The Postcolonial Paradox at the World Court: Analyzing Pakistan’s arguments in the Jadhav Case

by Sagnik Das*

“International law is challenged by two myths on which it is built: the premise that only states matter and that they are all equal.”[1] The relevance of the ‘colonial encounter’ in shaping the main tenets of modern international law remains a key motif in international law scholarship.[2] A prominent school of thinking is devoted to understanding and dissecting the imperialist foundations of modern international law.[3] This then presents the postcolonial States [4 ] with a peculiar paradox, especially in the context of international dispute resolution. These States that have been subject to colonialism, for often large parts of their modern history (and in fact, may perhaps owe their existence as nation-States to the colonialism), have since then gained independence only to join a system of law that played an important part in their having been colonies. Since their birth (or re-birth from their colonial past), these “third-world” States have often attempted to resist and reform the existing structures of international law considering its pronounced colonial influence. However, whether States can “resist” by way of raising particular arguments before international courts or tribunals, which deliberately depart from the existing colonial paradigm, requires closer scrutiny. This becomes especially significant in the context of proceedings before the International Court of Justice, a body which is rather reluctant to admit of any change in established legal doctrine or discourse,[5 ] and will certainly not be receptive to those arguments which undermine the foundations of the discipline. The paradox that postcolonial States are faced with is to either “talk” in the language that the ICJ is used to hearing, i.e. advance arguments that the ICJ is likely to accept-which more often than not will be advancing a strictly Western or European notion of international law (even though that may mean giving up their “resistance”), or face the prospect of losing the dispute by advancing arguments which debunk existing western notions of international law.[6] Pakistan’s pleadings in the interim measures proceedings of the recent Jadhav case provide for an interesting analysis of this paradox.

For starters, one must immediately notice that Pakistan did not choose to go into the oral proceedings with a bandwagon of western lawyers as counsels and advisors. Indeed, many developing countries often choose to be represented by a whole host of western practitioners in their disputes before the ICJ,[7] who then adopt strategies or advance arguments within the existing paradigm of international law, without necessarily attempting to rid their submissions from any colonial tinge. In such cases, the arguments advanced by those developing States (through the western lawyers on their team) can hardly be called as offering ‘resistance.’ However, it is the lack of such strong ‘western presence’ on the Pakistani legal team that makes their oral submissions rather interesting and in some sense, different.

Most of the submissions that Pakistan made in the oral hearing vacillated between themes of “national security”, “political character of the dispute” and “interference in internal affairs”; arguments, typically made by developing States zealously guarding their sovereignty. Take for instance Pakistan’s submission that the dispute is of a political character and India seeks to win political points by filing the Application before the Court.[8] Similar arguments have been made by other developing States in disputes before the ICJ.[9] Given that the ICJ has settled the question of whether the political character of a dispute can serve as a bar on the Court considering the legal aspects of the matter,[10] it is my opinion that if assisted by a number of western international lawyers, Pakistan would be ill-advised to press such a contention, even feebly. However, Pakistan’s argument seems to come straight from the heart of a postcolonial state anxious to ensure that its domestic legal policies and procedures are not up for questioning before an international forum. Similarly, arguments on interference with domestic judicial proceedings also evidence the fundamental resistance of the third world towards global accountability for their internal judicial and executive processes.

Even in terms of litigation strategy, the lack of pronounced western presence (not just in terms of Western lawyers, but lawyers with a largely strict, textual and Western view of international law) in Pakistan’s legal team is also evident. For instance, Pakistan’s response to India’s contentions based on the text of Article 36 of the Vienna Convention on Consular Relations (“VCCR”), is that the Convention (and specifically Article 36) would not be applicable to a spy (Commander Jadhav) or to a State that has sent it’s national to spy. However, the submissions stop at asserting that the VCCR (or Article 36) could “never have been intended” to apply to States or persons conducting espionage.[11] However, Pakistan does not base this conclusion on the text, context orobject and purpose of the VCCR; neither does it seek to draw any support from the travaux preparatoires. Any lawyer (particularly the kind I have referred to as the “western lawyer” in this post) familiar with the Court’s adjudicative processes would have advised Pakistan to base its submissions within the four walls of the VCCR and use the canons of interpretation provided in the Vienna Convention on the Law of Treaties;[12] this given the Court’s overt preference for codified treaty law and its insistence on interpreting a treaty only in accordance with VCLT accepted canons.[13] In this context, Michelle Burgis, for instance, has pointed out that the Court’s reliance (or over-reliance) on treaties for its adjudication and its strictly formalistic approach in interpreting such treaties, is in consonance with a European-imperialist view of international law.[14] Here again then, Pakistan’s legal strategy presents some sort of defiance (and in that sense perhaps, resistance) to Western legal techniques of defending a dispute at the World Court.

