The Kulbhushan Jadhav Case: Summary

The Kulbhushan Jadhav case (India v. Pakistan), July 17, 2019, I.C.J. G.L. No. 168 (International Court of Justice)

By Kavya Shahi

Facts of the Kulbhushan Jadhav case 

On 03.03.2016, Kulbushan Jadhav was arrested by Pakistan. And on 24.03.2016, the military establishments and law enforcement agencies of Pakistan accused Jadhav of being a spy. He crossed over from Iran and was caught in southern Pakistan, i.e. Balochistan. In the meanwhile, Pakistan also shared a video, wherein Jadhav is seen confessing to the allegations leveled against him.

On 23.01.2017, The external affairs minister of Pakistan sent a “Letter of Assistance for Criminal Investigation against Indian National Kulbhushan Sudhair Jadhav” to the High Commission of India in Islamabad. But no response was received. On 29.03.2016, India claimed all the allegations leveled against Jadhav to be baseless as he is a retired naval officer. And was illegally kidnapped by the Pakistani authorities from Iran.

As many as 16 requests from New Delhi for Jadhav's access were turned down by Pakistan over the course of 1 year. On 10.04.2017, the Pakistani Military Court sentenced Jadhav to death on account of “Espionage and Terrorism.”

On 14.04.2017, the Indian government demanded an authentic copy of the charge – sheet. And verdict of the military court of Pakistan which sentenced Jadhav to death and further requested Consular access for Jadhav. On 08.05.2017, aggrieved by the stance taken by Pakistan and lack of cooperation shown by them, in granting Consular access to Kulbushan Jadhav, India approached the International Court of Justice at the Hague Netherlands against the decision of Pakistan’s Military Court that awarded a death Sentence to Mr. Jadhav. On the very next day, the ICJ stayed Jadhav’s execution.

After much deliberations and negotiations between New Delhi and Islamabad, on 10.11.2017, Pakistan allowed the visit of Mr. Jadhav’s wife on ‘humanitarian grounds ‘and further extended the offer for his mother as well. It also assured India of the safety of the visitors and their free movement.

Issues

“The issues that arise for consideration of this Court are:” 

1. Whether the sentence awarded by Pakistan’s Military Court is illegal?
2. Whether Pakistan has violated the standards laid down by the Vienna Convention on Consular Relations (VCCR) and International Covenant on Civil & Political Rights (ICCPR) by not granting Consular access to Kulbushan Jadhav?
3. Whether or not the ICJ had jurisdiction to preside over the present matter and entertain an application therein?
4. Whether the Vienna Convention on Consular Relations were implicitly inapplicable in cases of terrorism or espionage?
5. Is“Pakistan’s demand correct that India should assist in the investigations of the case concerning Jadhav which will serve as a precondition to granting consular access to India pursuant to Article 36 acceptable or is the obligation under Article 36” unconditional?
6. Whether the 2008 bilateral agreement entered into between India and Pakistan supersede the already existing Vienna Convention on Consular Relations?
7. Whether the rights enshrined in the bilateral agreement limit the applicability of VCCR?

The Arguments of the both sides on these issues are :- 

Arguments from India

1. The Counsels, appearing on behalf of the Republic of India, stated that the military court of Pakistan had sentenced Kulbushan Jadhav to death and accordingly our request for granting consular access to Jadhav is a matter of right of every individual under Article 36(1) of the VCCR and Pakistan has denied that more than 16 times and therefore is a clear violation of article 36(1) of the VCCR from Pakistan.
2. The counsels further submit that Article 73(2) of the VCCR, provides that “nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof”, and therefore under no circumstances, a bilateral agreement entered into between India and Pakistan will take supremacy over the already established provisions of VCCR and therefore the provisions of VCCR will take supremacy and will be applicable in the present matter.
3. The obligations “under the VCCR may be enhanced or clarified by bilateral treaties, but cannot be diluted or undermined, as affirmed by authoritative interpretation of the VCCR and general principles of treaty law, including Article 41(1) of the Vienna Convention on the Law of Treaties.
4. Also, the reservations stated in Article 36(2) of the ICJ statute, is independent of and not a mere prerequisite to invoking the authority under Article 36(1) of the ICJ Statute, and accordingly, VCCR is the rightful authority to be referred to in matters of consular access.

