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ANALYSIS OF INDIA V. PAKISTAN (JADHAV CASE): INTERNATIONAL LEGAL IMPLICATIONS AND DIPLOMATIC TENSION BY: AYUSHI A. MALIK
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ANALYSIS OF INDIA V. PAKISTAN (JADHAV
CASE): INTERNATIONAL LEGAL IMPLICATIONS AND DIPLOMATIC TENSION
AUTHORED BY: AYUSHI
A. MALIK
Contact No.:
9137070000
Institute Of Law,
Nirma University
INTERNATIONAL COURT OF JUSTICE
JADHAV CASE (INDIA v. PAKISTAN) JUDGMENT OF 17 JULY 2019
Hon’ble Judges: President Yusuf;
Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade,
Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam,
Iwasawa; Judge ad hoc Jillani; Deputy-Registrar Fomété.
Official Citation: Jadhav
(India v. Pakistan), Judgment, I.C.J. Reports 2019, p. 418
In the Jadhav case, between
the
Republic of India, represented by:
Mr. Deepak Mittal, Joint Secretary, Ministry of
External Affairs, as Agent;
Mr. Vishnu Dutt Sharma, Additional Secretary, Ministry of
External Affairs, as Co-Agent;
Mr. Harish Salve, Senior Advocate, as Senior Counsel;
H.E. Mr. Venu Rajamony,
Ambassador of the Republic of India to the Kingdom of the Netherlands;
Mr. Luther M. Rangreji, Counsellor, Embassy of India in the
Kingdom of the Netherlands, as Adviser;
Ms. Chetna N. Rai, Advocate, Ms. Arundhati
Dattaraya Kelkar, Advocate, as Junior Counsel;
Mr. S. Senthil Kumar, Legal Officer, Ministry of External
Affairs, Mr. Sandeep Kumar, Deputy Secretary, Ministry of External
Affairs, as Advisers.
And
the Islamic
Republic of Pakistan, represented by:
Mr. Anwar Mansoor Khan, Attorney General for the Islamic
Republic of Pakistan, as Agent;
Mr. Mohammad Faisal, Director General (South Asia and
South Asian Association for Regional Cooperation), Ministry of Foreign Affairs,
as Co-Agent;
H.E. Mr. Shujjat Ali Rathore, Ambassador of the Islamic Republic
of Pakistan to the Kingdom of the Netherlands;
Ms. Fareha Bugti, Director, Ministry of Foreign
Affairs;
Mr. Junaid Sadiq, First Secretary, Embassy of Pakistan
in the Kingdom of the Netherlands;
Mr. Kamran Dhangal, Deputy Director, Ministry of Foreign
Affairs;
Mr. Ahmad Irfan Aslam, Head of the International Dispute
Unit, Office of the Attorney General;
Mr. Mian Shaoor Ahmad, Consultant, Office of the Attorney
General;
Mr. Tahmasp Razvi, Office of the Attorney General;
Mr. Khurram Shahzad Mughal, Assistant Consultant, Ministry of
Law and Justice;
Mr. Khawar Qureshi, QC, member of the Bar of England
and Wales, as Legal Counsel and Advocate;
Ms. Catriona Nicol, Associate, McNair Chambers, as
Junior Counsel;
Mr. Joseph Dyke, Associate, McNair Chambers, as
Legal Assistant;
Brigadier (retired) Anthony Paphiti,
Colonel (retired) Charles Garraway, CBE, as Legal Experts.
FACTS
OF THE CASE
Kulbushan Jadhav, a 50 years old
retired Indian Navy Officer was imprisoned by Pakistan on March 3, 2016, and on
March 24, 2016, the country's military establishments and law enforcement
organisations accused Jadhav of being a spy on the basis that he crossed into Pakistan
from Iran and was apprehended in Balochistan, which is in southern Pakistan. In
the meantime, Pakistan also published a video in which Jadhav was seen
confessing the accusations made against him.
On January 23, 2017, Pakistan's
external affairs minister sent a "Letter of Assistance for Criminal
Investigation against Indian National Kulbhushan Sudhair Jadhav" to the
Indian High Commission in Islamabad, but no reply was received. On March 29,
2016, India asserted that all accusations made against Jadhav were completely
baseless because he is a retired naval officer who was kidnapped illegally from
Iran by Pakistani authorities. Additionally, Kulbushan Jadhav's request for
consular access from Islamabad by the Indian government was turned down. In the
course of a year, Pakistan denied as many as 16 requests from New Delhi.
Kulbushan Jadhav was given the death penalty by the Pakistani Military Court on
April 10, 2017, for "espionage and terrorism."
On April 14, 2017, the Indian
government requested a legitimate copy of the charge sheet and death sentence
issued by the Pakistani military court, as well as consular access for Jadhav.
On May 8, 2017, India petitioned the International Court of Justice in The
Hague, Netherlands, to review Pakistan's military court decision to sentence
Kulbushan Jadhav to death. This was done out of resentment over Pakistan's
stance and lack of cooperation in granting Mr. Jadhav consular access. In a
dispute over alleged violations of the Vienna Convention on Consular Relations
of 24 April 1963, India applied to start legal proceedings against Pakistan.
