Kulbhushan Jadhav Case: The Unexplored Side
May 2017 has been the most celebrated month out of the initial months of the year by the Indian populace. The reason for the celebration is in itself a huge moment of pride for every Indian citizen, as India successfully won the case against Pakistan before the legal organ of the United Nations, i.e., The International Court of Justice. However, there were a lot more areas which were probably left unexplored with respect to the technicalities of International Law. To put it in simpler words, Pakistan had a very strong case against India and would have easily won had it not been for the incompetence and the incapability of the Pakistani counsels and agents to convince the bench. The present article is just a reflection of the legal point of view from both the sides and what the approach should have been towards the whole situation.
The case revolves around an Indian citizen, named Kulbhushan Jadhav, who was captured by the Pakistani Counter-terrorism forces on the Iranian Border for the charges of sabotage and terrorism. It was claimed by the Pakistani army that Mr. Jadhav happens to be an agent, working for the Intelligence Wing of the
Republic of India, i.e., The Research and Analysis Wing (R.A.W.). He was captured by the Pakistani forces from a place called Saravan, which is in close proximity to the Pakistan-iran Border. After a couple of days of his arrest, the Indian High Commissioner to Pakistan was summoned by the Pakistani Authorities with respect to Jadhav’s illegal entry into the Pakistani territory and his active involvement in subversive and terrorism activities in Karachi and Balochistan, which was followed by a press release related to the matter. India, in response to the Pakistani statements, clearly denied Jadhav’s connection with the Indian Government on the ground that he retired from the Navy in 2002. However, the most shocking incident was the denial of consular access to India, which further became the ground for filing of the petition by India. After a few days, the Pakistani authorities released a video in which Jadhav was seen confessing his crime and admitting that he is an operative of the R.A.W. Pakistan refused to extradite Jadhav to India under any circumstances, to which India took a serious note stating that there was an evident deviation from the international practice from the side of Pakistan with respect to the treatment given to foreign nationals in its custody. On April 10, 2017, the Pakistani Military Court found Jadhav guilty of sabotage and espionage and accordingly announced that he would be hanged. The decision was followed by India slamming the decision and sending a demarche to the Pakistani High Commissioner to India, Mr. Abdul Basit, stating that the Pakistani Authorities had kidnapped Jadhav and the entire trial against him is ridiculous as there is no evidence against him. This move resulted in tensions between the two South Asian countries. India subsequently approached the International Court of Justice seeking provisional measures to be taken in this case.
The president of the ICJ, His Excellency Ronny Abraham, announced that the Court, under the power given to it by Article 74(4) of the ICJ Rules, had asked Pakistan not to take any sort of action with respect to Jadhav’s execution.
Article 74 of the ICJ Rules of Court, 1978 states that:1. A request for the indication of provisional measures shall have priority over all other cases.
2. The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency.
3. The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it. The Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings. 4. Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.
As per the other provisions of this Article, the Court realised that the case pertains to an urgent situation and hence, decided to conduct the public hearing on May 15, 2017. At the public hearing which took place in the Peace Palace, The Hague, India requested the following along with its application for filing of the case:1. “a relief by way of immediate suspension of the sentence of death awarded to the accused. 2. a relief by way of restitution in integrum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36, paragraph 1 (b), and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention, and
3. Restraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan. 4. if Pakistan is unable to annul the decision, then this Court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian National forthwith.” Article 36(1) of the Convention states:1. “With a view to facilitating the exercise of consular functions relating to nationals of the sending State: • Consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; • if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
• Consular officers shall have 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. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.” Now, as per the provisions laid down in this Article, it is mandatory for the host state to grant the consular officials the right to visit and talk to any person of the sending state who is in custody, prison or detention. India claims that this provision has been violated by the Pakistani authorities as the Indian officials were denied consular access to visit Kulbhushan Jadhav while he was in custody. As regards the question as to whether the International Court of Justice has jurisdiction to adjudicate upon the case, India very smartly chose to approach the court under the ambit of Art. 36(1) of the Rome Statute of the International Court of Justice instead of seeking relief under Art. 36(2), because of the strong reservations that India has pertaining to taking disputes to a third party. Article 36(1) of the Statute states:“The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”
