This Case Commentary is written by Jyoti Bhakta, a First Year Law Student of Vit School Of Law, Vellore Institute Of Technology, Vit Chennai

COURT:
International Court of Justice (ICJ), The Hague, Netherlands

BENCH:

• President: Abdulqawi Ahmed Yusuf

• Vice-President: Xue Hanqin and

• Judges - Dalveer Bhandari, Tassaduq Hussain Jillani, Peter Tomka, Ronny Abraham, Mohamed Bennouna, Antonio Augusto Cancado Trindade, Joan E. Donoghue, Giorgio Gaja, Julia Sebutinde, Patrick Lipton Robinson, James Richard Crawford, Kirill Gevorgian, Nawaf Salam, Yuji Iwasawa, and Philippe Gautier.

CASE TYPE:

Application Instituting Proceedings under Article 36 of the Statute of the ICJ and the Vienna Convention on Consular Relations, 1963.

DECIDED ON:
July 17, 2019

PARTIES:

• Appellant (Applicant): Republic of India

• Respondent: Islamic Republic of Pakistan

CITATION:

• India v. Pakistan (Kulbhushan Jadhav Case)

• ICJ Reports 2019, p. 418

• ICJ Judgment, July 17, 2019

1. Abstract

The Kulbhushan Jadhav case stands as one of the most significant diplomatic and legal battles between India and Pakistan, involving allegations of espionage and terrorism. The International Court of Justice (ICJ) was called upon to adjudicate a case that highlighted issues under the Vienna Convention on Consular Relations (VCCR), 1963, and underscored the importance of diplomatic protection and consular access. The case revolved around the arrest, trial, and sentencing of the death of an Indian national by Pakistani military authorities. India’s legal challenge focused on Pakistan’s failure to grant consular access to Jadhav, raising pertinent questions about state sovereignty, diplomatic protection, and international human rights standards. This article provides a detailed examination of the facts, issues, legal arguments, key provisions, and the ICJ’s ruling in this landmark case.

2. Introduction

The case of Kulbhushan Jadhav represents yet another telling epitome that treads a tightrope path straddling India's and Pakistan's complicated and evocatively threatened diplomatic relations, deftly emphasizing their years-long ideological rivalry since the two nuclear-armed states are armed. A national from India, Kulbhushan Jadhav was arrested by Pakistan in 2016 under accusations of espionage and unfolding terror. He was tried in a military court and sentenced to death in April 2017. India approached the International Court of Justice (ICJ) alleging that Pakistan was contravening international law by not granting Jadhav consular access, which was a right guaranteed under the Vienna Convention on Consular Relations, 1963. ICJ's jurisdiction was restricted to deciding whether or not Pakistan had contravened its obligations under international law and, if so, what remedies should be granted.

The case attracted global attention, not only because it involved two of the world’s most prominent geopolitical rivals but also because it raised fundamental questions about the application of international law in cases of espionage and terrorism.

The present case arose against the background of a strained diplomatic relationship between India and Pakistan-two nuclear neighbors having an imbroglio of a relationship throughout history. Kulbhushan Jadhav's arrest added yet another complexity to an already tense bilateral dialog on cross-border terrorism and espionage allegations.

3. Facts of the Case

3.1 The Arrest of Kulbhushan Jadhav:

· On March 3, 2016, Kulbhushan Jadhav was arrested in the province of Balochistan by various Pakistani security forces. He was accused by Pakistan of being a serving officer in the Indian Navy, involved in espionage and sabotage activities on behalf of RAW, India's external intelligence agency.

· Accusations against Jadhav included allegedly fomenting unrest in Balochistan, sponsoring terrorism, and supporting separatist movements.

3.2 Confession and Trial:

· According to Pakistan, Jadhav confessed to his involvement in espionage and terrorism in a videotaped confession that was aired on the national media and said to have been made voluntarily. India challenged the legitimacy of this confession.

· Jadhav was tried by a military court in Pakistan in a secret trial under the Pakistan Army Act. There had been many criticisms against the opacity of the proceedings, fresh evidence is not collated easily, and he was convicted of espionage and terrorism. He was sentenced to death by hanging on April 10, 2017.

3.3 India's Response:

· India said that Jadhav had retired from the Indian Navy in 2002 and had been doing business in Iran. He was alleged to have been abducted from Iran by Pakistani Forces and framed on false charges thereafter.

