Case Study On Kulbhushan Jadhav by: Ritvik Rana
Authored by: Ritvik Rana
Enrollment no: A3211118134
Sec: B
BA.LLB (H)
Sem :9
ABSTRACT
The case of Kulbhushan Jadhav started in March
2016 when Jadhav, an Indian citizen, was arrested and detained in Pakistan. He
was found guilty of terrorism by a military court in Pakistan and given the
death penalty. In the midst of Jadhav's arrest, incarceration, and military trial,
India had asked for consular access. With the idea
and evolution of compulsory jurisdiction as a whole, the writers of this paper
seek to answer the ingenious techniques Pakistan used to avoid the court's
obligatory jurisdiction. The writers have relied on the ICJ ruling and the
reasoning behind it to understand how the court arrived at its decision. Having
learned that a former naval officer in the Indian armed services, an Indian
citizen, has been found guilty of espionage and condemned to death by a
military tribunal in Pakistan. On May 8th, 2017, the Indian government
petitioned the International Court of Justice (ICJ) to rule in opposition to
Pakistan for allegedly destroying the Vienna convention on consular rights.
This is the fourth time that both countries have brought a case against each
other to ICJ. In this study we will analyze the Kulbhushan Jadav case in-depth.
KEYWORDS:Pakistan, ICJ, Article 36, Kulbhushan Jadav, human
rights etc.
CHAPTER1: INTRODUCTION
The case of Kulbhushan Jadhav
started in March 2016 when Jadhav, an Indian citizen, was arrested and detained
in Pakistan. He was found guilty of terrorism by a military court in Pakistan
and given the death penalty. In the midst of Jadhav's arrest, incarceration,
and military trial, India had asked for consular access. Although Pakistan had
permitted Jadhav's mother and wife to see him, they had denied it.When consular
access is denied, the sole recourse for an Indian person abroad is the Vienna
Convention on Consular Relations of 1963. The VCCR and its supplementary
protocol include India and Pakistan as signatory countries. India first went to
the ICJ for help on May 8 of this year. As a temporary fix, the ICJ ordered
Pakistan to stop Mr. Jadhav's execution awaiting the outcome of the case. This
was accepted by India. At long last, on July 17th, the ICJ issued a ruling on
the core issues at stake.[1]
According to Article I of
the VCCR optional protocol, the ICJ ruled that it may hear the case. Where the
VCCR is relevant, the protocol requires the parties to the treaty to resolve
their disputes via mandatory arbitration. As one would expect, Pakistan raised
an objection to the ICJ's consideration of India's plea, but the court
ultimately ruled against Pakistan. When the court finally got to the meat of
the case, things got interesting.
A treaty, the VCCR is
legally binding. Vienna Convention on the Law of Treaties establishes the
standards for interpreting treaties. Even though Pakistan has signed the VCLT,
they have yet to ratify it. Therefore, the ICJ opted to read the VCCR "in
accordance with the established standards of treaty interpretation."
Pakistan claimed that Article 36 of the VCCR, which requires consular access,
should be waived in cases involving espionage.The judge did not buy that
defence. The Agreement on Consular Access between Pakistan and India of 2008
does not envisage any restrictions on the rights granted for in Article 36 of
the VCCR.[2]
The violation of VCCR by
Pakistan was then brought up by the ICJ. Under Article 36, paragraph 1,
Pakistan was required to advise Jadhav of his rights (b). India was kept in the
dark by Pakistan on Jadhav's detention. The court ordered that Jadhav be
allowed to meet with Indian consular authorities so that India might get legal
counsel for him. The ICJ ruled that Jadhav should be granted a "effective
review and reconsideration" of his conviction and sentence by a civilian
court. The ICJ has left it up to Pakistan to decide how to remedy the
situation, in keeping with the concept of sovereignty. According to the ICJ,
"effective review and reconsideration of conviction and sentencing of Mr.
Jadhav" requires that the stay of execution be maintained. Importantly,
the ICJ took notice of the Rashid v. Pakistan case, a finding from the Peshawar
High Court, reiterating its "legal duty affirmatively to intervene with
rulings of military tribunals" for insufficient evidence and "malice
of fact and law." This puts the ultimate decision on Jadhav's fate in the
hands of the Supreme Court of Pakistan.
Facts that were previously
unknown were revealed in the Jadhav case. The circumstances surrounding
Jadhav's capture are a point of contention between India and Pakistan. While
India believes that Jadhav was abducted in Iran, Pakistan says he was detained
in Balochistan after illegally crossing into Pakistan from Iran. The role of
optics in the case was also highlighted. Harish Salve, a normally pricey
counsel, charged a pitiful one rupee for a national cause. The media went crazy
trying to figure out who had won as Somalian judge and court president
Abdulqawi Yusuf announced the result. The outcome of the war is conditional on
the specific battles that are fought. The life of human is at stake in the
Jadhav case, and international arbitration is being used to resolve the
disagreement.[3]
MATERIAL FACTS
Kulbushan Jadhav was
captured by Pakistan on March 3, 2016, and, he was accused of being a spy by
Pakistani military on March 24, 2016and law enforcement for having infiltrated
into Pakistan from Iran. Jadhav was apprehended in Balochistan, in the
country's south. meantime, Pakistan issued a video of Jadhav seemed to admit to
the charges against him.
