In March 2016, Kulbhushan Sudhir Jadhav, an Indian national, was detained by Pakistan, accused of performing acts of espionage and terrorism on behalf of India. In April 2017, he was sentenced to death by a military court in Pakistan. On 8 May 2017, India filed a case against Pakistan at the International Court of Justice or ICJ in The Hague, alleging violations by Pakistan of its obligations under the Vienna Convention on Consular Relations of 1963. Article 36 of the Convention specifically required Pakistan to inform India, “without delay”, of the detention of Kulbhushan Jadhav, inform Kulbhushan Jadhav of his rights, and allow Indian consular officials access to Kulbhushan Jadhav.
Pakistan rejected India’s claims by using a variety of legal arguments during the hearing of the case at the ICJ. On 17 July 2019, the ICJ delivered its judgement, stating that the “Court finds that the Islamic Republic of Pakistan, in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav, has acted in breach of the obligations incumbent on it under Article 36 of the Vienna Convention on Consular Relations.”
In the landmark judgement, the ICJ unanimously asserted that it had jurisdiction over the case, since both India and Pakistan were signatories of the Vienna Convention. The ICJ rejected Pakistan’s efforts to divert the case to either an arbitral tribunal or a conciliation commission, holding that India had the right to approach the ICJ directly in this matter. The ICJ rejected Pakistan’s argument that the Vienna Convention did not apply to cases of persons detained for alleged espionage. The Court found that Pakistan, by not informing India for three weeks of Kulbhushan Jadhav’s arrest, and not providing India consular access, had violated its obligations under the Vienna Convention which required it to do so “without delay”. The ICJ rejected Pakistan’s attempt to apply its obligations under Article 36 of the Vienna Convention in a conditional manner, dependent on India’s actions on other issues.
The heart of the ICJ judgment is contained in Section 6, which recommends ways to remedy this violation of the Vienna Convention by Pakistan. Calling Pakistan’s denial of its obligations to uphold Kulbhushan Jadhav’s rights, including the right to consular access, “internationally wrongful acts of a continuing character”, the ICJ has asked Pakistan to comply with both obligations. It has opined that the “appropriate remedy in this case to be effective review and reconsideration of the conviction and sentence of Mr. Jadhav”, which “must be performed unconditionally” by Pakistan. This would include Pakistan “enacting appropriate legislation” if needed to ensure justice. Till then, the ICJ has ordered the “continued stay of execution” as an “indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav.”
As Prime Minister Narendra Modi said after the judgment, “Truth and justice have prevailed. Congratulations to the ICJ for a verdict based on extensive study of facts. I am sure Kulbhushan Jadhav will get justice. Our Government will always work for the safety and welfare of every Indian.”
The ICJ judgement is significant for at least three reasons. First, the judgement is binding on “the parties and in respect of that particular case” according to Article 59 of the ICJ Statute. Second, the judgementvindicates India’s consistent belief and advocacy in using the rule of law to ensure justice for her citizens, and the peaceful settlement of disputes between states. Third, implementing the judgement will act as a litmus test for the principle of international cooperation, on which the current multilateral system, including the rule of law, is founded.
In the wider framework, the ICJ judgment embellishes India’s track record since 1947 of giving substance to Article 13.1 of the UN Charter, which calls for “the progressive development of international law and its codification”. The provisions of the Vienna Convention on Consular Relationshave been significantly amplified by this case.
(The Commentary was written for All India Radio)
(The author is a former Permanent Representative of India to the United Nations, Distinguished Fellow, Vivekananda International Foundation, New Delhi)
India needs to thoroughly explore Pakistan’s recent behavioral pattern against the back of its extraordinary victory in the four-decades-old Afghan civil war that is finally sailing into view — after so much of trials and tribulations, risking Pakistan’s internal stability.
Shock and awe in the world of politics work in unpredictable ways. They could have disastrous consequences or could have a salutary effect on the protagonists involved and have a chastening influence, leading to something good.
The shock and awe that the then US President George W Bush hoped to administer to Iraq by invading that country destroyed that country and led to mayhem.
In comparison, the shock and awe that the then Soviet leader Nikita Khrushchev gave to his American counterpart John Kennedy in 1962 by dispatching radars and missiles to Cuba had the desired effect. Khrushchev prevailed upon the US to remove the nuclear missiles deployed in Turkey as a reciprocal step for his willingness to not press ahead with the planned deployment of the Soviet missiles on the Caribbean island-state.
The invocation of such poignant slices of modern history helps to underscore that the shock and awe of the imminent specter of the return of the Taliban to the mainstream political life in Afghanistan — and Pakistan’s success in bringing it about — need not necessarily be taken as defeat from the Indian point of view.