Making an approach under this provision means that India invoked Article 1 of the Optional Protocol to the Vienna Convention on Consular Relations, to which both India and Pakistan are State Parties. Article 1 of the Optional Protocol states that:- “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.” This clearly forms the legal basis of Court’s jurisdiction in the matter, however, this does not take away Pakistan’s chance to raise objections during the preliminary phase with respect to the court’s jurisdiction, something which was absent in the actual scenario. The proceedings that took place initially were conducted to take provisional measures so that the immediate interests of both the parties were fulfilled. However, after that was over, and prior to the commencement of the merits phase of the case, Pakistan did have a very strong chance of contesting against the substantive jurisdiction of the court during the preliminary objection phase. But the fact that there is a presence of direct jurisdiction clause in the Optional Protocol, a low threshold and an urgency, the court accepted India’s contention that it has a substantive jurisdiction over the matter. Validity of the Agreement on Consular Access The best part of the entire case was not the jurisdiction phase, but the rise of a complication during the merit phase. India’s entire case was based on the argument of the violation of the Vienna Convention by Pakistan, however, the Pakistani agents strongly relied on the Agreement on Consular Access, signed between the two countries in May, 2008, during the Composite Dialogue which took place in Islamabad, Pakistan. This bilateral agreement was signed in furtherance of the aim of providing humane treatment to nationals of either country. The agreement has certain provisions which allow both the nations to notify each other in case their citizen is arrested in the other country and allowing consular access for the same. However, clause (vi) of the Agreement states that:- “In case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits.” The presence of this particular clause acts as an exception to the Vienna Convention on Consular Relations, 1963, and eventually gives discretion to both the states to deny consular access if the matter pertains to its security. This is exactly what Pakistan did. It denied India consular access because according to them, Kulbhushan Jadhav was a R.A.W. agent who illegally entered into Pakistani territory to carry out subversive activities. However, India tried to do away from this Bilateral Agreement on the ground that the said agreement is not registered with the United Nations, and hence, cannot be relied upon. And as per Article 102(2) of the Charter of the United Nations, no party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of Article 102 may invoke that treaty or agreement before any organ of the United Nations. But this does not render the Bilateral Agreement invalid at all. Both the parties, especially Pakistan, still had a full chance of getting it registered with the United Nations so that the validity isn’t questioned. The International Court of Justice, in the Maritime Delimitation and Territorial Questions between Qatar and Bahrain, did not object to the registration application which was filed by the Qatari authorities after the commencement of the case. It even stated that non-registration or late registration, on the other hand, does not have any consequence on the actual validity of the agreement, which remains no less binding upon the parties. So even though the ICJ judgements are not binding upon the ICJ itself, they definitely hold a lot of persuasive relevance.
To interpret it in a more feasible manner, it is important for us to consider the Vienna Convention on the Law of Treaties, which is an integral document when it comes to the interpretation of the treaties. First of all, Pakistan was well within its rights to decide against Kulbhushan Jadhav on the basis of merits and denying consular access to the Indian officials as per clause (vi) of the Bilateral Agreement. By applying Article 30(3) and 30(4) of the VCLT in the present situation, it may be concluded that there was no express obligation upon Pakistan to allow the consular access in the first place. Secondly, the application of Article 26 of the VCLT becomes necessary at another important juncture. Article 26 states:- “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” The International Court of Justice, in the Gabcikovo-nagymaros case and several other cases, has held that the intention of the state parties at the time of the conclusion of the treaty must prevail every time. Hence, the fact that there was a non-registration of the Bilateral Agreement becomes irrelevant as both the countries have been relying upon this document since many years, and the intention was also bonafide. Additionally, a closer scrutiny of the workings of Article 102 of the Charter of the United Nations is of great significance. The word that has been used is ‘may’ instead of ‘shall’, thus not making it obligatory or mandatory upon the party invoking the agreement in the first place. Unfortunately, even though there were a lot of arguments from the Pakistani side which would have led to a strong case against India, and which would also have ended the case at the jurisdiction phase itself, none of these were actually argued and contended by the Pakistani counsels and agents before the Hon’ble court. This shows the lack of commitment and determination from the side of Pakistan with respect the entire case. In my view, India never would have won it had there been a proper interpretation of international law and other relevant things, but as they say, everything that happens is written in our destinies and everything happens for good. May be, the good has already happened, because at the end of the day, a man’s life is saved, and who knows, may be God has something for us lying in the future as well!
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