- The Vienna Convention on Consular Relations of 1963 is an international treaty that defines a framework for consular relations between independent states. A consul normally operates out of an embassy in another country, and performs two functions:
(1) protecting in the host country the interests of their countrymen, and
(2) furthering the commercial and economic relations between the two states.
- The treaty provides for consular immunity. The treaty has been ratified by 180 states Kulbhushan Jadhav, the former Indian Navy officer, who was allegedly abducted by Pakistani intelligence from Iran and sentenced to death on charges of espionage and terrorism by a farcical military court in Pakistan, has been given a glimmer of hope by the ruling of the International Court of Justice (ICJ). Responding to a petition by India that sought an annulment of his death sentence because Pakistan had violated numerous international treaties and extracted irregular confessions under coercion, the ICJ, on July 17, 2019, ruled with a decisive vote (15-1) that Mr. Jadhav cannot be executed by Pakistan, and that he must be given adequate consular access and a fair trial. The ruling also urged Pakistan to review his conviction. This constitutes a major diplomatic and legal victory for India, with Pakistan accusing India of ‘ambushing’ it at The Hague.
- Focussed strategy
- Given its rather lukewarm record in the past of securing the release of Indian detainees in Pakistan through bilateral negotiations, India’s strategy in this case has been to exploit increasing international acceptance that Pakistan was an emerging ‘rogue’ state. Laying stress on Pakistan’s scant regard for Article 36 of the Vienna Convention on Consular Relations — it deals with the arrest, detention and trial of a foreign citizen — India’s counsel, Harish Salve, highlighted two compelling arguments. First was the arrest process, which was not accompanied by an immediate notification to Indian consular officials in Islamabad. There was a delay of over three weeks before India was informed, and it was during this period, according to reliable sources from within Pakistan, that Mr. Jadhav was subjected to all means of coercion and forced to sign a ‘confession taken under custody’ without adequate legal representation. Second was the twoway denial of access and communication by any means between Mr. Jadhav and consular officials and a failure to inform him of the rights he enjoyed under the convention.
- The legitimacy of military courts has always been controversial within the international legal system that emerged in the post-World War II era as a fast-track system of delivering skewed justice by authoritarian regimes and military dictatorships. Purportedly set up in Pakistan in 2015 as a counter-terrorist and anti-corruption initiative, Mr. Jadhav’s sentencing in April 2017 was based on confessions taken in captivity and is part of several arbitrary sentencings by Pakistan’s Military Court.
Violation of rights
- The International Covenant on Civil and Political Rights (ICCPR) recognizes the right to an effective defence against criminal charges, and to a fair and impartial trial, in which the accused is represented by a lawyer of his choice. By denying consular access, Pakistan has stood in gross violation of both the Vienna Convention and the ICCPR. Had due process been followed, and then had Mr. Jadhav been charged with espionage, India may not have had the necessary room to take the matter to the ICJ.
- By attempting to circumvent the ‘due diligence’ process, Pakistan has exposed serious chinks in its legal environment and jeopardised its standing in the comity of nations.
- The Jadhav case has also revealed Pakistan’s desperation in its search for ‘proxies’ as drivers of the internal unrest in Balochistan. Reliable sources within India’s intelligence agencies hint at the possibility of Mr. Jadhav having been abducted by armed groups operating on the border between Iran and Balochistan. Pakistan is known to have used proxy Sunni groups such as the Jaish al-Adl against Iran, and Iranian officials have often spoken to their Indian counterparts about Pakistan’s sponsorship of terrorist activities along the Iran-Pakistan border. A testimony to the growing menace of this group is its recent designation as a front of Jundullah — which is a ‘Specially Designated Global Terrorist’.