It will be interesting to see whether at the merits phase, Pakistan decides to engage western lawyers who will then advise on more formulaic ways of choosing/presenting arguments, in keeping with the traditions and precedents of the Court. In my casual conversations with other international law enthusiasts, I gather that many of them felt that Pakistan’s arguments before the Court were not really “legal”. So deeply entrenched are Western-liberal notions of what the content of international law “is”, that departures from established practice to agitate more fundamental concerns of a sovereign that almost challenge that conception of the law, are seen as “non-legal”. That Pakistan lost the dispute’s provisional measures phase, surely does not help matters.

[*Sagnik Das graduated from National Law University, Jodhpur in 2016 with a B. Sc LL.B (Hons) degree. He is particularly interested in the Global North-South relations in Public International Law and International Economic Law. He can be reached at sagnik.nlu@gmail.com.]

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[1] I borrow this sentence from Professor Jose Alvarez, Herbert and Rose Rubin Professor of International Law, NYU Faculty of Law.

[2] See for instance, BALAKRISHNAN RAJAGOPAL, INTERNATIONAL LAW FROM BELOW: DEVELOPMENT, SOCIAL MOVEMENTS AND THIRD WORLD RESISTANCE (2003); ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY, AND THE MAKING OF INTERNATIONAL LAW (2005).

[3] Broadly, this school of thinking is referred to as “Third World Approaches to International Law” (or TWAIL). For different sub-schools within the TWAIL, see B.S. Chimni, The World of TWAIL: Introduction to the Special Issue, 3(1) TRADE L. & DEV. 14 (2011).

[4] Loosely, variations of this term include “third world states”, “developing states” or collectively “the global south”. Here, postcolonial States refers to the former colonies of the imperialist powers. I use the word ‘post-colony’ as a matter of fact, rather than as a theoretical viewpoint.

[5] This reluctance of the Court is best described in its decision on Preliminary Objections in the Land and Maritime Boundary case, where the Court noted- “It is true that, in accordance with Article 59, the Court’s judgments bind only the parties to and in respect of a particular case. There can be no question of holding Nigeria to decisions reached by the Court in previous cases. The real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases.” Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, 1998 ICJ 275, ¶28.

[6] For an illuminating analysis on this postcolonial paradox and the boundaries of discourse at the ICJ in the context of territorial disputes, see MICHELLE L. BURGIS, BOUNDARIES OF DISCOURSE IN THE INTERNATIONAL COURT OF JUSTICE: MAPPING ARGUMENTS IN ARAB TERRITORIAL DISPUTES (2009). [“Burgis”]

[7] See for instance, Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, 1994 ICJ 6, where Libya had Mr. Derek W. Bowett, Mr. Philippe Cahier, Mr. Luigi Condorelli, Mr. James R. Crawford, Mr. Rudolf Dolzer, Sir Ian Sinclair and Mr. Walter D. Sohier in their legal team.

[8 ] International Court of Justice, Public Sitting held on Monday 15 May 2017, at 3 p.m., at the Peace Palace, President Abraham presiding, in the Jadhav Case (India v. Pakistan), CR 2017/6, Verbatim Record, Oral Submissions of Pakistan, p. 9. [“Pakistan-Oral Submissions”]

[9 ] See for instance, the letter addressed by Iran to the International Court of Justice in the Tehran Hostages Case. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Request for the Indication of Provisional Measures, Order of 15 December 1979, ¶8.

[10] See, United States Diplomatic and Consular Staff in Tehran, Judgment, 1980 ICJ 3, ¶40.

[11] See, Pakistan-Oral Submissions, supra note 8 at p. 20: “Now, if we read this again, “Consular officials [of a State that is sending somebody to spy] shall have the right to visit, converse, and communicate, correspond with the national [the man or woman who is sent to spy].” And when one reads the provision in that way, it is immediately obvious that 36 (1) (c) could never have been intended to apply in this context.” The agent for Pakistan stopped at this, without adducing any further legal analysis on the interpretation of Article 36(1)(c), in accordance with Articles 31-32 of the VCLT, ostensibly being of the view that the absurdity of the sentence he just read out would speak for itself.

[12] Specifically those provided in Articles 31-32.

[13] See for instance, Lighthouses Case between France and Greece, Judgment of March 17, 1934, Series A/B 62, Permanent Court of International Justice, p. 25. In this case, the parties had raised arguments based on treaties, customs, as well as judicial precedents and opinion of certain authors. However, the Court noted that it did not “think it necessary to express its opinion on this point. In the present case, it has before it a treaty clause, namely Article 9 of Protocol XII of Lausanne.

[14] Burgis, supra note 6 at pp. 125-128.

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