To no avail, Pakistan's
foreign affairs minister wrote the Indian high commission in Islamabad a
"Letter of Assistance for Criminal Investigation against Indian National
Kulbhushan Sudhair Jadhav" on January 23.Since Jadhav is a former naval
officer who was kidnapped in Iran by the Pakistani government, India declared
on March 29th, 2016 that he is innocent of all allegations. Kulbushan Jadhav
was denied consular access in Islamabad despite a request from the Indian
government. In a single year, Pakistan refused 16 demands from New Delhi. On
April 10, 2017, a Pakistani military court found Kulbhushan Jadhav guilty of
"Espionage and Terrorism" and condemned him to death.
After a Pakistani military
court handed down a death sentence against Jadhav on April 14, the Indian
government requested consular access for him and an official copy of such
charge sheet and verdict. On May 8, 2017, India filed an appeal with the
International Court of Justice in The Hague, Netherlands, against the judgement
of Pakistan's Military Court, which condemned Kulbhushan Jadhav to death. India
cited Pakistan's failure to cooperate and harden its stance on the matter.The
following day the ICJ issued a stay of execution for Jadhav.
Following intensive
negotiations between New Delhi and Islamabad, on November 10th, 2017, Pakistan
agreed to permit Mr. Jadhav's wife to visit on "humanitarian
grounds," and the country also extended an invitation to Mr. Jadhav's
mother. Pakistan also provided India with guarantees of both the safety and
freedom of movement of the visitors. Kulbhushan "Sudhir Jadhav" was a
50-year-old former Indian Navy officer who was given the death penalty by the
PakistanMilitary Court. For "Espionage and Terrorism," the
allegations that led to Jadhav's death sentence.[4]
The problem is not the
objections taken up by the Pakistani government in an attempt to avoid
jurisdiction, but rather by both parties to the case. It's no secret that tensions
between the two countries have always been high; in fact, both have included
reservations about exercising jurisdiction in their declarations subscribing to
compulsory jurisdiction, which will only serve to further muddy the waters when
it comes to resolving any disputes that arise. Despite this, the court has
consistently adopted a broad interpretation of its authority, and without
backing from the Security Council, its rulings have little effect either the
parties are unwilling to recognize its authority or because the remedy it
awards is unclear.
Rule of Law was never
meant to ensure the impartiality of the law. Predicting the ultimate authority
of law is its principal function. When espoused by many jurists, the concept of
compulsory jurisdiction served the objective of rule of law. Given the
political divisions and lack of consistency in recognising what the law is, do
you really think that great powers like the United States and the Soviet Union
would accept this idea in its unrestrained form? As a result, the international
court's authority was weakened and a toothless tiger was constructed due to
debate and the urgent need for a legislation that would really make the court
function.[5]
ARGUMENTS- INDIAN REPUBLIC
Legal proceedings were
initiated against Pakistan "under Article 36, paragraph 1 of the Statute
of the ICJ, and Article 1 of the Optional Protocol towards the Vienna
Convention on Consular Relations Regarding the compulsory settlement of
Disputes (Optional Protocol) accusing violations of the VCCR by Pakistan,"
on behalf of theIndianRepublic, represented by Mr. Harish Salve, Senior
Advocate.The Indian government's lawyers maintained that Kulbushan Jadhav was
entitled to consular access under Article 36(1) of the Vienna Convention on Consular
Relations since a military court in Pakistan had handed down a death sentence
against him (VCCR). There has been a blatant breach of Article 36(1) of the
VCCR since Pakistan has declined this request more than sixteen times.
The attorneys also argue
that the provisions of the VCCR will take precedence over any bilateral
contractamong Pakistan and India because Article 73(2) states that
"nothing in the present Convention shall preclude States from reaching the
conclusion treaty obligations confirming or supplementing or extending or
exacerbating the provisions thereof."According to the Vienna Convention on
the Law of Treaties and fundamental principles of treaty law, such as Article
41(1), the duties "under the VCCR may be strengthened or clarified by
bilateral treaties, but they can't be weakened or undermined. Further, the
ICJ's Article 36(2) reservations are not a precondition for using its power
under Article 36(1) of the ICJ Statute; hence, VCCR is the proper authority to
be referred to in consular access situations.[6]
VIOLATION
OF ARTICLE 36 OF THE VCCR
The Republic of India's
lawyers have argued that consular access protects the constitutional right of
anybody jailed in a foreign state to maintain contact with citizens of his own
country in order to ensure a fair trial. the lawyers argued further that the
consular official should be permitted to contact and visit any citizen jailed
in a foreign nation or territory.
