Indian Council of World Affairs

The International Court of Justice (ICJ) judgement in Kulbhushan Sudhir Jadhav case was announced on July 17, 2019 which prompted the two parties—India and Pakistan—to go public about their reaction. The Ministry of External Affairs (MEA) statement welcomed and termed it a “landmark judgement” in its favour and one that validated the Indian position on the issue.¹ On July 18, 2019 Indian External Affairs Minister S. Jaishankar apprised Parliament about the outcome of the Jadhav Case. He said that the Court had found Pakistan guilty of not respecting Vienna Convention on Consular Relations and ordered it to give consular access to India and review and reconsider the conviction as well as the sentence of Jadhav in an effective manner.²

In contrast, Pakistan’s Ministry of Foreign Affairs stated that International Court of Justice (ICJ) did not accept the Indian pray of acquitting/releasing Kulbhushan Jadhav.³ It accused Kulbhushan Jadhav of entering Pakistan without a visa on an authentic Indian passport as well as being involved in terror related activities and concluded by saying that it was a clear case of Indian state terrorism.⁴ Pakistani Prime Minister Imran Khan appreciated the ICJ decision “not to acquit, release and return” Kulbhushan Jadhav.⁵ Maj. Gen. Asif Ghafoor spoke to Pakistani TV channel ARY News and congratulated the nation on the “success achieved.” He claimed victory and the ICJ having “upheld the verdict (by the Military Court).”⁶ For him the review and reconsideration of the case within Pakistan, as ordered by the ICJ, is a validation of Pakistani judicial system.⁷ He went on to state that India was surprised again and termed the development “another February 27”—relating to the dogfight that took place between the forces of India and Pakistan.⁸ A careful reading of the very different official reactions from New Delhi and Islamabad/Rawalpindi underlines the antagonistic approaches adopted by two countries over the issue.

The Judgement

In the beginning of the judgement, the Court underlined its jurisdiction by stating that “The Court has jurisdiction under Article I of Optional Protocol to Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.”⁹ And the “Dispute relates to interpretation and application of Vienna Convention on Consular Relations.”¹⁰ Since both—India and Pakistan are parties to the Vienna Convention as well as the Optional Protocol without any reservations or declarations, the Court was well within its right to decide any dispute between the parties over the interpretation and application of the Convention. India is a party to the Vienna Convention since December 28, 1977 and Pakistan since May 14, 1969.

The 42-page judgement is a significant document emerging from the ICJ. One does not need to be an expert or a student of Law to go through and make sense of it. It is written in a simple and lucid language, which allows its reach to a wider audience. There is hardly any scope for speculation in it as the Court has made an honest attempt to clarify anything and everything about the case. On any point or issue, the court lists the arguments presented before it by both the parties—India and Pakistan. After carefully analysing the arguments of both the sides, the Court goes on to state its own position. In so doing, it also explains in detail why the court took the stand it did on any particular issue or point.

Pakistani Objections on Indian Application

Pakistan raised three categorical objections against the admissibility of India’s application. These objections were in respect to India’s alleged abuse of process, alleged abuse of rights, and alleged unlawful conduct. Regarding the first objection (alleged abuse of process), Pakistan argued that India ignored the constitutional right to lodge a clemency petition within a period of 150 days after Jadhav’s sentence. India did not consider using “other dispute settlement mechanisms envisaged in Articles II and II of the Optional Protocol.”¹¹The second objection pertained to alleged abuse of rights against which Pakistan raised three main arguments:

• India refused to provide evidence of Jadhav’s nationality.
• India did not respond to Pakistan’s request to assist in the criminal investigation.
• India authorised Jadhav to conduct espionage and terrorist activities in Pakistan.

The third objection was related to India’s alleged unlawful conduct for which Pakistan invoked the doctrine of “clean hands” and principles of “ex turpi causa non oritur action.”¹²The Court examined these objections one by one and in the end rejected all and declared India’s application to be admissible.

