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THE CASE OF KULBHUSHAN JADHAV IN THE LIGHT OF INTERNATIONAL LAW

INTRODUCTION

On 9th May, 2017, according to a press release issued by the International Court of Justice
(ICJ), India instituted legal proceedings before it against Pakistan with reference to its national
Kulbhushan Jadhav. With this official press release, the hitherto political and military discourse
of India-Pakistan relationship was subjected to legal analysis, encompassing both international
law and national law. This article will briefly present the facts of the case and international law
perspectives of India and Pakistan, respectively.

FACTS

According to Pakistan, it arrested Kulbhushan Jadhav from Mashkel area in its province of
Balochistan on 3rd March, 2016. It alleged that Kulbhushan was involved in espionage and
sabotage activities against Pakistan. His confessional statement was aired through media after
sometime. Then he was put to trial before a court, which found him guilty of offences of spying
under Section 3 of the Official Secrets Act, 1923 read with Section 59 of the Pakistan Army Act,
1952. On the other hand, according to the press release of the ICJ, India took the following
factual position: that Kulbhushan was “kidnapped from Iran, where he was carrying on business
after retiring from the Indian Navy, and was then shown to have been arrested in Balochistan”.

Clearly, the two countries have differing facts, but the delay on part of India to take a factual
position may be fatal, insofar as the veracity of its version is concerned. The adjudication of
facts, it may be noted, is beyond the scope of the jurisdiction of the ICJ in terms of Article 36 (1)
of the ICJ Statute.

INDIA’S CLAIM

In the nutshell, India has requested for four reliefs from the ICJ, which are:

a. Suspension of the sentence of death awarded to Kulbhushan;


b. The second relief that India has prayed for is restitution in interregnum (restoring to prior
condition) by declaring that Pakistan has:
i. Violated Article 36(1) (b) of the Vienna Convention on Consular Relations, 1963
(VCCR) by denying it access to Kulbhushan. For ready reference, Article 36 (1)
(b) is reproduced hereunder:

“With a view to facilitating the exercise of consular functions relating to nationals of the sending
State if so requested, 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 that
State 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
subparagraph;

ii. Defied elementary human rights under Article 14 of the International Covenant on
Civil and Political Rights, 1966 (ICCPR). Article 14 of the ICCPR reads: All
persons shall be equal before the courts and tribunals.

1. In the determination of any criminal charge against him, or of his rights and obligations in a
suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent
and impartial tribunal established by law. The Press and the public may be excluded from all or
part of a trial for reasons of morals, public order (order public) or national security in a
democratic society, or when the interest of the private lives of the parties so requires, or to the
extent strictly necessary in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit
at law shall be made public except where the interest of juvenile persons otherwise requires or
the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the


nature and cause of the charge against him?
(b) To have adequate time and facilities for the preparation of his defense and to
communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal assistance,
of this right; and to have legal assistance assigned to him, in any case where the
interests of justice so require, and without payment by him in any such case if he
does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as
witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the
language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure will take account of their age and the
desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being
reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has been pardoned on the ground that a
new or newly discovered fact shows conclusively that there has been a miscarriage of justice,
the person who has suffered punishment as a result of such conviction shall be compensated
according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly
or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already
been finally convicted or acquitted in accordance with the law and penal procedure of each
country.” Restraining Pakistan to give effect to death sentence;
c. If Pakistan is unable to annul the conviction decision against Kulbhushan, then ICJ to
declare the decision of conviction by Pakistan to be volatize of international law.

In providing legal basis for jurisdiction of the court, which has to be shown in every case taken
to the ICJ, India has pegged its claim into Article I of the Optional Protocol to the Vienna
Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963
(OP-VCCR) read with Article 36(1) of the Statute of the ICJ, which is an annex to the UN
Charter. This jurisdictional basis may be invoked to the extent of the VCCR, but may not be
invoked to the extent of ICCPR. Besides, it may be noted that India has not based its claim on
Article 36(2) of the ICJ Statute, which provides for compulsory jurisdiction through punctuated
declarations; instead, India’s claim is based on Article 36(1), which links the ICJ Statute to the
treaties (in this case to the VCCR), therefore, essentially, the reliance is on Article I of the OP-
VCCR, which is in the nature of compromiser jurisdiction that does not have as binding an effect
as the compulsory jurisdiction has.

