Among other changes made to ‘reform’ tribunals, the amendments have reduced the number of tribunals set up under different Acts of Parliament from 27 to 19 by merging 8 existing tribunals with others. For instance, Competition Appellate Tribunal has been merged with National Company Law Appellate Tribunal.
scroll.in/article/832884/changes-made-to-tribunals-in-the-finance-bill-are-unconstitutional-and-i...

Although only time will tell whether the amendments will stand the test of judicial scrutiny this week’s article in focus deals with an important practical aspect of tribunals – improving their efficiency. A direct consequence of merger of tribunals is an increase in both, the judicial and administrative, workload of existing tribunals. “TOWARDS A TRIBUNAL SERVICE AGENCY” by Pratik Datta in Volume 8 Issue 3-4 provides a unique reformative solution. It proposes to ‘hive off’ administrative functions of all tribunals from its judicial members and confers it upon a separate body – Tribunal Service Agency. This move seems called for especially after the merger of tribunals brought about by the Amendment.
nujslawreview.org/wp-content/uploads/2016/12/Pratik-Datta.pdf
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