· From the date of Jadhav's arrest, India made several requests for consular access to Pakistan as per the provisions enshrined in the Vienna Convention on Consular Relations (VCCR), but these were consistently turned down by Pakistan. Consequently, it was the view of India that the acts of Pakistan had contravened Jadhav's rights under International Law.

3.4 Proceedings at the ICJ:

· India, on May 8, 2017, instituted proceedings against Pakistan at the ICJ, requesting an injunction to stay the execution of Jadhav, asserting that by so doing, Pakistan had violated Article 36 of the Vienna Convention on Consular Relations.

· The ICJ granted an indication of provisional measures on May 18 impeding Pakistan from any action of execution against Jadhav, pending resolution of the case.

4. Issues Before the ICJ

4.1 Violation of Article 36 of the VCCR:

The core matter on which the ICJ was subsequently informed was whether Pakistan's refusal to afford Jadhav consular access constituted a breach of international law under Article 36 of the VCCR. Article 36 mentions that consular officers shall be able to communicate with and assist their nationals detained in a foreign state.

4.2 Applicability of the VCCR in Espionage and Terrorism Cases:

According to Pakistan, the provisions of the VCCR could not stand here, as Jadhav's alleged activities, which were characterized as acts of espionage and terrorism were a direct assault on Pakistan's national security. The ICJ would rule as to whether the actors covered under Article 36 are also authorized to get their consular rights in case of their prosecution for such heinous crimes.

4.2 Right to a Fair Trial:

India contended that Jadhav's military trial was neither held by international human rights standards nor with the guaranteed conventions, such as the right to a fair trial under the International Covenant on Civil and Political Rights (ICCPR). The ICJ was called upon to determine whether Jadhav's due process rights were breached during his trial in Pakistan.

4.3 Remedies Sought:

India asked for several remedies, which encompassed the annulment of Jadhav's death sentence and his subsequent release, and was directed to instruct or compel Pakistan to afford consular access by its obligations under the VCCR.

5. Questions of Law

· Question-1: Is the judgment of the Military Court of Pakistan administered to Kulbhushan Jadhav obnoxiously rendered illegal?

· Question 2: Has Pakistan violated the provisions enshrined under the Vienna Convention on Consular Relations (VCCR) and International Covenant on Civil and Political Rights (ICCPR) by denying Consular access to Kulbushan Jadhav?

· Question-3: Did the ICJ have jurisdiction to hear the present matter and entertain an application relating therewith?

· Question-4: Was the Vienna Convention on Consular Relations, implicitly, or not applicable, in the case of terrorism and espionage?

· Question-5: Is “Pakistan’s demand right" that India should assist in the investigations of the case against Jadhav that would serve as a precondition for granting consular access to India as per Article 36, or is this "obligation" under Article 36 conditional in nature?

· Question 6: Will the aforementioned bilateral agreement concluded between India and Pakistan in 2008 override the existing Vienna Convention on Consular Relations?

· Question-7: Will the bilateral agreement affect the enforcement of the Vienna Convention on Consular Relations?

· Question-8: Whether ICJ have jurisdiction in the present case under Article 1 of the Option Protocol?

6. Analysis

The Kulbhushan Jadhav case raised basic questions about the interpretation and application of international treaties, especially with respect to the Vienna Convention on Consular Relations (VCCR), in cases involving espionage and national security. India has based its arguments on the fundamental right of consular access, while Pakistan grounds its defenses upon national security.

6.1 India’s Arguments:

• Violation of Article 36 of the VCCR: The clear and uncontradictable evidence was that the Pakistani Government constituted a blatant violation of Article 36(1) of the VCCR, in that they failed to inform Jadhav of his right to consular access when he was captured and refused any consular communications out of India. Consular access is so vital to ensure the right of Jadhav to a legal presentiment and the right to a fair trial.

• Right to a Fair Trial: India claimed that Jadhav's trial by a military court was closed and there was no avenue for appeal, and hence, it violated international legal standards. It also asserted that coercive extraction of confession nullified the whole process of law.

• Role of the ICJ: India established that the ICJ had jurisdiction under the Optional Protocol as an instrument of the Vienna Convention on Consular Relations to which India and Pakistan were parties, allowing it jurisdiction over disputes arising from commandeering and interpretation thereof.

