Article by Shayan Ahmed
The oral hearings of the Jadhav Case (India v. Pakistan) are all set to take place at the International Court of Justice (ICJ) between 18th to the 21st February, 2019. The proceedings before the Court were instigated by India through a Compromissory Clause found in the Art. 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes, 1963 whereby matters pertaining to the interpretation and application of the convention are to be submitted to the ICJ. Both parties have passed the phase of Provisional Measures.
Some of the issues that came into contention within the phase of Provisional Measures and, something that will also come into question at the stage of merits, revolve around the Agreement on Consular Access between the Government of the Islamic Republic of Pakistan and the Government of the Republic of India (2008 Agreement) between India and Pakistan.
To this effect, the article will focus on the issue of parties not registering international agreements with the UN Secretariat. The 2008 Agreement will be used as a case study to illustrate as to what the potential outcome of the case might be but also as to where the law, in this respect, stands at present.
Art. 102 of the UN Charter requires every international agreement to be compulsorily registered with the UN Secretariat. The 2008 Agreement was signed on 21st May, 2008 and was registered by Pakistan on the 17th of May, 2017 – a decade after the signature and some days after the Order for the Indication of Provisional Measures. Art. 102 of the UN Charter is divided into two paragraphs. The first paragraph requires the parties to register the treaties ‘as soon as possible’. However, the same has not been concretely defined. Interestingly, during the discussions on the provision, it was the Representative of India who was of the opinion that the organ of the organization —UN Secretariat in this case— should possess discretion on whether a particular international agreement has been registered in time. In practice, however, the UN Secretariat accepts agreements for registration irrespective of the length of time the party/parties took to register.
Turning to case law, we also see that in the Aegean Sea Continental Shelf Case a joint press communique which was dated 31st May 1975 was registered on 11th October, 1978. Similarly, albeit in a lesser span of time, in the case of Maritime Delimitation and Territorial Questions between Qatar and Bahrain the agreement was registered six months late. Specifically, the ICJ stated that non-registration or late-registration (as in the case of Pakistan) has no consequence on the actual validity of the agreement, nor is there any bar which requires the parties to register an international agreement after the institution of proceedings. Lastly, in the Corfu Channel Case the Court accepted jurisdiction on the basis of a Special Agreement that had not been registered. The aforementioned caselaw illustrates as to how the Court has taken an extremely lenient position when it comes to the late registration of international agreements.
The interpretations, as enunciated above, are also in line with the second paragraph of Art. 102 of the UN Charter which states, in the form of a sanction, the inability of parties to an international agreement to invoke it before an organ of the United Nations. However, no bar is posed to third parties from invoking such a treaty or an international agreement. The ICJ being the principal judicial organ of the UN (Art. 92 of the UN Charter) is free to take such an agreement into account. The same is a departure from the severe sanction that was codified in the Art. 18 of the Covenant of the League of Nationswhich barred a treaty from possessing a binding character, if the same had not been registered. Therefore, it can be safely concluded that the obligations of the parties to the 2008 Agreement i.e. India and Pakistan to register the agreement has been duly performed by Pakistan and the same being done a decade later will be of no consequence. Consequently, the non-registration of the 2008 Agreement cannot be utilized by India to advance the argument that the agreement is now redundant by virtue of non-compliance with Art. 102 of the UN Charter, as they contended during the phase of the provisional measures.
It is therefore likely that the registration of the 2008 Agreement, albeit after the instigation of the proceedings, will pose no issues before the Court and the same may be taken into consideration by the ICJ at the merits stage.
About the Author: Shayan is currently working as a Research Associate at the Research Society of International Law. He graduated with a First Class in his LLB (Hons.) from the University of London. He has done internships at the International Committee of the Red Cross and the Ministry of Foreign Affairs Pakistan. He has also been published as part of the Research Guide for the International Court of Justice by the Peace Palace Online Library.