In light of the importance
of having access to consular services in ensuring a fair trial in line with
international law and international humanitarian law, it is clear that this
fundamental right cannot be denied under any circumstances.Pakistan violated
the Vienna Convention on the Law of Treaties (VCCR), the International Covenant
on Civil and Political Rights (ICCPR), and the statute of the International
Court of Justice (ICJ) in three main ways: (a) by failing to provide India with
sufficient information about the detention of Mr. Jadhav, and that too without
delay; (b) by failing to inform the detainee about his lawful right and remedy;
and (c) by failing to allow India and its consular officers the imprescriptible
right.[7]
ABUSE OF RIGHTS
The attorneys argue that
the Islamic Republic of Pakistan's blanket denial of all legally protected
rights constitutes prima facie proof of a severe violation of those
protections. However, denying someone their right to a free as well as fair
trial is a serious mistake that goes against the principles of the
International Covenant on Civil and Political Rights (ICCPR), making consular
access one of the most important preconditions for a fair trial. Since a fact
is only addressed if it's in dispute, and Pakistan has always noted Kulbushan
Jadhav as an Indian national, their justification that they're only guilty of
not providing India with consular access if the other country accepts and
provides evidence that the detainee in inquiry is their national is completely
without merit.
Remedies
In the closing section of
their comments, India's Counsels laid out precisely what they want to gain from
this ICJ decision. The following are the remedies that India has requested from
the Islamic Republic of Pakistan, as presented by the attorneys:
·
Considering
the ICJ's prescribed ratio, we thus order the immediate suspension of the death
penalty.
·
Since Pakistan
had not allowed India consular access to Jadhav, India said that the judgment
by the Pakistani military court constituted "brazen violation" of the
Vienna Convention on Consular Relations (VCCR) and the International Covenant
on Civil and Political Rights (ICCPR).
·
To secure
Kulbushan Jadhav's freedom, Pakistan must reverse the ruling of its Military
Court.
·
More
specifically, the court should rule that the military court's sentencing
decision was illegal under the Vienna Convention on the Control of
Extraordinary Measures, the International Covenant on Civil and Political
Rights, and international law, and that Kulbushan Jadhav should be deported
back to India as a result.[8]
ARGUMENTS -REPUBLIC OF PAKISTAN
Pakistan's legal
representative, Mr. Khawar Qureshi, Legal Counsel & Advocate, said that
India made three major errors in its response to Pakistan's charges. Pakistan
said that India committed violations of due process, violations of rights, and
illegal acts because it refused to acknowledge a simple fact: the VCCR lacks
the jurisdiction and application to hear espionage and terrorist matters owing
to the nature and severity of these offenses.Both India and Pakistan are
allowed to make their own decisions about the merits of any instances involving
"arrest, custody, or punishment issued on political or security
grounds," as stated in a bilateral agreement signed in 2008. Moreover, the
VCCR is null and void as of 2008 due to the existence of the pre-existing
bilateral agreement.[9]
Article 36(2) reservations
are practically as admissible and accepted as Article 36(1) reservations under
the ICJ law. Therefore, if a legally binding treaty or agreement exists, it is
automatically recognized and ratified by the parties.Given the presence of the
2008 bilateral agreement between the parties, India cannot assert the
jurisdiction of Article 36 of the VCCR in the current issue.
ABUSE OF PROCESS
The Islamic Republic of
Pakistan's legal representatives argued that India's violations of its
procedural rights amounted to an abuse of power. First, it went against
procedure by asking the ICJ to intervene with procedural procedures to halt
Kulbushan Jadhav's execution. Pakistan's constitution guarantees every citizen
the right to file a mercy appeal after 150 days of receiving a death sentence;
India, however, cast doubt on this provision in Mr. Jadhav's case. So, by going
to the ICJ while the proper remedy existed to halt Jadhav's execution, India
undercut what Pakistan terms "very material facts" and breached the
process.
India also violated the
VCCR's optional protocol by not allowing Pakistan to use alternative dispute
resolution processes, as is specified in Articles 2 and 3. Both parties must
provide two months' notice to the other that a disagreement has arisen and that
it must be resolved, not via the ICJ but through an appropriate tribunal or
forum. Both of these actions make it quite evident that India has broken the
rules, and none of them can legally bring Pakistan within the jurisdiction of
the International Court of Justice.[10]
ABUSE OF RIGHTS
In the next part of their
arguments, Pakistan's attorneys argued that India should be held liable for
abuse of rights for failing to corroborate in further inquests into the case of
Kulbushan Jadhav because, among other things, India flatly refused to do is
provide clarity on the nationality of Jadhav by arranging for an actual Indian
passport to be issued in his name, despite the fact that it was under a clear
obligation to do so.Pakistan has asked India's assistance in conducting
criminal investigations into Mr. Jadhav's actions, but India has taken a frigid
approach.
There is sufficient
evidence that India has helped Jadhav carry out several espionage and terrorist
acts. Given that India issued Kulbushan Jadhav a "false cover name
authentic passport," it has broken anti-terrorism laws, and Pakistan's
lawyers have said they will ask the International Court of Justice to enforce a
resolution from the United Nations Security Council against the country over
the incident.[11]
India is accountable of its unlawful conduct
The Islamic Republic of
Pakistan's Counsels respectfully submit that India's claim/application is
inadmissible since it is based solely on India's alleged illegal behavior.
Since a corollary, the Counsels ask that India's position be rejected by the
ICJ, as the country is not entitled to a clean slate in judicial
proceedings.The fact that India has not come to court with clean hands is
evidenced by its failure to respond to Pakistan's request for assistance in
investigating the criminal matter of Kulbushan Jadhav, its assistance to Jadhav
by providing him with a fake forged passport to carry out activities including
espionage and terrorism against Pakistan, and its disregard of the 2008
bilateral agreement between the parties.