- India has shown both intent and resilience in attempting to secure the release of Mr. Jadhav despite the many hiccups along the way. Following a synergized approach steered by the National Security Adviser and the External Affairs Minister, India fought the kidnapping of Mr. Jadhav, an Indian national who was legitimately residing in Iran after retirement from the Indian Navy. Realising, in 2017, following his death sentence that the overall deteriorating relations between India and Pakistan had closed the door on any bilateral way of securing his release, India rightly chose to go the ‘international way’ by fielding a formidable legal team led by the jurist, Harish Salve. Sparing no efforts on the human aspects of the case too, India managed to get Mr. Jadhav to meet his mother and wife after the death sentence was pronounced. The first success achieved by the Indian legal team was on May 9, 2017 when the ICJ sent an urgent message to the Prime Minister of Pakistan, urging him to stay the execution till India’s case was heard fully and the ICJ arrived at a verdict. Moving slowly but surely through the legal battle for over two years, India, has been demonstrating significant synergy between various stakeholders in the case.
- The final verdict will, hopefully, galvanise the Indian establishment to step on the pedal and exert pressure on Pakistan to rescind the death sentence and allow Mr. Jadhav consular access and legitimate legal platform to mount his defence. While it would be wishful thinking to assume that Mr. Jadhav would return to India soon, there is a glimmer of hope on the horizon that the Indian strategic establishment would do well to exploit. Having deftly navigated the legal and diplomatic channels and restrained the Pakistan military by securing manoeuvring space following the ICJ verdict, a leading power such as India must demonstrate its intent and capacity to extract desirable outcomes out of potentially difficult, or seemingly impossible situations. Kulbhushan Jadhav’s case is one such challenge.
- The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly . Resolution 2200A (XXI) on 16 December 1966, and in force from 23 March 1976 in accordance with Article 49 of the covenant. Article 49 allowed that the covenant would enter into force three months after the date of the deposit of the thirty-fifth instrument of ratification or accession. The covenant commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of August 2017, the Covenant has 172 parties and six more signatories without ratification.
- The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights(UDHR).
- The ICCPR is monitored by the United Nations Human Rights Committee (a separate body to the United Nations Human Rights Council), which reviews regular reports of States parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee normally meets in Geneva and normally holds three sessions per year
- India’s singular objective as a non-permanent member of the United Nations Security Council (UNSC) in 2021-22 should be to help build a stable and secure external environment. In doing so, India will promote its own people’s prosperity, regional and global security and growth, and a rule-based world order. It could emerge a partner of choice for developing and developed countries alike. • India’s representation in the UNSC has become rarer.
- It is to re-enter the Council after a gap of 10 years. The previous time, in 2011-12, followed a gap of 20 years. In total, India has been in the UNSC for 14 years, representing roughly a fifth of the time the United Nations (UN) has existed. India must leverage this latest opportunity to project itself as a responsible nation.
Changing state of world
- India finds itself in a troubled region between West and East Asia, a region bristling with insurgencies, terrorism, human and narcotics trafficking, and great power rivalries. There has been cataclysmic dislocation in West Asia. The Gulf is in turmoil. Though the Islamic State of Iraq and the Levant (Daesh) has been defeated, Iraq and Syria are not going to be the same as before. Surviving and dispersed Daesh foot soldiers are likely preparing new adventures, many in their countries of origin. The turbulence in West Asia is echoed in North and South Asia, a consequence of the nuclear and missile tests by the Democratic People’s Republic of Korea and Afghanistan’s slow but unmistakable unravelling from the support, sustenance and sanctuary provided in its contiguity to groups such as the Haqqani network, the Taliban, and al-Qaeda. Other problems in Asia include strategic mistrust or misperception, unresolved borders and territorial disputes, the absence of a pan-Asia security architecture, and competition over energy and strategic minerals.
- Alongside, the western world is consumed by primordial, almost tribal instincts, turning its back on the universal values it once espoused as western values. Pundits and political scientists, who had spoken of the end of the nation state and the end of history itself, are grappling with the rise of new nationalism.
- The benign and supportive international system that followed the Cold War has all but disappeared. At the beginning of this century, the words ‘national interest’ had acquired almost a pejorative connotation. They are now back in currency.
