ANALYSIS: ICJ JUDGEMENT ON KULBHUSHAN JADHAV
On 17th July 2019, The International Court of Justice (ICJ) pronounced its verdict in the Kulbhushan Jadhav case. With a ratio of 15:1, the judgement was pronounced in India's favor. The court asserted that Pakistan had breached the Vienna convention signed in 1963, by denying the right of consular access to India.
Kulbhushan Jadhav is a retired navy officer of India. He was arrested by Pakistan on 3rd March 2016 on the suspicion that he was a spy sent by India. India received the news on 25th March, which was after a delay of 22 days. India asserted that Jadhav, who was carrying on a business in Iran after retirement, was abducted and falsely charged on 'terrorism and espionage.' In April 2017, the military court of Pakistan awarded death sentence to Jadhav. After this judgement by the Pakistan court, India approached ICJ asking for consular access to Jadhav and challenging the verdict by the Pakistan court.
Senior Advocate Harish Salve was the lead counsel in the case from India at the Hauge based ICJ. In July last year, when the ICJ pronounced its judgement, it asked Pakistan to 'review and reconsider' its decision on death sentence and allow India access to Kulbhushan without any delay. However, in an online meeting this year, Harish salve from London said that India needs to decide as to whether it wants to go back to ICJ for consequential remedies as Pakistan has failed to comply with the judgement. To this Pakistan Spokesperson, Aisha Farooqi replied that Pakistan has complied with the judgement and is firm on continuing to do so as the case proceeds further. She also stated that they have granted consular access and are reviewing the death sentence.
WHAT IS THE KULBHUSHAN CASE?
Kulbhushan Jadhav is an Indian retired navy officer who is on death row in Pakistan. His father is a retired Mumbai police officer, his family resides in Mumbai and includes his two children and wife. He is charged on the grounds of sabotage and espionage activities against Pakistan at the command of the Indian Intelligence agency. India refuses to accept the allegations.
Pakistan claims that Jadhav was arrested by Pakistan officials in Balochistan on 3rd March 2016, where he entered using a fake passport, which showed his name as Hussain Mubarak Patel. While India maintains that he was abducted from Iran, where he was carrying on business after he was retired from the Indian navy. India got the news about his detention on 25th March, which was after 22 days from detention. After a month of his arrest, a video was released by Pakistan. Jadhav was shown confessing that he's a spy from India and had been carrying out activities in Balochistan and Karachi, still working with the Indian navy. The video was condemned by India.
When Pakistan denied consular access to Jadhav under article 36 of the Vienna Convention and its military court sentenced him to death, India approached ICJ against Pakistan's judgement and requested Jadhav's release. On 17th July 2019, the ICJ allowed consular access to Jadhav but denied his release. It ordered Pakistan to reconsider the death sentence. Consular access was allowed by Pakistan, and the Indian officer met Jadhav in Pakistan on 2nd September 2019.
SALIENT FEATURES OF THE JUDGEMENT-
ICJ pronounced the judgement in India's favor with a ratio of 15-1. Some of the salient features of the judgment are-
Admissibility- The court denied Pakistan's objection on the admissibility of the matter, based on Article I of the Vienna convention whereby compulsory settlement of disputes to the Vienna Convention on consular access of 24th April 1963 is provided. The court in a ratio of 15-1 said that the claim of non-admissibility by the Islamic Republic of Pakistan is not valid, and India can access the court.
Breach of Obligation by Pakistan- The court said that Pakistan had breached its obligation incumbent upon it by Article 36 paragraph 1(b). It did not inform Kulbhushan about his right under article 36 and thereby deprived India of its right to consular access to the Individual Concerned.
Deprived India of its Right- By not allowing India to have communication with Jadhav and denying access, Pakistan deprived India of its right to meet Jadhav and arrange Legal Representative for him and thereby breached Article 36, paragraph 1 (a) and (c) of Vienna Convention on Consular Access.
Pakistan under Obligation to inform Jadhav without any delay about his right under Article 36 of the Vienna Convention.
Review and Reconsideration- The court observes that Pakistan needs to review its decision, through its choosing, to ensure that weight is given to the violation under article 36 while taking into consideration article 139, 145 and 146 of the Vienna convention.
Essential stay- The court said that the stay on execution is essential for the effective review and reconsideration by Pakistan.
DEVELOPMENTS AFTER JUDGEMENT-
Indian counsel in the Kulbhushan case on 3rd may 2020 said that they are hoping to persuade Pakistan to release Jadhav from the backchannel on humanitarian grounds or whatever they want to call it, we want them to let him go. Salve commented that India might consider going back to ICJ due to Pakistan; However, Pakistan denied the allegations made by salve and said they are baseless and inaccurate. Pakistan's spokesperson said that it is 'regrettable' that salve made statements that misrepresent facts, adding that Pakistan has complied with all international obligations.
Pakistan on 14th may said that it is taking necessary steps to review the case as per the directions of ICJ and has already granted consular access to India.
`India and Pakistan share this long history. Amidst this, when a retired Indian officer was arrested by Pakistan on espionage charges, chaos took place. While Pakistan says that Jadhav is a spy, India maintains its stand that he was abducted by them from Iran, where he carried business activities post-retirement. When the Pakistan court sentenced Jadhav to the death penalty, India decided to approach ICJ. India argued at ICJ that it had been denied consular access and was notified about the arrest three weeks later; it also requested that Kulbhushan be released by Pakistan. While ICJ directed Pakistan to review its decision, it denied India's request to order the release of Kulbhushan. ICJ acknowledged the fact that Pakistan violated the International norms of consular access and did not inform Jadhav about his rights; Conviction and detention of Jadhav are not violative of Article 36 of the Vienna convention as per ICJ. Appeals and Review petitions are not allowed on ICJ verdicts. After the verdict, Pakistan has assured that it will comply with ICJ's judgement. On 2nd September, Pakistan allowed consular access to India, and an Indian diplomat met Jadhav at the Pakistan jail for an hour.
The entire proceeding was recorded in the presence of Pakistan officials; India contended that Jadhav seemed to be under immense pressure. India is demanding independent access to Jadhav because capital punishment was awarded to him in a secret trial; therefore, any information from Jadhav can help India.
The Vienna Convention was signed to regulate diplomatic relations. A consular access treaty was also signed in the year 1963. The treaties were formed under the auspices of the United Nations. Once India is granted Independent access, it can arrange the best legal service for Jadhav allowed under Pakistan laws since the Pulwama attack tensions have been there between the two countries. After India struck down Article 370, new tensions have developed. Pakistan, by holding a free and fair trial, can ease the tensions. If a civil court conducts the trial, help can be provided, but if the military court continues to govern it, little can be done. If Pakistan denies following ICJ's verdict, India might severe diplomatic relations and use International pressure, but all these measures must be used cautiously to maintain peace.
The ICJ has given its verdict. Both countries have assured to follow the judgement. While Pakistan granted consular access to India, it was not entirely free from control. From the statements delivered by Harish salve, it seems that India might approach ICJ once again to remind Pakistan about the judgement. In reply to statements given by Advocate Salve, Pakistan's spokesperson said that the statements are false and misrepresent the facts, and assured that Pakistan is following up with the verdict and will continue to abide by further pronouncements as the case proceeds. India's co-operation would be required to ensure justice. Thus both countries need to co-operate to conclude mutually.
Hidayatullah National Law University, (HNLU) Raipur