Henry Ford, the great American industrialist who founded the iconic motor company, once said, “Failure is simply the opportunity to begin again, this time more intelligently.”
The clue almost always lies in humility, which keeps out hubris. There was no rationale for waging a proxy war with Pakistan on the tragic Afghan turf, since no matter how anyone tried, Pakistan wouldn’t have caved in, given the high stakes involved. If nothing else, the 2,200-kilometre long open border with Afghanistan alone could have motivated Islamabad to seek a friendly government in Kabul that is receptive to its core concerns and vital interests of national security.
A former Director General of Pakistan’s Inter-Services Intelligence (ISI) once told this writer that if an Afghan had a toothache, he got it fixed by a dentist in Peshawar.
India can and should learn to live with the emerging reality in our region — Taliban’s ascendancy to power in Kabul, Pakistan’s reasonable success in ensuring that the future power brokers on the northern side of the Durand Line are friendly and cooperative, and, third, Afghanistan’s inexorable transformation as a regional hub of China’s Belt and Road Initiative.
The time has come to address India-Pakistan tensions, which is fundamental to regional security and stability. Signs are looking good that Pakistan is in the least interested in triumphalism. Three most recent trends must be noted. One, the guns have fallen silent on the border and incidents of infiltration sharply declined. Two, Pakistan bowed to make concessions on the Kartarpur Sahib pilgrimage. And, three, Pakistan has unceremoniously reopened its airspace, bringing much relief to Indian travelers.
What lends enchantment to the view is that these nascent trends appeared as the countdown began for the verdict by the International Court of Justice (ICJ) at The Hague in the case of Kulbhushan Jadhav, who is on death row in a Pakistani jail.
A consensus ICJ ruling is usually arrived at through candid discussions, which the plaintiff and the defendant are privy to, informally. Quite obviously, such a fair denouement may provide the exit door for both Islamabad and New Delhi to move on, and it is entirely conceivable that both countries are in a chastened mood today over an a priori history that is best laid to rest.
Surely, this is where the most recent ‘goodwill gesture’ by Pakistan over the Kartarpur Sahib pilgrimage assumes particular significance. The differences between the two countries dramatically narrowed once Pakistan assured India without caveats that it will not allow pro-Khalistan activists to use the ‘Peace Corridor’ to indulge in anti-India activities. Indeed, very little time is left before the 550th birth anniversary of Guru Nanak in November.
It is often the case in life that others may open the doors, but you must enter by yourself. To be sure, India needs to thoroughly explore Pakistan’s recent behavioral pattern against the backdrop of its extraordinary victory in the four-decades-old Afghan civil war that is finally sailing into view — after so much of trials and tribulations and after committing such massive resources in men and material, risking Pakistan’s own internal stability.
The recent Pakistani stance vis-a-vis India is devoid of any traces of triumphalism. The time has come for the Indian leadership to take a big leap forward to begin a serious conversation with Pakistan. The heart of the matter is that a rare opportunity may be at hand for the two countries to discuss the rites of passage to a new era based on a moratorium on asymmetrical or proxy wars. This needs to be done at the leadership level.
An improvement in the India-Pakistan relationship will provide an open sesame to the emerging regional security scenario to turn it into an opportunity for India’s development. It will require that India jettisons its notions of the Taliban being a creature of darkness and a reset of regional policies that puts in perspective the tumultuous period that followed the Saur Revolution in 1978, which is breaking loose and drifting into history books. Importantly, the normalization of the India-Pakistan ties — and making them predictable — is the sine qua non for a steady enhancement of India’s partnership with China to make it strategic, which Prime Minister Narendra Modi has set his eyes upon as a historic legacy of his leadership.
Every new path in Indo-Pak relations ends in a treacherous cul-de-sac. Yet, after every ambush the twins born of colonial cunning go back to start it all over again. Even Ajmal Kasab walking up and down the South Mumbai streets with an automatic rifle in hand did not change the pattern; nor did four wars and the splitting of Pakistan into two. Indira’s generosity after victory, Vajpayee’s peace bus, Manmohan Singh’s Sharm el-Sheikh blunder and Modi’s surprise birthday gift for Nawaz Sharif, nothing ever changed the Pakistan deep state’s attempts to bleed India with a thousand cuts and a million mutinies. But the Pulwama bomb attack and the retaliatory Balakot airstrikes have broken the cycle of Pak attacks and Indian negotiations.