Therefore, on
representative of the Islamic Republic of Pakistan, we would like to submit
before the hon'ble ICJ that, since India has not assisted Pakistan in
investigating Jadhav's matter, and since India's failure to establish Jadhav's
national identity is evidence that they are denying him to be a Indian, the
demand for trying to seek Consular access stands dismissed.[12]
CONCRETE JUDGMENT
The ICJ's ruling was
approved by a 15:1 margin. The breach of article 36 of the VCCR is the primary
focus of the majority's ruling. The court has noted that the two nations are at
odds over the 'consular aid' provided during Kulbhushan Jadhav's arrest,
custody, prosecution, and punishment. Both nations have signed on to the
"Optional Protocol to the Vienna Convention on Consular Relations regarding
the Compulsory Settlement of Disputes" with no reservations or
declarations of their own, in addition to VCCR membership. According to the
court, the case's jurisdiction stems from Article 1 of the "Optional
Protocol," which is not in conflict with any other international
agreements. As the State of India has asserted, it has jurisdiction over the
alleged VCCR infringement under Article 1 of the Optional Protocol.[13]
India's application was
deemed valid, and the "three objections" filed by the State of
Pakistan were overruled, which had focused on the alleged misuse of authority,
violations of human rights, and other illegal activities on the part of India.
Furthermore, the court ruled that Pakistan had violated Article 36 of the VCCR
by failing to carry out its commitments. Pakistan violated Kulbhushan Jadhav's
rights under Article 36(1)(b) by keeping India in the dark about his arrest and
incarceration and by refusing to allow him access to Indian consular officials.
Pakistan had committed to all of these terms as part of the VCCR agreement,
without any qualifications or disclosures. As a result, the court rules that
Pakistan has broken international norms.
Regarding India's request
for "restitution in integrum," the Court reminds us that "it is
not to be inferred that partial or entire annulment of conviction or sentence
offers the required and exclusive remedy" in circumstances of breaches of
Article 36 of the Vienna Convention. The Court agrees with India that its
arguments do not hold water.[14]
RATIO DECIDENDI
Considering the evidence
and the applicable precedents, it follows that Article 36 of the VCCR, when
read in the "context and in light of the object and purpose of the
Convention," did not exclude from its scope "certain categories of
persons, such as those suspected of espionage," the Court ruled in
response to Pakistan's argument that the ICJ lacks jurisdiction to hear cases
where the detainees in question are guilty of offenses related to espionage and
terrorism. When a receiving state claims that a foreign person in its custody
is participating in espionage, the Court finds that "it would run opposite
to the object of that clause if the rights it protects could be ignored."
The ICJ emphasized that
the 2008 Agreement could not be interpreted as prohibiting consular access
since it stated that "each party may review a matter on its merits"
in cases of "arrest, custody, or punishment issued on political or
security grounds." "if the Parties had meant to limit in any manner
the rights granted by Article 36, one would anticipate such an aim [would have
been] plainly represented in the [2008 Agreement], which was not the
case," it writes. The ICJ clarified that Pakistan's duties under Article
36 of the VCCR remain in effect notwithstanding the 2008 Agreement, which may
only "confirm, augment, extend or amplify" the VCCR.[15]
The Court concludes that
the conviction and sentencing of Mr. Jadhav do not constitute a breach of the
Vienna Convention, which was the basis for India's claim. As the Court stated
in the Avena case, "the case before it concerns Article 36 of the Vienna
Convention rather than the correctness as such of any conviction or
sentencing," and "it is not the convictions and sentences of the
Mexican nationals that are to be considered as a violation of international
law, but solely" certain breaches of international commitments on consular
access which preceded them.
The Court reiterates that
it is not Mr. Jadhav's conviction and sentence that are to be set aside,
despite India's claims that it is entitled to restitution integrum and its
requests to have the military court's decision annulled and for Pakistan to be
enjoined from giving effect to the sentence or conviction and to have Pakistan
take the steps to annul the decision of the military court, to release Mr.
Jadhav, and to facilitate his safe passage to India. The Court further
emphasizes that in circumstances involving breaches of Article 36 of theBecause
of the sufficiency of this observation, the Court accepted the dispute under
the Vienna Convention and issued an order for further factual and legal
clarifications, finding that the alleged acts of terrorism or espionage do not
exceed the limits of the Court's jurisdiction underneath the Convention. It was
noted that neither the ICJ statute nor the Vienna Convention permitted the
jurisdiction of the Court to be circumscribed by a bilateral
agreement."Vienna Convention, "[i]t is not to be expected... that
partial or entire annulment of conviction or punishment offers the required and
exclusive remedy." The Court agrees with India that its arguments do not
hold water.The Court has said that information showing Pakistan's failure to
provide consular access or communication would be used as a basis for removing
unnecessary jurisdiction.[16]
The International Court of
Justice (ICJ) ruled that Pakistan had a duty to promptly notify India and
provide it consular access; Pakistan's claim that India's reluctance to
recognize the prisoner as a citizen rendered the request for consular access
moot was rejected as baseless. The fact that Kulbhushan was often referred to
as a "Indian spy" by Pakistan is indicative of their knowledge of
this reality.Not convinced by this, the ICJ found Pakistan guilty of breaching
the VCCR by barring consular access and also of not adopting the requirements
of the optional protocol of 1969.