Arguments from Pakistan side

1. The VCCR doesn’t have the applicability and the requisite jurisdiction to adjudicate upon cases of espionage and terrorism mainly due to the inherent nature and heinousness of such crimes.
2. A bilateral agreement has already been entered into between India & Pakistan, back in 2008, where it’s stated in plain simple words that in cases of “arrest, detention or sentence made on political or security grounds”, the states are free to decide the merits of the case based on their own discretion. Also since the 2008 bilateral agreement already exists, it overrides the applicability of the VCCR.
3. The reservations made under Article 36(2) of the ICJ statute are almost equally admissible and acceptable as those of cases under Article 36(1) of the statute are. Therefore if there exists a treaty or an agreement, which has force of law, it ipso facto becomes a valid treaty or an agreement adhered to by the parties.
4. Therefore India cannot invoke the jurisdiction of Article 36 of the VCCR in the present matter because of the existence of the 2008 bilateral agreement already entered into by the parties.

Judgment of the Kulbhushan Jadhav case 

The ICJ delivered the judgment with an overwhelming majority of 15:1 ratio. As per the court’s observation, the main dispute between both countries is about ‘consular assistance’ of arrest, detention, trial, and sentencing of Kulbhushan Jadhav.

Both the countries besides being the members of VCCR are also members of “Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes” without any reservations or declarations.  The court had observed that the jurisdiction of the case comes about from Article 1 of the “Optional Protocol”. And does not breach any of the international treaties’ asides from VCCR. Therefore, it has legitimate jurisdiction under Article 1 of the Optional Protocol as alleged by the State of India regarding the violation of VCCR.

The objections raised by the Pakistan regarding the abuse of power, rights and unlawful conduct by India were dismissed. And India’s application was admissible. Further, the court also held that Pakistan has acted in breach of the agreement and failed to fulfill its obligations as per Article 36 of VCCR.

Pakistan had failed to inform Jadhav about his rights under Article 36(1)(b), by not informing India about his arrest and detention. And lastly by denying the access of Jadhav by the Consular Officers of India. Hence, the court has found Pakistan to be in violation of international laws.

With respect to India’s demand of “restitution in integrum”, The Court recalls that “it is not to be presumed . . . that partial or total annulment of conviction or sentence provides the necessary and sole remedy” in cases of violations of Article 36 of the Vienna Convention (ibid., p. 60, para. 123). Thus, the Court finds that these submissions made by India cannot be upheld.

Legal Analysis

This case has stood as an exemplary instance of exploration of new horizons for legal interpretation of International documents. However, the expedition of justice has been time consuming which in itself, is a deterrent to growth of realm of law. On an analysis of the case, one could equate the understanding of the Vienna Convention with the primordial aspect of jurisdiction that forms the base of every legal case. Further on referral to consular assistance to be given to Mr. Jadhav, the Court observed that there was an essential dispute concerning the consular assistance with respect to arrest, detention and trial of Mr. Jadhav. 

Jurisdiction:

The Court stated that the evidence of no communication or consular access provision by Pakistan would form a ground for extracting necessary jurisdiction.10 On satisfying the requirement of jurisdiction with such observation, the Court mandated clarifications on questions of law and fact, thereby admitting the dispute under the Vienna Convention11 and held that the alleged acts of terrorism or espionage cannot exclude the scope of jurisdiction of the Court under the Convention. An important observation made was that a bilateral agreement cannot possibly limit jurisdiction of the Court under the ICJ statute or under Vienna Convention.

Protection of Rights:

As asserted by India, the rights pertinent to provisional measures are that of basic principles of consular protection14 and such rights can be claimed by all States under the Convention when a national is detained or imprisoned. The Court observed that at the provisional measures stage, it is not required to determine definitively whether the rights, which India wishes to see protected, exist. It only needs to decide whether these rights are plausible. Further, this case stood as an example for preservation of human rights  after which Pakistan agreed to let the family of Mr. Jadhav meet him.

The causal link between order of provisional measures and the rights of Parties involved must be proved to show irreparable prejudice that could affect the case.18 This could be a parallel with the way Pakistan treated Mr. Jadhav by sentencing him to death penalty without providing him an opportunity to be heard, therefore, violating principles of natural justice and causing irreparable prejudice. Lastly, the matter of urgency in provisional measures as seen in the LaGrand case, notes that time is essential in an application seeking provisional measures.

Conclusion

In the instant matter, the researcher clearly agrees and concurs with the reasoning and judgment of that of the Honourable International Court of Justice as there are many substantial points to be appreciated.  Also, there are a few grounds given on which the researcher does refuse to agree with the view taken by the Court. A counterbalanced view of both the opinions and findings are to be presented here conveniently. 

Edited by Megha Jain