PAKISTAN’S DEFENCE

Pakistan’s case has various options as far as reasoning of its defense is concerned. The lines of
defense may span over the following points:

1. On the technical side, Pakistan must attack the jurisdictional aspect of the case. The
jurisprudence of jurisdiction as developed by the ICJ is not simplistic. It has been
cautious in assuming jurisdiction in most of cases brought before it. Invoking Article
36(1) of the ICJ Statute to link Article I of the OP-VCCR is a very tenuous basis. The ICJ
will have to examine the basis of the nature of the jurisdiction it will be assuming as
Article 36(1) of the ICJ Statute refers to compromiser jurisdiction, whereas Article I of
OP-VCCR refers to compulsory jurisdiction as it reads:

“Disputes arising out of the interpretation or application of the Convention shall lie within the
compulsory jurisdiction of the International Court of Justice 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”

Apparent the conflict between the types of jurisdiction will surely help Pakistan to evince
limitations of the ICJ on its jurisdiction.
2. Secondly, Sikandar Ahmed Shah and Abid Rizvi, two international lawyers of Pakistan,
in their article „ICJ‟s limited Jurisdiction‟ in daily Dawn on 13th May, 2017, have
explored the line of arguments, which may be considered useful. Their arguments are:
a. The ICJ‟s jurisdiction is limited as it can only look at the interpretation or application
of VCCR;
b. As Pakistan is a dualist state requiring its international legal obligations to be
legislated nationally before the same could be considered binding, the VCCR was
not nationally legislated in the Diplomatic and Consular Privileges Act, 1972,
therefore, it cannot be construed to have permeated into the national legal system.
c. The circumstances that prevail between India and Pakistan are by no means normal,
and thereby, the applicable international law is the International Humanitarian Law
(IHL). In these circumstances, and in the light of the Additional Protocol I to the
Geneva Conventions, 1977 (AP-I), the law of armed conflict may be applied. Article
46 of AP-I deals with Spies who do not enjoy the protection afforded to combatants
or to the prisoners of war (POW). He is only entitled to the fundamental guarantees
stated in Article 75 of the AP-I. The argument of extending the AP-I to this case,
would invariably, imply admitting to existence of an international armed conflict
between India and Pakistan; this position must be cautiously adopted as it may have
unintended legal consequences for Kashmir Dispute between the two countries.
d. The authors have cited the case of Medellin vs. Texas that was decided by the US
Supreme Court in 2008. The case was about the permeability of international law
into the national law without specific national legislation to that effect. The moot point
in the case was similar to Kulbhushan case where the consular access was denied
to a criminal who had, with others, gang raped two girls in Texas. It may be noted
that Medellin case was based on Avena case ,which was decided in 2004, and in
which 54 Mexican citizens were not given consular access by the US. The ICJ had
decided in favor Mexican, but the US Supreme Court did not agree to implement the
ICJ decision.
3. Justice Ali Nawaz Chowhan, a distinguished international lawyer, a former judge of the
ICJ, and present Chairman of the National Human Rights Commission is reported to
have stated that the claim by India is premature, as the criminal process according to the
Constitution of Pakistan has not yet finished, and this ground of pre-mature claim can be
used by Pakistan.
4. The ICJ Statute, in its Article 30, provides that the ICJ can frame rules for carrying out its
functions. Consequently, it framed Rules of Court in 1978. As there is no legal provision
in the legal framework under which the ICJ functions for stay, India has made an
application under Rule 74(4) for „provisional measure‟ order against Pakistan. Rule 74
(4) of the ICJ Statute is not aproduct of treaty making process, therefore, Pakistan can
challenge the very basis of the Rule in its pleadings. Even otherwise, the language of the
Rule is not forceful. It reads:

“Pending the meeting of the Court, the President may call upon the parties to act in such a way
as will enable any order the Court may make on the request for provisional measures to have its
appropriate effects.”

5. As pleaded by India, it intends to question the conviction and death penalty imposed by
the military court; the averment is not likely to be accepted by the ICJ. Pakistan‟s best
course is to argue that it applied its national law and a court of competent jurisdiction
dealing with such offences dealt with the matter. The death penalty and military courts
both form part of the criminal justice system of Pakistan, on the strength of „principle of
sovereign equality‟ as preserved in Article 2(1) of the UN Charter. For ready reference,
Article 2(1) is reproduced: “The Organization is based on the principle of the sovereign
equality of all its Members.”
6. The non-existence of „dispute‟ between Pakistan and India may be another ground.

Pakistan must make efforts to show that there is no „dispute‟ of international level in the case as
it successfully did in Marshall Islands Case in 2016 where the ICJ found that there was no
„dispute‟ between Pakistan and Marshall Islands. India will try its best to internationalize the
matter to meet the threshold jurisdictional requirement of the ICJ.