LEGAL ANALYSIS
This case has been used as
a model for how to push the boundaries of international law when interpreting
legal instruments. However, the pursuit of justice has been slow, which has
slowed the development of the legal system. One may compare a grasp of the
Vienna Convention to the fundamental element of jurisdiction that underpins
every case on its own merits. The Court also noted that there was a fundamental
issue over the consular aid that would be provided to Mr. Jadhav in the event
of his arrest, incarceration, and trial.
Jurisdiction
The Court has said that
information showing Pakistan's failure to provide consular access or
communication would be used as a basis for removing unnecessary jurisdiction.
After making this remark, the Court accepted the dispute under the Vienna
Convention11 and ruled that the claimed acts of terrorism or espionage do not
beyond the limitations of the Court's jurisdiction under the Convention, requiring
additional legal and factual evidence. explanations.As was pointed out, the
ICJ's jurisdiction cannot be limited by a bilateral agreement because of the
terms of the ICJ statute and the Vienna Convention.[17]
Protection of Rights
India has contended that
the rights relevant to interim measures are the fundamental principles of
consular protection14, which may be invoked by any State Party under the
Convention in the event that one of its nationals is arrested or imprisoned.
The Court said that it is not necessary to make a final determination as to the
existence of the rights, which India desires to see safeguarded, at the
temporary measures stage. It need simply assess whether these rights have any
basis in reality. Pakistan decided to allow Mr. Jadhav's family contact him
since the case served as an example for the protection of human rights.If the
Parties' rights are at stake, it is necessary to establish irreparable harm
that might be caused by the order of interim measures. That's reminiscent of
Pakistan's treatment of Mr. Jadhav, who was given the death sentence without a
fair trial, in violation of natural justice standards that resulted in
irreparable damage. Finally, the LaGrand case demonstrates the importance of
timing in a request for interim measures.[18]
CHAPTER 2: REVIEWOF LITERATURE
The two most typical
origin points for locating the Court are laid forth in Article 36 of the
Court's Statute. The ICJ's authority is defined by the terms of the provisions.
Second, in circumstances where States have made unilateral declarations
accepting the ICJ's jurisdiction for specific kinds of disagreements that may
evolve with other States, Article 36 (2) of the ICJ Statute grants authority to
the ICJ. To support its claim, India cites Article 36 (1), which states that
the ICJ has jurisdiction over any dispute arising out of or in connection with
the interpretation or application of the VCCR, since both Pakistan and India
are signatories to the Optional Protocol to the VCCR. If India can show that
the disagreement concerns "the interpretation or application" of the
VCCR, as stated in the Optional Clause of the Optional Protocol, then the ICJ
has jurisdiction to rule on the case.[19]
Pakistan, on the other
hand, has cited not just India's objections about the ICJ's jurisdiction, but
also its own qualms about the court's jurisdiction in matters of national
security.Pakistan argued that the court lacked authority to hear the Jadhav case
since it involved questions of national security. This objection was submitted
by India and Pakistan due to their concerns with Article 36 (2) of the ICJ
Statute. However, the court found that these challenges did not pertain to
Article 36 (1), which permits a State to rely on the mandatory element of a
treaty to determine the ICJ's jurisdiction.[20]
Using a prior judgment in
which it was determined that once it is founded which court jurisdiction under
Article 36(1), the formalities adopted by the states becomes immaterial, the
ICJ ruled that Pakistan's claims were inadmissible. While resuming its prior
precedent on procedural steps, the court warned that any reservation in the
states' declarations might thwart the court's authority as specifically
established by the optional protocol. By failing to investigate additional
VCCRs, the Pakistani government may have been making a tactical mistake in its
attempt to avoid the court's jurisdiction under Article 36. (2). The majority
of nations agreed with the proposal made by the 1920 advisory Jurists Committee
when they were tasked with writing a resolution for the ICJ to get all
signatory parties to accede to the concept of obligatory jurisdiction of the
ICJ.[21]
Nonetheless, the Soviet
Union and the United States remained steadfast in their opposition to automatic
obligatory jurisdiction, and the idea was eventually abandoned once again. The
United States Senate's compliance with 20th-century isolationist practice
protected the country from being bound by the ICJ's resolution's mandatory
jurisdiction. However, in 1946, Senator Thomas, Representative Morse, and
Representative Herter advocated requesting President Truman to accept the
court's mandatory jurisdiction over the four categories of problems set out in
the Act. In spite of the Senate's objections, he went ahead and did it. The
ICJ's legislation makes it optional for individual governments to accept the
court's obligatory jurisdiction, putting the court at the mercy of the states
that choose whether or not to recognize it.[22]
CHAPTER 3: METHODOLOGY
OBJECTIVES OF THE STUDY
·
To
analyse the Kulbhushan Jadav case.
