Kulbhushan Jadhav Case
In this case Kulbhushan Jadhav was arrested in March 2016 by Pakistani security forces inBalochistan province after he reportedly entered from Iran. He was sentenced to death by a Pakistani military court on the charges of espionage and terrorism in April 2017. India has always maintained that Kulbhushan Jadhav is not a spy, and that Pakistan should provide counsellor access to him as his case pertains to abduction from the Iranian territory. In May 9, 2018, ICJ has stayed his death sentence after India had moved a petition before the UN body to seek justice for him, alleging violation of the Vienna Convention on Consular Relations by Pakistan. During the hearing in the case on February, 2019, India said Pakistan's continued custody of Indian national Kulbhushan Jadhav without any consular access should be declared "unlawful" as it was an egregious violation of the Vienna Convention. Harish Salve, who is representing India and Kulbhushan Jadhav in the ICJ, said Pakistan was using the issue of Kulbhushan Jadhav as a "propaganda tool" without even following the due proper procedure.
India had demanded consular access to Jadhav under the rules of the Vienna Convention on Consular Relations of 1963. The Vienna Convention on Consular Relations is an international treaty that defines consular relations between independent states. A consul, (who is not a diplomat) is a representative of a foreign state in a host country, who works for the interests of his countrymen.
Article 36 of the Vienna Convention states that foreign nationals who are arrested or detained in the host country must be given notice without delay of their right to have their embassy or consulate notified of that arrest. If the detained foreign national so requests, the police must fax that notice to the embassy or consulate, which can then verify the person. The notice to the consulate can be as simple as a fax, giving the person's name, the place of arrest, and, if possible, something about the reason for the arrest or detention.
Importance of consular access for India in Jadhav case
Jadhav was awarded death sentence after a secret trial hence there are chances of trial being fake or sham.If India gets consular access to Jadhav, it can demolish the Pakistani case by advising Jadhav on the various aspects of the case and can get access to Jadhav's real version of events leading to his arrest.
INTERNATIONAL COURT OF JUSTICE
General List No. 168
17 July 2019
(INDIA v. PAKISTAN)
Arrest and detention by Pakistan of an individual named Mr. Kulbhushan Sudhir Jadhav — Mr. Jadhav accused of involvement in espionage and terrorism activities — Criminal proceedings instituted — Mr. Jadhav sentenced to death by military court in Pakistan.
Jurisdiction of the Court
Dispute relates to interpretation and application of Vienna Convention on Consular Relations — The Court has jurisdiction under Article I of Optional Protocol to Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.
Admissibility of India’s Application.
First objection of Pakistan to admissibility — Alleged abuse of process — No basis to conclude that India abused its procedural rights when it requested indication of provisional
measures — Articles II and III of Optional Protocol do not contain preconditions to the Court’s exercise of its jurisdiction — First objection to admissibility rejected.
Second objection of Pakistan to admissibility — Alleged abuse of rights — Contention by
Pakistan that India failed to prove Mr. Jadhav’s nationality — No room for doubt that Mr. Jadhav
is of Indian nationality — Other arguments advanced by Pakistan based on alleged breaches of
India’s international obligations under Security Council resolution 1373 (2001) — Allegations to
be examined below as part of the merits — Second objection to admissibility rejected.
Third objection of Pakistan to admissibility — India’s alleged unlawful conduct — Pakistan’s objection based on “clean hands” doctrine rejected — No explanation how allegedunlawful conduct by India prevented Pakistan from providing consular access — Pakistan’sobjection based on principle of “ex turpi causa non oritur actio” cannot be upheld — Principle “ex injuria jus non oritur” inapposite in present case — Third objection to admissibility rejected.
India’s Application admissible.
Applicability of Article 36 of Vienna Convention.
Alleged exception based on charges of espionage — No reference in Vienna Convention to
cases of espionage — Article 36 does not exclude from its scope persons suspected of espionage — Consular access expressly regulated by Article 36, and not by customary international law — Relevance of 2008 Agreement on Consular Access between India and Pakistan — No restriction on rights guaranteed by Article 36 in 2008 Agreement — 2008 Agreement constitutes a subsequent agreement within meaning of Article 73, paragraph 2, of Vienna Convention — Point (vi) of 2008 Agreement does not displace obligations under Article 36 — None of arguments concerning applicability of Article 36 of Vienna Convention can be upheld — Vienna Convention applicable in present case. Alleged violations of Article 36 of Vienna Convention. Alleged failure of Pakistan to inform Mr. Jadhav of his rights under Article 36, paragraph 1 (b) — Allegation not contested by Pakistan — Mr. Jadhav not informed of his rights — Finding that Pakistan breached its obligation to inform Mr. Jadhav of his rights under Article 36, paragraph 1 (b). Alleged failure of Pakistan to inform India, without delay, of arrest and detention of Mr. Jadhav — Pakistan under obligation to inform India’s consular post of arrest and detention of Mr. Jadhav — Notification some three weeks after his arrest — Finding that Pakistan breached its obligation to inform India “without delay” of Mr. Jadhav’s arrest and detention.
Alleged failure of Pakistan to provide consular access — Consular access to Mr. Jadhav not
granted by Pakistan — Finding that Pakistan breached its obligations under Article 36,
paragraph 1 (a) and (c) by denying consular officers of India access to Mr. Jadhav.
Abuse of rights.
No basis under Vienna Convention for a receiving State to condition fulfilment of its obligations under Article 36 on the sending State’s compliance with other international law obligations — Pakistan’s contentions based on abuse of rights rejected.
Pakistan under obligation to cease internationally wrongful acts of a continuing character — Mr. Jadhav to be informed without further delay of his rights — Indian consular officers to be given access to him and be allowed to arrange for his legal representation. Appropriate remedy is effective review and reconsideration of conviction and sentence of Mr. Jadhav — Full weight to be given to the effect of violation of rights set forth in Article 36 — Choice of means left to Pakistan — Pakistan to take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation — Continued stay of execution constitutes condition for effective review and reconsideration of conviction and sentence of Mr. Jadhav.