7. An aspect, which may be factored into Pakistan’s defense on technical side qua
jurisdiction, is the Agreement on Consular Access (ACA) between Pakistan and India
that was signed on 21st May, 2008. The ACA provided, in its clause (vi), it has been
stipulated that „in case of arrest, detention or sentence made on political or security
grounds, each side may examine the case on its merits‟.

The language of this clause (vi) of ACA is general and it may enable Pakistan to argue that the
effect of Article 1 of OP-VCCR has been superseded by the ACA that was echoed in the Joint
Statement of 21st May, 2008 (after the Foreign Minister level review of the Fourth Round of
Composite Dialogue between India and Pakistan).

8. With regards to the issue of jurisdiction of the ICJ between Indian and Pakistan, one is
reminded of the case of Aerial Incident of 10th August, 1999 (Pakistan vs. India). In that
case, India relied on its Declaration (dated 18th September, 1974) to the compulsory
jurisdiction under Article 36(2) that provided exclusionary grounds from the compulsory
jurisdiction of the ICJ. The Declaration was given weight by the ICJ on two counts: one,
no case could be brought by a country that was or had been a member of the
Commonwealth (Para 1(2)); two, that Pakistan was barred to bring a claim on the basis
of a multilateral treaty (Para 1(7)). The same Declaration, it is expected, will now stand in
India’s way. To be doubly sure, Pakistan has also submitted its Declaration (29th March,
2017-that is before the institution of the instant case by India on 9th May, 2017)
containing clauses ousting compulsory jurisdiction on „national security‟ basis.

FINAL REMARKS

The case is pending adjudication in the ICJ. With the limited jurisdiction of the ICJ in the matter
coupled with the fact that Indian claim is based on compromiser and not compulsory jurisdiction,
Pakistan should make endeavors to forcefully argue that the matter is not an international
dispute, and that the trial of Kulbhushan was conducted as per the national criminal law by a
competent court, and hence is fully protected under the principle of sovereign equality.

International Court of Justice and its Role in India Pakistan Relation

International Court of Justice (ICJ) is the principal judicial body of the United Nations (UN) to
resolve disputes at International level, though its origin predates the League of Nations. It was
established in June 1945 by the Charter of the United Nations and began work in April 1946. It
is the only organ, of the six organs of the United Nations not located in the New York, United
States of America. The seat of the Court is at the Peace Palace in The Hague, Netherland. The
role of the Court is to settle legal disputes submitted to it by States and to give advisory opinions
on the legal questions referred to it by authorized organs of the United Nations and specialized
agencies in accordance with international law.

The Court is composed of 15 judges1 , who are elected for the terms of office of nine years by
the United nations General Assembly (GA) and the Security Council (SC). All the 15 Judges of
the ICJ are elected for a nine year term, and one third of the membership is newly elected at
three year intervals. They are permitted for re-election. The judges do not represent the
governments of their home countries, and act entirely as independent authorities. To be eligible,
they must be sufficiently qualified to hold the highest judicial office in their home country or must
be a recognized authority on public international law

Functions of ICJ:

Recourse to the ICJ is optional. Bothe parties subject themselves voluntarily to its jurisdiction.
Thus any contesting party that files an application to the ICJ acknowledges its readiness to
comply with the Courts decision on the matter under dispute.

On the other hand, if one of the parties subsequently refuses to accept a decision, the ICJ
cannot enforce it against that countries will. Judicial execution would run counter not only to the
concept of the sovereignty of the states, but also to the experience which has thought that
conflicts between nations cannot be resolved by force, but only by establishing consensus.

The proceedings before the ICJ break down into a “written phase” during which the parties
submit and exchange the pleadings and an “oral phase” during which the agents and counsel of
the parties appear before the Court in public hearings. The proceedings of the Court takes place
in English and French, and all the written and oral submissions in one of those languages are
invariably translated into other. After the oral phase of the proceedings, the Court deliberates in
camera. Its decision is then announces at a public session. The decision is final, and has no
right to appeal. In case of one of the parties fails to comply with the decision of ICJ, the order is
entitled to the matter to the Security Council of the United Nation. The ICJ performs its duty as a
plenary body, but may also form smaller specialized chambers if the parties so wish.

Dispute Resolution of India at ICJ:

The statute of the ICJ regulates the functioning of the Court. All members of the UN are
automatic parties to the statute, but this does not automatically give ICJ jurisdiction over
disputes involving them. The ICJ gets jurisdiction only on the basis of consent of both parties.
India declared the matters over which it accepts the jurisdiction of the ICJ, in September 1974,
which has revoked and replaced the previous declaration made in September 1959.
Among the matters over which India does not accept ICJ jurisdiction
are:

 disputes with the government of any State which is or has been a Member of the
 Commonwealth of Nations, and
 disputes relating to or connected with facts or situations of hostilities, armed conflicts,
 Individual or collective actions taken in self-defense.