·
To
know the judgements related to this case.
METHODOLOGY
Content analysis process was taking into consideration for getting the evaluation
of information about various aspects of internet of things. So many literatures
such as research papers, PDFs, research articles, journal articles were cited
for getting detailed information about internet of things. After the citation
of research papers, relevant information was taken out and irrelevant data was
deleted so that the results of analysis will be correctly done with all the
valuable information already in existence regarding the topic. After the
extraction of information, accuracy has been tested and then after with the
help of research cited this paper has been finalized.
CHAPTER 4: CASE LAW
BACKGROUND OF THE CASE
The ICJ has ruled that Mr.
Jadhav has been in Pakistani custody since March 3, 2016, while the
circumstances surrounding his arrest remain unclear. Following his retirement
from the Indian Navy, Mr. Jadhav moved to Iran, where he lived and conducted
business, until being kidnapped, as per Indian claims. However, Pakistan was
relieved that Mr. Jadhav had been captured in Balochistan, on the border with
Iran, for unlawfully entering Pakistan using an Indian passport in the name of
"Hussein Mubarak Patel." After this, Mr. Jadhav was detained in
Pakistan on espionage and terrorist allegations leveled against him by India,
charges that India has strongly denied. Pakistan asserts that Mr. Jadhav's
trial before a Field General Court Martial commenced on September 21, 2016.
Because of his violation of the Official Secrets Act of 1923 and Section 59 of
the Pakistan Army Act of 1952, he was legally unable to speak publicly about
the matter.The trial of Mr. Jadhav lasted less than seven months, and on April
10th, 2017, the Field General Court Martial handed down a death sentence.[23]
The problem is not the
objections taken up by the Pakistani government in an attempt to avoid
jurisdiction, but rather by both parties to the case. It's no secret that
tensions between the two countries have always been high; in fact, both have
included reservations about exercising jurisdiction in their declarations
subscribing to compulsory jurisdiction, which will only serve to further muddy
the waters when it comes to resolving any disputes that arise. Despite this,
the court has consistently adopted a broad interpretation of its authority, and
without backing from the Security Council, its rulings have little effect
either the parties are unwilling to recognize its authority or because the remedy
it awards is unclear.
Rule of Law was never
meant to ensure the impartiality of the law. Predicting the ultimate authority
of law is its principal function. When espoused by many jurists, the concept of
compulsory jurisdiction served the objective of rule of law. Given the
political divisions and lack of consistency in recognising what the law is, do
you really think that great powers like the United States and the Soviet Union
would accept this idea in its unrestrained form? As a result, the international
court's authority was weakened and a toothless tiger was constructed due to
debate and the urgent need for a legislation that would really make the court
function.[24]
Most of the nations agreed
with the proposal made by the 1920 advisory Jurists Committee when they were
tasked with writing a resolution for the ICJ to get all signatory states to
consent to the idea of obligatory jurisdiction of the ICJ.
Even then, countries like
the United States and the Soviet Union were adamantly opposed to the idea of
automatic obligatory jurisdiction, and so it was abandoned once again. The
United States Senate avoided signing on to the ICJ's resolution's mandatory
jurisdiction clause because of the 20th century isolationist culture that was
then in effect there. However, in 1946, Senator Thomas, Representative Morse,
and Representative Herter advocated requesting President Truman to accept the
court's mandatory jurisdiction over the four categories of problems set out in
the Act. Nonetheless, he did so with certain caveats attached from the
Senate. It is up to individual nations to subscribe to the ICJ's
obligatory jurisdiction, under the rules of the ICJ's statute; this leaves the
court at the mercy of the states, who may accept or reject the claim at their
discretion.
When compared to the PCIJ
legislation, the new law's concept of compulsory jurisdiction is narrower. If
we examine the prior legislation, we see that much discretion was purposefully
given to each state, making it as easy as possible for them to exercise
compulsory jurisdiction on the basis of the provision. The original idea was
that if a critical mass of nations were persuaded to issue declarations, the
rest of the states would eventually come around to the idea of obligatory
jurisdiction. Each of the four predicate conditions for the exercise of
compulsory jurisdiction in a legal dispute was included in the prior
legislation. Accepted and ratified by Iran, the country served as an exception
to the declaration's four sections in 1930 by limiting its scope to
disagreements over the interpretation of conventions and treaties.
Consular access to Jadhav
Following the meeting, the
official spokesman for India's Ministry of External Affairs released a public
statement alleging that Mr. Jadhav had been subjected to "severe
pressure" to repeat a fake story in support of Pakistan's implausible
assertions. Official MEA spokespeople made a statement on July 16, 2020,
criticizing Pakistan for blocking Mr. Jadhav's unfettered and unrestricted
consular access. According to the spokesman, India has asked Pakistan more than
twelve times in the last year to provide consular access to Mr. Jadhav, who has
been detained in Pakistani custody since 2016.[25]
Following the ICJ's
recommendations, Mr. Jadhav was to be provided with all of the avenues and
support necessary to have his conviction and sentence reassessed. Within 60
days of the ordinance's enactment, a petition for review and reconsideration of
a military tribunal conviction may be filed with the Islamabad High Court. This
was made possible by the ICJ Reconsideration andReviewOrdinance, 2020, issued
by the Pakistani government in May of that year.Mr. Jadhav, a duly authorized
representative, or a member of the Indian High Commission in Islamabad might
all submit a plea with the relevant authorities under this Ordinance. Mr.
