Kulbhushan Jadhav

The Curious Case of Kulbhushan Jadhav Part 2

by Ragini Gupta*

In continuation from our previous post, here we discuss how the World Court may grant provisional measures pending the final judgment, how it has done so in the past in cases similar to Kulbhushan Jadhav’s and the implications of such orders.

The International Court of Justice: Provisional Measures

Unlike domestic courts, a State cannot simply ‘drag’ another State to the International Court of Justice. States are required to move the Court jointly, unless the dispute falls under a category of matters to which the States have previously agreed that the jurisdiction of the ICJ would apply. Luckily in this case, both India and Pakistan are parties to the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963, which provides that disputes arising out of the interpretation or application of the VCCR shall lie within the compulsory jurisdiction of the ICJ, and may accordingly be brought before the court by any party to a dispute. The major benefit of instituting proceedings at the ICJ is that pending the decision on the question of consular access, a person can be protected if the Court grants binding provisional measures against his execution, as it is empowered to do under Article 41 of the Statute of the International Court of Justice. Indeed, the ICJ has passed such orders in previous disputes on consular access in death penalty cases – and this is what it ordered on May 18 as well.

A question arises is this: Did the ICJ’s provisional measures actually help the people for whom they were sought? The answer to this is far from straightforward.
In the Breard [1] case, Angel Francisco Breard, a dual national of Paraguay and Argentina was convicted and sentenced to death for murder. When Breard had exhausted all state court proceedings, he learned that his rights under the VCCR had been violated, and brought a habeas corpus petition in the federal district court. This was denied on the grounds that Breard had failed to raise the issue in the state court proceedings. Subsequently, Paraguay sued in the ICJ, stating that the United States had violated the VCCR. The Court issued provisional measures, demanding that the U.S. take all measures to ensure that Breard was not executed pending the decision of the ICJ. However, the Supreme Court held that rights under the VCCR were to be exercised in accordance with the rules of the receiving State. and by not raising the issue previously, he had forfeited his rights; in any case, Breard had failed to show any prejudice caused to him by the alleged VCCR violation. Notably, the Court “did not see itself as constrained by the [ICJ’s provisional] order. [2]” Soon after the release of this judgment, Breard was executed.

In the LaGrand[3] case, the LaGrand brothers, who were German nationals sentenced to death in the US were informed of their VCCR rights weeks before their scheduled executions. Germany sued the U.S. in the ICJ, asserting that the US had violated its VCCR obligations. Like in the Breard case, the ICJ ordered provisional measures against the executions. However, the Supreme Court, on the grounds that the VCCR issue had been raised too late, allowed the execution to proceed despite the ICJ’s injunction. Nevertheless, Germany pursued the case at the ICJ, and the U.S. was held to be in breach of its obligations under the VCCR.

In the Avena[4] case, when Mexico instituted proceedings in the ICJ against the U.S. for VCCR violations, provisional measures were issued against the executions. This time, the U.S. complied. When the final judgement was handed down, the U.S. was found to be in violation of its obligations with respect to consular access and ordered to review and reconsider the death sentences.

Thus, we see that the provisional measures of the ICJ have sometimes failed because it is domestic courts that have the ultimate powers for enforcement. In LaGrand, when the US was found to be in breach of its international law obligations after the brothers were already dead, all it did was issue an apology. This has led some to argue that the rights under the VCCR are mere empty promises.[5] Nevertheless, failure by Pakistan to respect an order of the ICJ will have the repercussions of the displeasure of the international community and the possibility of being tagged a rogue State.

[*Ragini Gupta is a fourth year student at National Law University, Jodhpur. Her areas of interest include public international law and intellectual property rights. She can be contacted at raginigupta615@gmail.com.]



[1] Breard v Greene,523 U.S. 371 (U.S. 1998)

[2] Mark Weisburd, International Courts and American Courts, 21 MICH. J. INT’L L. 877, 882 (2000)

[3] La Grand Case (Germany v. United States of America), 2001 I.C.J. 104

[4] Case concerning Avena and Other Mexican Nationals (Mex. V. U.S.), 2004 I.C.J. 128 (Mar. 31)

[5] Rebecca E. Woodman, International Miranda? Article 36 of the Vienna Convention on Consular Relations, 70 J. KAN. B. ASS’N 41, 48 (2001).


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