The declaration, which includes other exceptions as well, has been ratified by Parliament.

Indian Cases in the ICJ:

There are six incidents when Indian cases were put before the ICJ. Though it has been a

party in many cases, there are four of them with Pakistan, at the ICJ.

Case Concerning the Trial of Pakistani Prisoners of War (Pakistan Vs India:

In 1973, Pakistan filed a case to stop the repatriation to Bangladesh of 195 Pakistani nationals
in Indian custody after the 1971 War, to face trial on charges of genocide, but withdrew the case
the next year. After 1974, Pakistan, a Commonwealth nation, can no longer take India to the
ICJ.

Aerial Incident of 1999 (Pakistan Vs India, 1999): In 1999, Pakistan filed a case at the ICJ
regarding a dispute relating to the destruction of a Pakistani aircraft by India in 1999. Pakistan
contended that the ICJ had jurisdiction in this issue. India on the other hand contested the
jurisdiction of ICJ in the issue saying that Pakistan‟s application to the ICJ did not refer to any
treaty or convention in force between the two countries. In 2000, the court rejected Pakistan‟s
contention that the Simla Accord provides for disputes between the two countries to be
submitted to the ICJ. ICJ concluded that it had no jurisdiction to entertain the application filed by
Pakistan. At the same time, the court requested both the countries to settle their disputes by
peaceful means.

Case about the Obligation of Negotiations About Cessation of Nuclear Arms Race (Marshall
Islands Vs India, 2014):
The Republic of the Marshall Islands had instituted proceedings at the ICJ in 2014 against all
nuclear weapon states, including India, contending breach of customary law obligations on
nuclear disarmament (from Article VI of the NPT). India contended that the ICJ had no
jurisdiction in this case. In 2016 in its decision (by 9 votes to seven), the court ruled that it does
not have any jurisdiction on the issue in the absence of a dispute between the two countries.
The court further ruled that it cannot proceed to the merits of the case because of the lack of
jurisdiction.

Kulbhushan Jadhav Case:

Questions before the ICJ:

1. Whether ICJ have jurisdiction to decide the case?

2. Is the rights alleged by India are plausible?

3. Is there a link between the rights claimed and provisional measures requested?

4. Is there a risk of irreparable prejudice and urgency?

Article 73

1. A written request for the indication of provisional measures may be made by a party at any
time during the course of the proceedings in the case in connection with which the request is
made.

2. The request shall specify the reasons therefore, the possible consequences if it is not
granted, and the measures requested. A certified copy shall forthwith be transmitted by the
Registrar to the other party.

Article 74

1. A request for the indication of provisional measures shall have priority over all other
cases.

2. The Court, if it is not sitting when the request is made, shall be convened forthwith for
the Purpose of proceeding to a decision on the request as a matter of urgency.
3. The Court, or the President if the Court is not sitting, shall fix a date for a hearing which
will afford the parties an opportunity of being represented at it. The Court shall received and
take into account any observations that may be presented to it before the closure of the oral
proceedings.

4. Pending the meeting of the Court, the President may call upon the parties to act in such
a way as will enable any order the Court may make on the request for provisional measures to
have its appropriate effects.”

Conclusion:

The International Court of Justice (ICJ) on May 18 ‘stayed’ the execution of Kulbushan Jadhav
till its final verdict. The decision was made after India moved ICJ against Jadhav’s conviction in
Pakistan. Indians have called the ICJ decision as a major victory for India. However, they seem
to have ignored many facts which still are in favor of Pakistan. Kulbushan Jadhav, an active
Indian naval officer and an active Research and Analysis Wing (RAW) agent, was arrested in
March 2016 and was awarded death sentence on April 10, 2017 under the Field General Court
Martial (FGCM) in Pakistan.

1. The sentence evoked a sharp reaction in India which warned Pakistan of consequences
and damage to bilateral ties if the "pre-meditated murder" was carried out. India hastily took the
case to ICJ on May 8.

2. At ICJ, India had two major arguments: One, it sought ICJ intervention to ensure that
Jadhav is not executed while referring to 'the extreme gravity and immediacy of the threat; and
second accused Pakistan of ‘egregious violations of the Vienna Convention on Consular
Relations’.