India complained that Pakistan had not promptly notified it of the arrest and
detention of one of its citizens. Furthermore, it claimed that Mr. Jadhav had
not been made aware of his rights under Article 36 of the Vienna Convention on
Consular Relations and that India's consular officers had been denied access to
him while he was being held, detained, and imprisoned. As a result, they were
unable to speak with him, arrange for his legal representation, or even have a
conversation with him. A Request for the Indication of Provisional Measures was
also submitted by India on the same day, asking the ICJ to order Pakistan to "take
all necessary steps to ensure that Mr. Kulbhushan Sudhir Jadhav is not
executed" and to "ensure that no action is taken that might prejudice
the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav concerning
any decision the Court may render on the merits of the case." By an Order
dated May 18, 2017, the Court instructed Pakistan to "take all measures at
its disposal" to prevent Mr. Jadhav from being executed before the case
had concluded. Pakistan was also required to report to the Court on all actions
taken in response to that Order. It also determined that it would maintain
control over the matters that made up the Order until the Court made its final
ruling.
ISSUES
RAISED
Is the Vienna Convention on Consular Relations
superseded by the bilateral agreement signed between India and Pakistan in 2008?ARGUMENTS
ON BEHALF OF THE
REPUBLIC
OF INDIA
The Republic of India's legal
representative, Mr. Harish Salve, Senior Advocate, filed a lawsuit against
Pakistan under Article 36, paragraph 1 of the International Court of Justice's
Statute and Article 1 of the Vienna Convention on Consular Relations Optional
Protocol, alleging violations of the VCCR on Pakistan's part. India denied the
charges, claiming that Mr. Jadhav was apprehended by Pakistani agents in the
Iranian port of Chabahar, where he was conducting business.
Kulbushan Jadhav was given a death sentence
by a military court in Pakistan. As a result, the request to grant Jadhav
consular access is a matter of right under Article 36(1) of the VCCR. It was
argued that VCCR is the proper authority to be referred to in matters of
consular access because the reservations stated in Article 36(2) of the ICJ
Statute are independent of and not merely a prerequisite to using the authority
under Article 36(1) of the ICJ Statute. The counsels contended that the
provisions of the VCCR that have already been established cannot be overridden
by any bilateral agreement between India and Pakistan, by Article 73(2) of the
VCCR.
It was argued that Pakistan violated
the ICJ statute, the VCCR, and the ICCPR covenants and committed a grave error
in its application to the court by (a) failing to promptly inform India of Mr.
Jadhav's detention, (b) failing to inform the detainee of his legal rights and
remedies, and (c) denying India and its consular officers the unrestricted
right of consular access. It was further argued that Jadhav's confession, which
was broadcast on Pakistani television, was extracted through coercion and
should not be considered as evidence.
Pakistan's justification that
granting consular access is contingent upon the other nation accepting and
supplying evidence that the detainee in question is their national is baseless
because a fact in question is only addressed if it's in dispute, and in the
current instance, Pakistan has always mentioned Kulbushan Jadhav as an Indian
national. Therefore, according to the justification provided by Pakistan, they
are also at fault for denying India consular access even though the issue of
nationality was prima facie, unambiguous.
The remedies sought by India included
the suspension of Jadhav's death sentence, the declaration that Pakistan had
violated the VCCR and ICCPR, and the overturning of Jadhav's conviction. India
also sought the release of Jadhav and his repatriation to India.
ARGUMENTS ON BEHALF OF THE ISLAMIC
REPUBLIC OF PAKISTAN
Mr. Khawar Qureshi appeared on behalf
of the Islamic Republic of Pakistan and claimed that India had abused the
process, violated the rights, and engaged in unlawful conduct because they
refused to accept the fact that the VCCR lacks the applicability and
jurisdiction to hear cases of espionage and terrorism, the bilateral agreement
between India and Pakistan signed in 2008 supersedes the VCCR's applicability,
and the cases under Article 36(1) of the statute, reservations made under
Article 36(2) of the ICJ statute are almost equally admissible and acceptable.
Therefore, if a treaty or agreement exists that has legal force, it ipso facto
becomes a valid treaty or agreement that the parties abide by.
The counsels for the Islamic Republic
of Pakistan claimed that India had violated some procedural rules and abused
its power by asking the ICJ to use procedural measures to stop Kulbushan
Jadhav's execution and by denying Pakistan the option to use other dispute
resolution mechanisms, India violated the provisions of Articles 2 and 3 of the
Optional Protocol to the VCCR. Therefore, India has abused the process and
cannot subject Pakistan to the jurisdiction of the ICJ.
It was argued that India should be
held accountable for violating rights for not corroborating the investigations
in the Kulbushan Jadhav case. India blatantly refused to establish Jadhav's
nationality, despite having a clear obligation to do so. Furthermore, India's
extremely cold response to assist Pakistan in conducting additional
investigations.