Jadhav was allegedly encouraged by Pakistani officials to submit a plea for
reconsideration of his sentence and conviction, but he declined and instead
insisted on following through on his pending mercy appeal. While Pakistan may
have a point, India perceived their assertion as a form of bullying.
According to Article 60 of
the ICJ Statute, the ICJ's decisions are final and cannot be challenged in
higher courts. In addition, Article 94(1) of the Charter of the UNspecifies that every UN member agrees to
follow the ruling of the ICJ in any matter in which it is a party.As members of
the UN and litigants in the case, India and Pakistan are bound by the ICJ's
ruling.Pakistan has repeatedly disregarded the ICJ's ruling by not granting Mr.
Jadhav full, unfettered, and unconditional consular access.
If Indian authorities were
granted unrestricted consular access, they would be able to speak with Jadhav
in a safe space where they wouldn't have to worry about him feeling threatened
or retaliated against.Despite the accord and the ICJ's directives, the consular
access offered in both instances was empty and unconvincing. The Indian
government may have to go back to the ICJ if Pakistan doesn't really start
executing the July 2019 ruling, according to lawyer Shri Harish Salve, who also
sided with India in the Jadhav case. However, the Security Council of the
United Nations is the ideal place to start.[26]
According to Article 94(2)
of the United Nations Charter, the other party to a case may appeal to the
Security Council if one party fails to adhere to its responsibilities under a
judgment issued by the ICJ. If necessary, the Security Council may then issue a
recommendation or make a decision upon steps that must be taken to give effect
to the judgment.The Security Council has been given the discretionary authority
to make recommendations or take the necessary steps to implement ICJ rulings
according to Article 94(2).
Counsel for the Republic
of India argued that Pakistan's military court had issued a death sentence
against Kulbushan Jadhav, making consular access to Jadhav a fundamental human
right protected by Article 36(1) of the VCCR, and that Pakistan's repeated
refusals to grant India consular access to Jadhav constitute a flagrant
violation of this provision of the treaty.
Due to the seriousness and
horror of espionage and terrorist acts, the VCCR cannot apply or have the
necessary authority to rule on such instances. In 2008, India and Pakistan
signed a bilateral agreement in which it was stated clearly that in situations
of "arrest, custody, or punishment issued on political or security
grounds," each country is free to make its own decision on the merits of
the case. With the 2008 bilateral agreement already in place, its terms take
precedence over those of the VCCR.
Article 36(2) reservations
are practically as admissible and accepted as Article 36(1) reservations under
the ICJ law. Therefore, if a legally binding treaty or agreement already
exists, it is automatically recognized as such by all parties involved.Given
the presence of the 2008 bilateral agreement between the parties, India cannot
assert the jurisdiction of Article 36 of the VCCR in the current issue.
MERITS
A legitimate 2008
bilateral agreement between the parties established that the VCCR would be
applicable in addition to domestic law. The Court's determination that Pakistan
was responsible for violating VCCR and ICCPR regulations was based on this fact
alone. Given its inclusion in Article I of the Options Protocol, the ICJ does
have jurisdiction over matters relevant to the Options Protocol, as the Court
has argued. Accordingly, Pakistan's argument that India's lack of cooperation
in their criminal investigations against Kulbhushan Jadhav is evidence that
India denied Pakistan's claims that Jadhav is an Indian citizen and, thus, that
Pakistan has no legal claim to consular access to him, is without merit, as the
Court correctly inferred that only a fact that is in dispute is to be addressed.
It was appropriate for the
Court to reject India's stance on restitution in integrum, since it is contrary
to the norms of international law and the Official Secrets Act of Pakistan,
which permits prisoners to apply for a re-evaluation petition. Moreover, undermining
Pakistan's constitutional machinery by issuing a directive for the deportation
of Kulbhushan Jadhav back to India would be a violation of the concept of
justice since a law or decision is only given force if it is endorsed by the
Constitution.
DEMERITS
While the Hon'ble Court's
analysis of the VCCR's applicability was correct, There is a danger to the
country's sovereignty, political infrastructure, or social order, but the Court
did not perform the required investigation to determine why stakeholders should
be permitted to resolve the issues on their own merit under the 2008 bilateral
agreement.The researcher has no argument with the VCCR's legality or its
extraterritorial applicability; rather, she is upset that the court did not
give a straightforward harmonic reading to the articles of the bilateral
agreement in order to grasp the core of the same.