3. Although the Court’s verdict has come in favor of India at the moment, however, it will
not yield substantial results. Pakistan still has not lost the case and there are many reasons for
this. To begin with jurisdiction of ICJ, a question rises whether the ICJ has the authority or some
legal basis to hear and decide this case? The ICJ’s jurisdiction applicability can be challenged
on a number of counts. Firstly, in terms of Article 93 of the UN Charter “all members of UN are
ispo facto parties of the ICJ”.
4. Also, under Article 36 (2) of the ICJ, states may submit a declaration and voluntarily
accept the ICJ 1 Pakistan sentences Indian spy Kulbhushan Jadhav to death.

Verdict on Jadhav Case:

The Battle is not Over Yet May 22, 2017 jurisdictions and allows the Court to settle their dispute.
However, in declaration, states may limit the grounds on which a case is brought against it.

5. India, in its declaration with ICJ signed in 1974 has limited the grounds that other
countries could take it to the ICJ and preclude international intervention under Article 36 (1).
Pakistan has also revised its commitment to the ICJ and has withdrawn all domestic and
national security related issues from the jurisdiction of the Court on March 29, 2017. With its
revised declaration, Pakistan is now on equal footing with the Indian declaration.

Indians themselves have acknowledged the declaration made by Pakistan’s ambassador to the
United Nations Maleeha Lodhi to ICJ.

The declaration stated that the issues related to its domestic sphere and national security issues
would no longer be part of the ICJ jurisdiction.

6. Thus, under these declarations, neither Pakistan nor India would be able to bring a case
such as Jadhav’s to the Court. Furthermore, the case India presented before the ICJ is about
alleged violation of the Vienna Convention on Consular Relation (VCCR), 1963.

The VCCR 1963 grants certain rights and obligations regarding consular relations. India referred
to Article 36 clause (a & b) of VCCR and stated that Pakistan has violated the Convention by
denying access to Jadhav.

7. This Article of VCCR grants the Consular officials the “right to visit national of the
sending State who is in prison, custody or detention, to correspond with him and arrange legal
representation.”

8. However, the Court in its decision has not indicated towards such measures. Also, the
VCCR does not provide any grounds for the termination of a decision of a domestic court.
Therefore, Jadhav’s trial or his sentence cannot be reversed by the Court. The Courts
Jurisdiction of the case can be challenged on many other grounds. Foremost among them is the
2008 Bilateral Agreement between Pakistan and India on Consular Access. The agreement
aims at “furthering the objective of humane treatment of nationals of either country’.

9. Both the countries had exchanged the lists of nationals detained or imprisoned in the
past and re-affirmed the agreement on multiple occasions. 10 Under this agreement, both India
and Pakistan agreed that “in case of arrest, detention or sentence made on political or security
grounds, each side may examine the case on its 5 Statute of International Court of Justice,
Article 36, Indian media says taking Jadhav case to ICJ might not be fruitful, Pakistan Today,
May 12, 2017.

A consular is generally a part of the diplomatic mission of a State in another State. In addition to
promoting economic and commercial relations between the two countries, consular officials also
look to protect their State’s interests in the host State, especially in relation to their citizens
present in the host State.

10. Joint Statement issued by India and Pakistan at Islamabad on Jadhav Case: This
provided an option for both the countries to deny consular access where national security
compulsions require. However, India is trying to distant itself from this agreement.

India contends that agreement is not registered with the UN and contradicts the VCCR, saying
consular access under the VCCR is absolute and cannot be limited under any circumstances.
This raises the question of why then did India enter into this agreement with Pakistan and has
been supporting it?

The other significant aspect which Pakistan can challenge is that how a serving Indian naval
official was engaged in systematic espionage on the behalf of his government in Pakistan. Such
arguments would make more sense at ICJ during the course of legal arguments in weeks to
come. ICJ’s decision cannot change the basic facts of the case that Jadhav is a ‘spy terrorist’.
India’s desperation to find a way to get consular access and meet Jadhav is a proof of the high
value of his role as an agent of India.

Thus, the legal battle is far from over. Pakistan has a strong case to plead at the end of the day
when each and every legal aspect of the case would be deliberated upon in regular hearings. It
is not a just confessional statement of Jadhav which supports Pakistan’s case, but his dual
passports to say the least. ICJ’s future decision will not change the fundamental reality that
India has been actively involved in promoting terrorism in Pakistan.
Moreover, India’s move to the ICJ is advantageous for Pakistan as it provided the chance to
open up all cases between India and Pakistan to multilateral jurisdiction, weakening India’s
stance that all issues with Pakistan would be resolved bilaterally. With India acceptance to ICJ’s
jurisdiction over bilateral issues, Pakistan could well demand that ICJ arbitrate on human rights
violations in Indian Occupied Kashmir, water issue and Indian aggression along Line of Control
and Working Boundary.