Relevant Sections of Vienna Convention and Optional Protocol

The Vienna Convention on Consular Relations was agreed upon on April 24, 1963 at Vienna, Austria. With the purposes and principles of the UN Charter in mind, there are international treaty came into existence which defined the framework for consular relations between the sovereign states of the international system. Article 36 of the Vienna Convention on Consular Relations and Article I of the Optional Protocol are relevant for this case. The Optional Protocol was adopted by the UN Conference in Vienna in March 4-April 22, 1963. It states that:

• Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the ICJ 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.¹³

Article 36 of Vienna Convention, which deals with communication and contact with nationals of the sending State, states that:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
   1. 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;
   2. 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 thatState 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 sub-paragraph;
   3. 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.
2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.¹⁴

Exceptions Sought by Pakistan

Once the Pakistani objections were rejected and the Indian application was accepted, Pakistan sought exceptions from the applicability of Article 36 of Vienna Convention on three grounds:

1. Vienna Convention does not apply in “prima facie cases of espionage.”
2. Customary International Law governs cases of espionage in consular relations and allows states to make exceptions to the provisions on consular access.
3. A 2008 Agreement on Consular Access between India and Pakistan regulates consular access in the present case. 

The Court examined these points in detail and observed that neither Article 36 nor any other provision of the Vienna Convention contained any reference to cases of espionage, thus it concluded that Article 36 did not exclude from its scope certain categories of persons, such as those suspected of espionage. The preamble of the Vienna Convention categorically states that “the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention”, thus the Court considers that Article 36 governs the matter at hand. The Court also declared that the 2008 Agreement does not displace the obligation under Article 36.

The Violation of Article 36

After rejecting Pakistan’s objections to the admissibility of India’s application and then ruling out any exception, the Court took up the question whether Pakistan violated Article 36 or not. Indian position on the issue was that it did not know whether Pakistan had informed Jadhav of his rights under Article 36, paragraph 1 (b). Pakistan did not argue that Jadhav was informed of his rights. Article 36, paragraph 1 (b) requires the competent authorities to inform a foreign national in detention of his rights. Since, Pakistan did not contest Indian contention and kept arguing that Article 36 did not apply in this case, it was easy for the Court to conclude that Pakistan had breached its obligation under paragraph 1 (b) of Article 36.

It is important to note the Pakistan had shown that Jadhav was arrested on March 3, 2016 and notified India about it after three weeks, i.e. on March 25, 2016. Article 36 requires notification in such cases “without delay”, however, the Court mentions that “without delay” is to be understood as “immediately upon arrest and before interrogation.”Thus, the Court also found Pakistan in breach of its obligation to inform “without delay” as required under Article 36.

The Court also took up the issue of Pakistan not providing consular access despite several requests by India in this respect. India had made at least 10 such requests since March 25, 2016. In a Note Verbale on March 21, 2017, Pakistan stated that, “the case for the consular access to the Indian national… shall be considered, in the light of Indian side’s response to Pakistan’s request for assistance in investigation process and early dispensation of justice.”¹⁵ This was an attempt by Pakistan to make consular access conditional. The Court was of the view that India’s failure to cooperate with Pakistan in the investigation process does not justify Pakistan’s denial of consular access. The Court categorically stated that a State cannot condition the fulfilment of its obligation under Article 36 and concluded that Pakistan had breached the obligation incumbent on it under Article 36, paragraph 1 (a), (b), and (c) of the Vienna Convention.

The Relief Sought by India

Having established that Pakistan breached Article 36 of the Vienna Convention, it would be pertinent to underline the relief sought by India from the ICJ. In the first place, India had requested the Court to adjudge and declare that Pakistan acted in egregious breach of Article 36. India requested the Court to declare:

1. India’s entitlement to restitutio in integrum.
2. Immediate suspension of the death sentence.
3. Restrain Pakistan from giving effect to the sentence.
4. Direct Pakistan to take steps to annul the decision of military court.
5. Direct Pakistan to release the convicted Indian national forthwith.¹⁶

India also made an alternate request that in case the Court did not order Jadhav’s release,  it annul the decision of military court or direct Pakistan to take steps to annul the decision. In addition, India requested ICJ to direct a trial before civilian courts (excluding Jadhav’s confession) with full consular access to India.

Pakistan contended that the relief sought by India could only be granted by an appellate criminal court and maintained that restitution to the status quo ante was not an appropriate remedy. Pakistan stated that the appropriate remedy would be, at most, effective review and reconsideration of the conviction and sentence. Pakistan also argued that judicial review and clemency procedures were already available to Jadhav. Besides, Pakistan added that the conduct of India and Jadhav must be taken into account in any consideration of relief.