It is in this context we need to look at the recent events: the verdict of the International Court of Justice (ICJ) asking Pakistan to review its decision to execute Kulbhushan Jadhav, the arrest of Hafiz Saeed the very same day and the just-concluded Kartarpur corridor talks. The Government of India, with great reverence to the Guru, upholding the Sikh sentiments, has rightly kept the Kartarpur corridor out of the ambit of Indo-Pak negotiations. Apart from Sikhs, only Hindus worship at gurdwaras and revere the Guru, yet Pakistan tried its best to ban Hindus to turn the corridor communal. Despite all these provocations and the legitimate fear of Pakistan fanning 2020 secessionist fires, New Delhi has honored the wishes of its Sikh and Hindu believers by building the corridor.
Now, if Pakistan really wants to break out of its vicious cycle of terror and talks, it should let Jadhav go home. The ICJ verdict does not acquit Jadhav, as it did not have the jurisdiction to examine the evidence for and against the accused. But the spirit of the ICJ decision is in favor of Jadhav’s return. Beyond the breach of Article 36, 1 (b) of the Vienna Convention, what have been exposed are the mock trial and the use of a former Indian Naval officer as a tool to settle diplomatic scores. Pakistan cannot achieve anything more by keeping Jadhav in its custody. Jadhav’s release can lure India back to the talks table.
The author, who was India’s Permanent Representative to the United Nations in New York from April 2013 to December 2015, takes a close look at the issues before the United Nations, and lists the priorities for the World Body in 2018. The three priorities, according to him, are “Completion of process of reforming the UNSC”; “accelerated implementation of the socio-economic goals of Agenda 2030”; and “reforming the Human Rights Council to uphold fundamental human rights and freedoms”.
As the United Nations (UN) approaches its 75th anniversary in 2020, the world it represents has changed beyond recognition. From its original 51 founding members, the UN General Assembly (UNGA) today has 193-member countries. While the three “pillars” of the UN continue to be global governance in the political, socio-economic, and human rights areas, there is growing restiveness among the majority of the UNGA member states for reforming the UN to reflect ground realities.
The UNGA’s new assertiveness in influencing decisions on UN functioning was on display during the November 2017 vote in the UNGA on electing judges to the International Court of Justice (ICJ). The unscripted situation, in which India’s candidature enjoyed majority support among the countries in the UNGA, was offset by the power play in the UN Security Council (UNSC), orchestrated by the solidarity of its five permanent members, which prevailed on several other non-permanent members to consistently back the candidate of the United Kingdom. This deadlock was finally resolved through mature diplomacy, with the United Kingdom deciding to concede the election in view of the overwhelming preference of the UNGA. India remained the sole candidate for the fifth ICJ seat, which it duly won, being the only name left on the ballot. This outcome has been greeted in many countries as a harbinger of reforming the UNSC itself by the UNGA.
The issue of “UN reforms”, articulated by the UN Secretary General Antonio Guterres and endorsed by President Donald Trump of the United States at their joint meeting in New York in September 2016, has received prominence. However, these are reforms of the UN Secretariat, and reflect the interests of the main financial contributors to the UN budget. The intention is to get more “value” for money, with a parallel attempt to ensure that the interests of financial contributors are reflected in the key managerial positions of the Secretariat.
Member states of the UN represented in the UNGA, on the other hand, are acutely conscious that the UN faces a larger test of its credibility related to its decision-making process and the priorities it gives to its negotiated agendas. In these areas, the impetus for UN reform has to come from the UNGA, and not the UN Secretariat.
The linkage and inter-dependence between peace and development has been woven into the UN Charter since 1945. The perception that the world needs to “sustain” the peace arrived at after the end of the Second World War by “securing” the peace, created the two main organs of the UN under the UNGA. Realpolitik determined that one organ, the United Nations Security Council (UNSC), mandated by the UN Charter with the “primary responsibility” for maintaining international peace and security, operated on non-democratic principles. This was essentially due to the privilege given by Article 27.3 of the UN Charter to the five permanent members (China, France, Russia, the United Kingdom and the United States of America) to veto any decision of the UNSC without giving any reason or accountability. The other organ, the Economic and Social Council or ECOSOC, responsible for global socio-economic development, was imbued by the democratic principle of one-country one-vote, and adherence to the UNGA’s process of taking decisions by majority voting.
Due to this dichotomy, the focus of UN reform in the UNGA has been on the UNSC. The emergence of new challenges and threats to international peace and security in the 21st century has been accompanied by the mushrooming of crises across all the continents of the world. These include Europe (Ukraine and Cyprus), Asia (Syria, North Korea, Yemen, Iraq and Afghanistan), Africa (South Sudan, the Democratic Republic of Congo, Central African Republic, and Mali) and Latin America (Haiti and until recently Colombia). The UNSC has been singularly ineffective in resolving these crises, often looking to the UN peacekeeping operations it mandates to perform the role of preventive diplomacy.