The counsels for the Islamic Republic
of Pakistan claimed that India was guilty of its unlawful conduct. It was
argued that India has not come to the Court with clean hands, failed to respond
to Pakistan's request for assistance to conduct further investigation into the
criminal matter of Kulbushan Jadhav and assisted Jadhav by giving him a fake,
forged passport to engage in espionage and terrorism against Pakistan, thus
disregarding the 2008 bilateral agreement between the parties. Therefore, the
demand for seeking Consular access is dismissed as establishing valid
nationality is a prerequisite for the right to seek Consular access.
JUDGMENT
On July 17, 2019, the International
Court of Justice (ICJ) issued its ruling on India's petition concerning the
case of Shri Kulbhushan Jadhav, with a 15:1 majority. Both India and Pakistan
are members of the Vienna Convention on Consular Relations (VCCR) and have also
ratified the "Optional Protocol to the Vienna Convention on Consular
Relations Concerning the Compulsory Settlement of Disputes" without any
reservations or declarations. The court observed that the case's jurisdiction
stems from Article 1 of the "Optional Protocol" and does not violate
any other international treaties except VCCR. As claimed by the State of India
regarding the violation of VCCR, it therefore has legal jurisdiction under
Article 1 of the Optional Protocol.
The State of India's application was
admissible while the three objections raised by the State of Pakistan regarding
the State of India's abuse of power, abuse of rights, and unlawful conduct were
dismissed. The court further determined that Pakistan had violated the
agreement and been in default of its obligations under Article 36 of the VCCR.
Kulbhushan Jadhav's rights under Article 36(1)(b) were not made known to him by
the State of Pakistan, which also prevented him from seeing Indian consular
officers by failing to inform India of Jadhav's arrest and detention. The
22-day delay in informing India of Jadhav's arrest was regarded as "undue
delay," given that his Indian nationality was established by Pakistan
early on. Despite India's repeated requests for consular access, Pakistan
wrongly refused it and even made it conditional on India's cooperation in
Jadhav's investigation. Such a requirement is not only acceptable legally, but
it also seems to be intended to pressure India into indirectly accepting Jadhav's
"guilt" by cooperating with Pakistan's investigation. All of these
were included in the VCCR agreement, to which Pakistan had consented without
making any declarations or reservations. As a result, the court determined that
Pakistan had violated international laws.
Pakistan contested the relevance of
the VCCR to this matter, claiming that it does not apply to alleged cases of
espionage and terrorism. Moreover, Pakistan argued that a 2008 bilateral
agreement between the two countries altered the application of the VCCR to
politically and security-sensitive cases. The ICJ rejected these because no
such exception or modification is envisaged under the VCCR. It further
emphasised that recognising espionage or terrorism as an exception will make it
convenient for countries to forego their obligations under the VCCR in
controversial cases. Regarding India's demand for "restitution in
integrum," the court stated that the annulment of Jadhav's conviction or
sentence does not necessarily provide the necessary and sole remedy in cases of
VCCR violations. Therefore, the court could not uphold India's submissions.
Overall, the case highlights the importance of consular access and the role of
the ICJ in resolving international legal disputes.
ANALYSIS
The Kulbhushan Jadhav, one of the
landmark cases has highlighted the importance of consular access in
international law and the role of the ICJ in resolving disputes related to
consular access. The case also raises broader questions about the treatment of
foreign nationals in detention and the rights of states to exercise
jurisdiction over foreign nationals accused of crimes within their territory.
The ICJ's judgment in the case is significant as it reinforces the importance
of consular access and sets a precedent for future cases involving violations
of the VCCR.
Despite Pakistan's objections, the
ICJ determined that it had jurisdiction over the case, as the alleged
violations of the Vienna Convention on Consular Relations fell within its
jurisdiction. The Court clarified that its jurisdiction could not be limited by
bilateral agreements. India's claim for consular access and protection of its
national rights was plausible, and Pakistan was found to have violated Jadhav's
rights under Article 36 of the Vienna Convention. The Court also highlighted
the importance of establishing a causal link between provisional measures and
the parties' rights, as well as the urgency of such measures. India argued that
all states can claim consular protection under the Vienna Convention when their
nationals are detained or imprisoned. The ICJ noted that it only needs to
determine whether these rights are plausible at the provisional measures stage,
not definitively establish their existence. The Jadhav case became an example
of human rights preservation, prompting Pakistan to allow Jadhav's family to
meet him. The ICJ stressed the need to demonstrate a causal link between the
order of provisional measures and the parties' rights to prove irreparable
prejudice, similar to Pakistan's violation of natural justice by sentencing
Jadhav to death without a hearing. The case has been a notable example of
pushing the boundaries of legal interpretation of international agreements.
Overall, the case underlined the importance of the International Court of
Justice to prevent the violations of laws. The verdict of the case was a big
win for India I applaud the decision of the court that helped the good to win
over evil.
Article Information
ANALYSIS OF INDIA V. PAKISTAN (JADHAV CASE): INTERNATIONAL LEGAL IMPLICATIONS AND DIPLOMATIC TENSION BY: AYUSHI A. MALIK
Authors: AYUSHI A. MALIK
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/05
- Issue 7
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