6.2 Pakistan’s Arguments:

· Espionage and National Security: Pakistan asserted that Jadhav was an active Indian naval officer engaged in acts of espionage and sabotage against Pakistan, contributing to grave losses to national security. Pakistan stated that any person indulging in such acts could not receive protection according to the provisions of the VCCR.

· Pakistan's Sovereignty: According to Pakistan, the trial of Jadhav is an internal right of Pakistan to conform with its national laws, and as such, the ICJ has no authority to deal with matters of national security.

· Procedural Concerns: According to Pakistan, Jadhav admitted to having, by MRI, distinctive traces leading to India, for which India must give an explanation intertwined with formal documentation by international codes.

7. Relevant Provisions

7.1 Vienna Convention on Consular Relations, 1963 (Article 36):

The terms of Article 36 indicate that consular officers have the right to communicate and visit their nationals abroad who are under arrest or detention. It puts an obligation on State authorities to give notice to foreign nationals of their right to consular assistance so that they can seek legal and diplomatic support from their country.

7.2 International Covenant on Civil and Political Rights:

ICCPR guarantees individuals the right to a fair trial which includes, for example, the people who may have the right to legal representation, a right to be told of charges, and a right to an appeal of conviction.

8. Key Elements of the Judgment

The court pronouncement was issued on July 17, 2019, and details an extensive degree of agreement with India's position. The pivotal aspects of the judgment are in brief:

• The ICJ ruled that Pakistan had violated VCCR: The ICJ had found that Pakistan had violated the principles of Article 36 of the VCCR by failing to inform Jadhav of his rights and denying India consular access. The ICJ dismissed Pakistan's argument that the VCCR did not apply in cases of espionage, affirming that the Treaty applied to any individual regardless of the nature of the allegations against him.

• The stay of execution: The ICJ ordered Pakistan to continue the stay of execution against Jadhav, ordering that the previously stipulated stay of execution from provisional measures in 2017 must be adhered to. The Court stated that execution should not go through before Pakistan complied with the ICJ order.

• Consular Access: Pakistan was directed to grant immediate consular access to Jadhav. It noted that the provision of consular access is a fundamental right under the VCCR and is not to be denied even if the allegations were espionage.

• Review and Reconsideration of the Conviction: The ICJ did not annul Jadhav's military conviction but ordered that Pakistan set up an effective review and reconsideration process regarding the conviction and sentence. The review must be conducted in compliance with the rights to a fair trial and the rights guaranteed by the VCCR.

• Effective Remedy: The ICJ found that Pakistan is under an obligation to afford Jadhav an effective remedy encompassing legal processes of review which accord with international standards of due process.

9. Conclusion

The Kulbhushan Jadhav case has important implications for international law, particularly for the application of the Vienna Convention on Consular Relations in cases involving espionage and national security. The ICJ ruling upheld the universal applicability of the VCCR and the essential entitlement to consular access, even when grave charges of espionage are involved. Though the judgment did not achieve Jadhav's immediate release or annulment of his conviction, it did lay a foundation for the treatment of foreign nationals and respect for diplomatic protection. There remains a close watch on the case since Pakistan is bound to ensure full compliance with the directive and conduct consideration for Jadhav's sentence.

The Kulbhushan Jadhav case is an important push for the development of international law as regards consular rights and the broader issue of national security consideration. The ICJ upheld the fundamental character of consular access rights. The ICJ said such rights could never be derogated, even in cases in which serious allegations of espionage and terrorism were made. The specific repercussions of the case are:

· Interpretation and application of VCCR

· Interaction between international law and national security

· Protection of the rights of foreign nationals

· International courts' roles in bilateral disputes

The judgment also underscores the need for effective review and reconsideration mechanisms in cases that may involve violations of international law if such violations may have affected the outcome of criminal proceedings.

References

1. International Court of Justice. (2019). Judgment in the Jadhav Case. Available at [ICJ Official Website].

2. Vienna Convention on Consular Relations, 1963.

3. International Covenant on Civil and Political Rights (ICCPR).

4. India's Application to the ICJ in the Kulbhushan Jadhav Case, 2017.

5. Pakistan's Counter-Memorial in the Kulbhushan Jadhav Case, 2019.

6. Articles and commentary from legal scholars on the ICJ’s interpretation of the VCCR in espionage cases.