The first priority of the UNGA in 2018, therefore, must be to complete the process of reforming the UNSC. The mandate for this reform was given to the UNGA by world leaders at the 2005 UN Summit thirteen years ago. The Summit had declared that “early reform” of the UNSC was needed to “enhance its effectiveness and the legitimacy and implementation of its decisions.”
How can the UNGA implement this objective in 2018? The UNGA has made incremental progress in implementing its mandate for UNSC reform. It has already agreed on five key areas for UNSC reforms, as well as on inter-governmental negotiations to conclude these reforms. In September 2015, the UNGA unanimously agreed to consider a text submitted by 122 countries (including permanent members France and the UK) containing proposals on each of the five areas, which would be integrated into a UNGA resolution.
Before 14 September 2018, when the 72nd Session of the UNGA ends, a minimum of 129 members of the UNGA must table and adopt a resolution amending the UN Charter to reform the UNSC. This will set the timetable for implementing the reforms holding elections to the new seats of the UNSC in 2019, enabling a reformed UNSC to begin operating by 2020, when the UN marks its 75th anniversary.
The opposition to any such attempt will continue to come from the five permanent members of the UNSC. However, in the UNGA these five countries do not have the veto. A two-thirds majority is needed to adopt such a UNGA resolution. This will set the stage for applying the moral power of the UNGA, based on its broad-based interest in reforming the UNSC, to prevail over the status-quo position of the five permanent members. In this context, introducing a multi-stakeholder campaign, including global thought and business leaders, in favor of a UNGA resolution on reforming the UNSC would accelerate the acceptance of such a resolution by the permanent members. Such an approach paid dividends in the UNGA’s success in September 2015 on agreeing on the ambitious UN socio-economic development objectives contained in Agenda 2030 on Sustainable Development. A multi-stakeholder approach is also built into the UN’s implementation of the Tunis Agenda for a digital global society.
A second major priority for UNGA member states in 2018 will be to accelerate implementation of the socio-economic goals of Agenda 2030. The overarching goal of this Agenda is the eradication of poverty by 2030. While individual members of the UNGA have agreed to focus on their national socio-economic programs to achieve the targets of the 17 Sustainable Development Goals at the core of Agenda 2030, the time has come for the UNGA to focus attention on two critical “means of implementation” which have been agreed to by all countries to catalyze this process.
These two areas are financing for development and the application of technologies for development. The way forward has been identified by the Addis Ababa Financing for Development Conference of July 2015, and the UNGA High-Level Review of the Tunis Agenda for a World Information Society in December 2015. At its High-Level Political Forum meeting in July 2018, the ECOSOC and the UNGA will have an opportunity to convene a dedicated forum to assess how global commitments on these two areas are being implemented on the ground in individual member states of the UNGA. This effort must be driven by member states, to ensure that the UN is responsive to their aspirations on the ground.
A third priority for the UNGA in 2018 is in the area of human rights. Already, calls have been made by the United States for reforming the HRC. These calls should be addressed within the UNGA framework. The UNGA has demonstrated its ability to address concerns expressed by some countries at the profile of countries represented in the HRC. For example, in 2015, Pakistan was unable to get re-elected to the HRC, as was Russia in 2016.
Reforming the HRC needs to go beyond the representation of countries, and address the ability of the HRC to uphold fundamental human rights and freedoms, as set out in the UN Charter. The UNGA in 2018 must address the actual work being done in the HRC, especially in its Universal Peer Review or UPR process. This process is critical to ensure adherence to the UN Charter’s human rights standards. The fact that the HRC devotes only three hours to the UPR of each of the 193 members of the UNGA is one such issue, since this limited time applied uniformly to all countries being reviewed does not allow either the country being reviewed or the countries reviewing the scope for a focused interactive discussion. Making such reforms in the HRC will enable it to become the main body under the UNGA for human rights issues. This, in turn, will mean that any concern on human rights issues by UN member states should be raised in the HRC, and not in the UNSC, which has been the practice for more than two decades now, resulting in “perilous interventions” in the words of a distinguished Indian envoy to the UN.
While these three priorities should engage the UN in 2018, the fact that the world is impacted by violent conflict and degrading poverty will ensure that “securing” the peace will have to precede “sustaining” the peace. The experience of multilateral diplomacy over the past seven decades has shown that to sustain peace, the focus has to be on resolving disputes peacefully, as set out in Chapter Six of the UN Charter. Any optimism about the success of the UN to become “fit for purpose” must be based on the convergence of the efforts of the UN Secretary General and the UNGA for preventive diplomacy, giving primacy to the diplomacy of peace over the diplomacy of war.
(Asoke Mukerji is a former Ambassador and Permanent Representative of India to the United Nations in New York. He can be reached at 1955pram@gmail.com)
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