- Fear, populism, polarisation, and ultra-nationalism have become the basis of politics in many countries. No wonder that five years ago, when Henry Kissinger completed his latest work, World Order, he found the world to be in a greater state of disorder than at any time since the end of World War II.
- Even so, the world is in a better place today than when the UN was first established. The record on maintaining international peace and security, one of the prime functions of the UNSC, has been positive, with or without the UN.
- The world has been distracted from its other shared goals, especially international social and economic cooperation. Although coordination between 193 sovereign member nations will be difficult, it is well worth trying. To this end, the permanent members (P-5) as also other UN members must consider it worth their while to reform the Council.
A report by PricewaterhouseCoopers, “World in 2050”, predicts that by 2050, China will be the world’s number one economic power, followed by India. In China’s case, this is subject to its success in avoiding the middle-income trap. And in India’s, to more consistent economic performance than the experience of recent years. That said, one of the challenges of the international system today, and for India in the UNSC, is that this profound impending change is largely unrecognized by the great powers and other countries.
What should India aim to do?
- There is no need for India to fritter away diplomatic goodwill in seeking an elusive permanent seat in the UNSC — it will come India’s way more by invitation and less by self-canvassing. India will have to increase its financial contribution, as the apportionment of UN expenses for each of the P-5 countries is significantly larger than that for India. Even Germany and Japan today contribute many times more than India. Although India has been a leading provider of peacekeepers, its assessed contribution to UN peacekeeping operations is minuscule.
- At a time when there is a deficit of international leadership on global issues, especially on security, migrant movement, poverty, and climate change, India has an opportunity to promote well-balanced, common solutions.
- First, as a member of the UNSC, India must help guide the Council away from the perils of invoking the principles of humanitarian interventionism or ‘Responsibility to Protect’. The world has seen mayhem result from this. And yet, there are regimes in undemocratic and repressive nations where this yardstick will never be applied. Given the fragile and complex international system, which can become even more unpredictable and conflictual, India should work towards a rules-based global order. Sustainable development and promoting peoples’ welfare should become its new drivers.
- Second, India should push to ensure that the UNSC Sanctions Committee targets all those individuals and entities warranting sanctions. Multilateral action by the UNSC has not been possible because of narrowly defined national interest. As on May 21, 2019, 260 individuals and 84 entities are subject to UN sanctions, pursuant to Council resolutions 1267, 1989, and 2253. The U.S. Department of Treasury’s Office of Foreign Assets Control maintains a larger list of individuals and entities subject to U.S. sanctions. The European Union maintains its own sanctions list.
- Third, having good relations with all the great powers, India must lead the way by pursuing inclusion, the rule of law, constitutionalism, and rational internationalism. India should once again become a consensus-builder, instead of the outlier it has progressively become. A harmonized response is the sine qua non for dealing with global problems of climate change, disarmament, terrorism, trade, and development. India could take on larger burdens to maintain global public goods and build new regional public goods. For example, India should take the lead in activating the UNSC’s Military Staff Committee, which was never set into motion following the UN’s inception. Without it, the UNSC’s collective security and conflict-resolution roles will continue to remain limited.
- Looking at polycentrism
- A rules-based international order helps rather than hinders India, and embracing the multilateral ethic is the best way forward. India will be a rich country in the future and will acquire greater military muscle, but its people will remain relatively poor. India is a great nation, but not a great power. Apolarity, unipolarity, a duopoly of powers or contending super-powers — none of these suit India. India has a strong motive to embrace polycentrism, which is anathema to hegemonic powers intent on carving out their exclusive spheres of influence.
- Finally, India cannot stride the global stage with confidence in the absence of stable relations with its neighbours. Besides whatever else is done within the UN and the UNSC, India must lift its game in South Asia and its larger neighbourhood. Exclusive reliance on India’s brilliant team of officers at its New York mission is not going to be enough.