Analysis: ICJ judgement on Kulbhushan Jadhav

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To understand the Kulbhushan Jadhav case in the International Court of Justice (ICJ) we have to look at the chronological events that took place in Pakistan and then eventually landed up in the ICJ. Kulbhushan Jadhav was a 49-year old man who was a retired Indian Navy officer, who was further sentenced to a death penalty by the Military Court of Pakistan on the charged of “Espionage and Terrorism” after a closed trial in April 2017. The death sentence invoked a sharp reaction in India. India then took up the case to the ICJ and the verdict was announced 5 months after the Hon’ble court heard the oral submissions from both India and Pakistan on 21 February 2019. It took approximately two years and two months for the proceedings to complete in the ICJ.

The Foreign Ministry spokesperson of Pakistan said in a statement that Pakistan has “fully complied” with the judgment of ICJ in the case. India’s lead counsel, Mr Harish Salve asserted that New Delhi had hoped it would be able to induce Islamabad through “back channel” to let go the Indian death-row convict. The judgment of ICJ said that Pakistan must tackle “effective review and consideration” of the conviction and the sentencing of Kulbhushan Jadhav and to also grant “consular access” to India without any delay as soon as possible. Mr Harish Salve said in a statement that, “New Delhi had written at least 5 letters to Islamabad, but they keep on denying and it is also possible that India might go to the ICJ again.”

Pakistan claimed that the Security Forces of Pakistan arrested Kulbhushan in the Balochistan province on 3rd March 2016 after he entered from Iran, but India stated that Kulbhushan was kidnapped from Iran where he was due to business transactions after retiring from the Indian Navy.
What is the Kulbhushan Jadhav Case?

The case at hand of India versus Pakistan deals with the violation of Article 36 of the ‘Vienna Convention on Consular Relations’ (hereinafter, VCCR) as alleged by India.

The UN Conference on Consular Relations adopted and enacted the VCCR on 22nd April 1963 which was convened in Vienna, Austria. There were other protocols and treaties adopted and enacted by the conference such as, the Optional Protocol which dealt with the Compulsory Settlement of Disputes, Optional Protocol which dealt with Acquisition of Nationality,  the Final Act and three resolutions which are annexed to the act.

Kulbhushan Sudhir Jadhav was an Indian National who was sentenced to death by a military court in Pakistan after conviction for terrorism and espionage. However, the crux of the dispute between India and Pakistan was the refutation of consular access to Mr Jadhav by the Consular Officers in India and deprivation of his right to seek assistance, which was a clear violation of the Vienna Convention.

The Divulgence and Contact with Nationals of the sending State (here, India) is what the Article 36 of the VCCR talks about. Para (a) declares that “consular officers are free to communicate with nationals of the sending State and to have access to them”. Under para (b), “competent authorities of the receiving State (here, Pakistan) must, without delay, inform the consular post of the sending State if a national of that State is arrested”. This provision also mandates the concerned authority of “the receiving State to inform the person concerned (here, Mr Jadhav) without delay of his rights to ask for assistance”. Consular officers have also been provided “the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.”

Salient features of the judgment

Both India and Pakistan have been the members of the Vienna Convention since 28th December 1977 and 14th May 1969, respectively. Both the states were also parties to the “Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes” without any reservations or declarations.

As per the view of the Court, the dispute going on between the parties scrutinizes the question of ‘consular assistance’ of the arrest, detention, trial and sentencing of Mr. Kulbhushan Jadhav. The State of Pakistan has not challenged that the dispute at hand is related to the elucidation and implementation of the Vienna Convention. The Court has also observed that its jurisdiction in the case at hand comes about from the Article 1 of the ‘Optional Protocol’ and therefore does not extend to the ascertainment of breaches of International Law Obligations apart from those in the Vienna Convention. Considering the aforementioned, the Court observes that it has a legitimate jurisdiction as under Article 1 of the Optional Protocol to take into consideration the claims of the State of India on violations of the Vienna Convention as alleged. Furthermore, the State of Pakistan has also raised three objections to the allowed application of its counterpart. These objections were, Abuse of Power, Abuse of Rights and Unlawful Conduct, after which, and the court concluded that the three objections raised by Pakistan must be dismissed and the Application of India must be admissible.