CHAPTER 5: CONCLUSION
When it comes to this
specific case, the researcher wholeheartedly agrees with the logic and decision
reached by the Honourable ICJ. The researcher also provides a few arguments
against accepting the court's position. This section will provide a streamlined
presentation of opposing viewpoints and research results. Kulbhushan Jadhav, an
Indian citizen, was arrested and imprisoned in Pakistan in March 2016. After
hearing evidence of his espionage and terrorist activities, a military court in
Pakistan handed down a death sentence. During Jadhav's arrest, incarceration,
and military trial, India had demanded consular access. While Pakistan denied
it, they did let Jadhav's mother and wife to see him.After being denied
consular access, India's sole recourse for protecting a person abroad is the
VCCR of 1963. The VCCR and its supplementary protocol include India and Pakistan
as signatory countries. On May 8 of this year, India decided to approach the
ICJ for help. With a temporary measure reading, "Pakistan will take all
steps at its disposal to ensure that Mr. Jadhav is not executed awaiting the
ultimate determination in these proceedings," the ICJ complied with
India's request. The ICJ issued its ruling on the merits of the case on July
17.The ICJ ruled that it could hear the case because of Article I of the VCCR
optional protocol. In cases where the VCCR applies, the protocol requires the
parties to the treaty to resolve their differences via mandatory arbitration.
Naturally, Pakistan raised an objection to the ICJ's ability to hear India's
case, but it was overruled. Finally, the judge addressed the meat of the case.
An international agreement, the VCCR is legally binding. The Vienna Convention
on the Law of Treaties establishes the standards for interpreting treaties.
Pakistan has signed the VCLT but has yet to ratify it, and India is not a party
to it. Therefore, the ICJ opted to read the VCCR "in accordance with the
established standards of treaty interpretation." According to Pakistan,
Article 36 of the VCCR does not require consular access in cases involving
espionage. However, the judge found otherwise. No limitations on the rights
presented by Article 36 of the VCCR are foreseen under the Agreement on
Consular Access between India and Pakistan of 2008. The ICJ then brought up
Pakistan's violation of the VCCR on the Control of nuclear weapons. In
violation of Paragraph 1 of Article 36, Pakistan had neglected to tell Jadhav
of his rights. When Jadhav was arrested and taken into custody, Pakistan did
not notify India. The court ordered that Jadhav be made available to Indian
consular authorities so that he might be represented by Indian lawyers. The
International Court of Justice ruled that a "proper remedy" for
Jadhav would be for the military court to "effectively examine and
reassess" his conviction and sentence. The ICJ has left it up to Pakistan
to decide how to remedy the situation, in keeping with the concept of
sovereignty. The ICJ ruled that Mr. Jadhav's conviction and punishment must be
effectively reviewed and reconsidered, hence a stay of execution is necessary.
The ICJ took notice of the Rashid v. Pakistan case, a verdict from the Peshawar
High Court, asserting its "legal duty affirmatively to intervene with
rulings of military tribunals" for insufficient evidence and "malice
of fact and law." This puts the ultimate decision on Jadhav's fate in the
hands of the Supreme Court of Pakistan. Uncertain details about the Jadhav case
have surfaced. The circumstances surrounding Jadhav's capture are a point of
contention between India and Pakistan. While India believes that Jadhav was
abducted in Iran, Pakistan says he was detained in Balochistan after illegally
crossing into Pakistan from Iran. The role of optics in the case was also
highlighted. Harish Salve, a normally pricey lawyer, took just one rupee to
represent a national cause. With the Somalian judge and court president
Abdulqawi Yusuf's announcement of the judgement, the media erupted into a
frenzy attempting to ascertain which side had won. The outcome of the war is
conditional on the specific battles that are fought. Case in point: the Jadhav
issue, which was arbitrated internationally since it involved a person's
physical safety.
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[5]“Jadhav Case (India v. Pakistan), Judgment, 17 July
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[8]“Ranganathan, S. (2018, March 5). Jadhav Case (India v.
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[10] “Latest developments: Jadhav (India v. Pakistan):
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[12] “Iqbal, K. (2019). ICJ’s Interesting Verdict on
Commander Kulbhushan Jadhav. Defence Journal, 23(1), 60.”
[13] “Rao, P. S. (2016). The Jadhav case (2017): India and
Pakistan before the International Court of Justice. Indian Journal of
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[14]“Rao, P. S. (2016). The Jadhav case (2017): India and
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[15] “Singh, P. (2019). Kulbhushan Jadhav: A rather curious
case”
[18] “Dubey, A. (2017). The Jadhav Case Before the
International Court of Justice. Indian Journal of International Law”
[19] “Shah, S. (2017). Journalism, Nationalism, and
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and Conflict Studies”
[20] “Iqbal, K. (2017). Kulbhushan Jadhav Case: Prospective
Doklam for Modi!. Defence Journal, 21(3), 10-12”
[21] “Kattan, V. (2020). Jadhav Case (India v. Pakistan).
American Journal of International Law, 114(2), 281-287.”
[22] “Iqbal, K. (2017). Kulbhushan Jadhav Case: Prospective
Doklam for Modi!. Defence Journal, 21(3), 10-12”
[23] “Iqbal, K. (2017). Kulbhushan Jadhav Case: Prospective
Doklam for Modi!. Defence Journal, 21(3), 10-12.”
[24]“Iqbal, K. (2017). Kulbhushan Jadhav Case: Prospective
Doklam for Modi!.Defence Journal, 21(3), 10-12.”
[26] “Rao, P. S. (2016). The Jadhav case (2017): India and
Pakistan before the International Court of Justice. Indian Journal of
International Law, 56(3)”