The Remedy

Having established that Pakistan breached Article 36 of the Vienna Convention, the Court went on to formulate the appropriate remedy in the case. Firstly, the Court directed Pakistan to inform Jadhav of his rights under Article 36, paragraph 1 (b), and allow Indian Consular Officers to have access to him and to arrange for his legal representation. Secondly, the Court considered effective review and reconsideration of conviction and sentence of Jadhav as the appropriate remedy in this case. The Court observed that the judicial process was suited to the task of review and reconsideration. The Court ruled out the clemency process as an insufficient remedy and made it clear that appropriate clemency procedures can supplement judicial review and reconsideration. It further emphasised that principles of a fair trial were of cardinal importance in any review and reconsideration. The choice and means of effective review and reconsideration was left to Pakistan. The ICJ also made it clear that “a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Jadhav.”

The Court did not provide any other relief, as sought by India, and underlined that its jurisdiction based on Article I of the Optional Protocol was limited to the interpretation or application of the Vienna Convention. Thus, India’s requests regarding conviction and sentence of Jadhav had nothing to do with Article 36 of the Vienna Convention and were beyond the jurisdiction of the Court.

Recent Developments

Soon after the ICJ verdict, Pakistan’s Ministry of Foreign Affairs issued a press release. The July 18, 2019 press release categorically mentioned that Kulbhushan Jadhav had been informed of his rights under Article 36, Paragraph 1 (b) of the Vienna Convention on Consular Relations. It also stated that Pakistan, as per the law of the land, would grant consular access to Jadhav. On August 1, Pakistan formally approached India with an offer of Consular access to Jadhav on August 2, 2019. Since this proposal had certain conditions attached to it, such as the presence of a Pakistani official during the meeting between Jadhav and Indian Consular Officials, India asked Pakistan to provide “unimpeded” consular access in a free environment. Pakistan has turned down the Indian demand of “unimpeded” consular access.¹⁷ There is no communication on this issue since, at least in the public domain.

Conclusion

There is hardly any doubt about the Pakistani intention about the present case. As Ambassador Vivek Katju suggests, “Pakistan for long was looking for a ‘silver bullet’ to implicate India in cases of terrorism in Pakistan.” This is one such ‘silver bullet’, although a fabricated one, which Pakistan has managed to produce. Given the nature of the Pakistani state and India-Pakistan relations, the security establishment would like to keep the ‘silver bullet’ as long as it can. To this end, Pakistan would not hesitate to manipulate the ICJ judgement. The way this particular judgment is being interpreted in Pakistan and the conditional offer of consular access are steps in that direction. However, everything is not lost and one can hope that diplomatic moves in the end would help the two countries resolve the issue.

***

* The Author, Research Fellow  at Indian Council of World Affairs, New Delhi.

Disclaimer: The views expressed are that of the Researcher and not of the Council.

End Notes

1MEA (2019), “Statement on ICJ verdict on the Jadhav case,” Press Release, Ministry of External Affairs, New Delhi, 17 July 2019.

2MEA (2019), “External Affairs Minister’s statement in the Parliament regarding KulbhushanJadhav,” Speeches & Statements, Ministry of External Affairs, New Delhi, 18 July 2019.

3MOFA (2019), “Judgement of International Court of Justice on Commander KulbhushanJadhav,” Ministry of Foreign Affairs, Islamabad, 17 July 2019.

4Ibid.

5The Dawn (2019), “PM appreciates ICJ’s decision to not acquit, release Jadhav; says Pakistan will proceed as per law,” 18 July, 2019, https://www.dawn.com/news/1494785

6ARY News (2019), Maj. Gen. Asif Ghafoor’s Interview by ARY News, 17 July 2019, https://www.youtube.com/watch?v=MOJF67yetDc

7Ibid.

8Ibid.

9ICJ (2019), Jadhav Case: India vs Pakistan, Hague: The International Court of Justice, General List No. 168, 17 July 2019, p.

10Ibid.

11Ibid, p. 15.

12Ibid, p. 18.

13UN (1964), Optional Protocol Concerning the Compulsory Settlement of Disputes, New York: United Nations, p. 2.

14United Nations (2005), Vienna Convention on Consular Relations 1963, New York: United Nations, p. 15.

15ICJ (2017), Application Instituting Proceedings: Case Concerning the Vienna Convention on Consular Relations (India vs. Pakistan), Hague: International Court of Justice, pp. 6-7.

16Ibid, pp. 30-32.

17Hindustan Times (2019), “‘No talks’, says Pak on Jadhav, rejects demand of unimpeded consular access,” 8 August 2019, https://www.hindustantimes.com/india-news/pakistan-turns-down-india-s-demand-of-unimpeded-consular-access-to-kulbhushan-jadhav/story-3PFNqQfipKbsa5RBrHPpeL.html