In addition to this, the court also held that Pakistan has acted in breach of the obligations under the Article 36 of the Vienna Convention, firstly, by not notifying Mr. Kulbhushan Jadhav about his rights under Article 36(1)(b), secondly, by not notifying India, about the arrest and detention of Mr. Kulbhushan Jadhav and lastly, by denying access to Mr. Kulbhushan Jadhav by the Consular Officers of India, which was contrary to their rights, among other things, to devise his legitimate representation. The Court has observed that these violations by the State of Pakistan constitute wrongful acts internationally.

Developments after judgment

During the hearing of the case, Pakistan offered a meeting to wife and mother of Mr Kulbhushan Jadhav citing humanitarian grounds and later allowed them to meet on 25th December 2017. This was certainly done by Pakistan to portray itself as a ‘humanitarian nation’ and get an edge in ICJ where the case was going on during that time as the foreign ministry of Pakistan portrayed the whole gesture as ‘humanitarian’, which came off only after India moved to ICJ.

Finally, after the judgment in July 2019, the Pakistan Government agreed to grant consular access to Mr Kulbhushan Jadhav and on 2nd September 2019 Indian envoys met with Mr Jadhav for about 2 hours. After which Indian alleged that Mr Jadhav was under extreme pressure and was forced to narrate a parrot version of accounts which will help Pakistan in strengthening its case. Thereafter, Pakistan Government clarified on 11th September 2019 that it will not grant second consular access to Mr Jadhav.

Thereafter, on 11th May 2020 Pakistan Government’s spokesperson said that Pakistan has ‘fully complied’ with the judgment of the ICJ after the attorney representing India, Mr Harish Salve pointed out certain mistakes on the part of Pakistan.

The ICJ Judgment has been portrayed as a big win for both of the nations. However, the judgment is more of a mixed bag, where expressly it cannot be said that which country won and which one lost, but what surely can be said is that it’s a victory of International Law.

Critical analysis

The ICJ delivered the judgment with an overwhelming majority of 15:1. The only dissenting judge was an Ad-hoc Judge Jilani. In his dissenting judgment, Justice Jilani has relied on various instances to come upon his conclusion which was not even remotely concerning the questions of law in the case at hand before the ICJ. He was rather dealing with the questions of law and discussing International Law concerning those questions dwelled upon the issues like the confession of Mr Jadhav, Kashmir issue and other political issues to substantiate his stance.

The judgment delivered by majority dealt majorly with the question of violation of Article 36 of the Vienna Convention. India argued for a very wide remedy under Article 1 of the Optional Protocol, to which the court rightly observed that its “jurisdiction is limited to the interpretation or application of the Vienna Convention and does not extend to India’s claims based on any other rules of the International Law”. The ICJ judgment was well-balanced judgment where the courts while limiting its interference only till its jurisdiction, given a judgment in best compliance of the International Law.

The judgments were well in line with the previous discourse of ICJ as the remedy granted in the present case was synonymous to the remedies given in the cases of LaGrand and the Avena case which were based on the same question of law. The ICJ called for “review and reconsideration” of the conviction and sentencing of Mr Jadhav by the Pakistani Government as it did in the above-mentioned cases.

The judgment even though negated some of the far-fetched reliefs argued by India must have come off as a relief to the Government of India, as it surely got most of what it was expecting, if not whole.

Conclusion

The experience of previous judgments which were based on a similar question of law as in Kulbhushan Jadhav case was not very jubilant. Earlier the court decided the similar question of law related to the Vienna Convention on Consular Access in La Grand and Avena case where the ICJ granted similar relief of “review and consideration” by the country in violation of Convection. However, the judgment only resulted in little success. Considering these cases, there are chances that this judgment of ICJ will not be implemented in a very promising way.

The reason for the same is that Pakistan still has the discretion to decide in what manner it wants to review Mr Jadhav’s conviction and to secure his Vienna Convention rights as the judgment read as “provide, by means of its choosing, effective review and reconsideration of the conviction and sentence of Mr Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention”. This judgment of ICJ can be regarded as yet another remarkable judgment in the course of International Law.

Author: Anurag Mohan Bhatnagar from National Law University Odisha.

Editor: Harinie.S from Symbiosis Law School Hyderabad.

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