India vs Pakistan: The Kulbhushan Jadhav case

Facts of the Case

On 3^rd March, 2016 Kulbushan Jadhav was arrested by Pakistan of being an accused as a spy. On 23.01.2017, a “Letter of help for Criminal Investigation against Republic of Indian National Kulbhushan Sudhair Jadhav” has been sent to the Embassy of India in Islamabad. On 29.03.2016, Republic of India claimed all the allegations leveled against him to be idle as he's a retired officer and was illicitly kidnaped by the Pakistani authorities from Iran.

 Additionally to the current, the Indian government sought-after diplomat access for him from Islamabad that was denied. On 10.04.2017, the Pakistani judicature sentenced him to death on account of “Espionage and coercion.”

On 14.04.2017, the Indian government demanded an authentic copy of the charge – sheet and finding of fact of the judicature of Pakistan that sentenced Jadhav to death. On 08.05.2017, aggrieved by the stance taken by Pakistan, in granting diplomatist access to Kulbushan Jadhav, India approached the ICJ at The Hague Netherlands against the choice of Pakistan’s judicature that awarded a death Sentence to Mr. Jadhav. On the terribly next day, the ICJ stayed Jadhav’s execution.

After abundant deliberations and negotiations, on 10.11.2017, Pakistan allowed the visit of Mr. Jadhav’s married woman on ‘humanitarian grounds’ and any extended the provide for his mother in addition, it additionally assured Bharat of the protection of the guests and their free movement. In shell, Kulbhushan Sudhir Jadhav was a 50-year-old retired Indian Navy Officer who was sentenced to executing by the judicature of Pakistan.

Issues-

1. Whether the sentence which was awarded by the Pakistan’s Military Court was legally right?

2.  Whether the Vienna Convention on Consular Relations and International Covenant on Civil & Political Rights were being violated by Pakistan?

3. Whether the 2008 bilateral agreement entered into between India and Pakistan supersede the already existing Vienna Convention on Consular Relations?

Arguments (Republic of India)

1. The counsel stated that the consular access is a matter of right and it was being denied, so it was the clear violation of Article 36(1) of VCCR from Pakistan.

2. The counsel further stated 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” so nothing will supersede over VCCR.

3. The obligations under the VCCR is also increased or processed by bilateral treaties, however can't be diluted or undermined, as Affirmed by authoritative interpretation of the VCCR and general principles of written agreement law, together with Article 41(1) of the Vienna Convention on the Law of Treaties. Also, the reservations expressed in Article 36(2) of the ICJ statute, is freelance of and not a mere necessity to invoking the authority below Article 36(1) of the ICJ Statute, and consequently, VCCR is that the rightful authority to be observed in matters of diplomatic building access.

Arguments (Islamic Republic of Pakistan)

1. The VCCR doesn’t have the relevance and also the requisite jurisdiction to adjudicate upon cases of spying and coercion in the main because of the inherent nature and barbarousness of such crimes.

2. A bilateral agreement has already been entered into between Republic of India & Islamic Republic of Pakistan, back in 2008, wherever it’s declared in plain straightforward words that in cases of “arrest, detention or sentence created on political or security grounds”, the states are liberated to decide the deserves of the case supported their own discretion. Additionally since the 2008 bilateral agreement already exists, it overrides the relevance of the VCCR.

3. The reservations created below Article 36(2) of the ICJ statute are nearly equally admissible and acceptable as those of cases below Article 36(1) of the statute ar. so if there exists a accord or associate degree agreement, that has force of law, it ipso facto becomes a legitimate accord or associate degree agreement adhered to by the parties.

4. Therefore Republic of India cannot invoke the jurisdiction of Article 36 of the VCCR in this matter owing to the existence of the 2008 bilateral agreement already entered into by the parties.

Judgment

The ICJ delivered the judgment with an overwhelming majority of 15:1 ratio. 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 three objections raised by the State of Pakistan regarding the abuse of power, abuse of rights and unlawful conduct by the State of India were dismissed and India’s application was admissible.

Analysis

The Court was right in giving its judgment in making Pakistan liable for violating the provisions of VCCR and ICCPR and VCCR will be applicable over that bilateral agreement. The consular access which was being denied to Kulbushan Jadhav was completely baseless; the Court also mentioned this point. 

The Court was correct in its reasoning that Article I of the Options Protocol provides for the jurisdiction of the ICJ to preside over matters concerning the said protocol but the Court did not lay much emphasis upon Article II and III of the Optional Protocol concerning the compulsory settlement of disputes 1963 in the same way they did for the Article I of the same protocol.

The Court did not mention about provisions of the 2008 bilateral agreement as to why the parties can decide the cases on their own merit if there is a threat to the sovereignty, social order and political apparatus of the country.

Neither disputing the validity of the VCCR nor going against its application over and above the bilateral agreement, the only concern stands to be that the Court should have given a plain harmonious reading to the provisions of the bilateral agreement to understand the gist with regards to the same.