SVKM’s

NMIMS Kirit P. Mehta School of Law

A PROJECT SUBMITTED ON

KULBHUSHAN JHADAV: AN INTENSIVE STUDY

IN COMPLIANCE TO PARTIAL FULFILLMENT OF THE MARKING

SCHEME, FOR SEMESTER VI

IN THE SUBJECT OF

PUBLIC INTERNATIONAL LAW

SUBMITTED TO FACULTY:

Prof. Unni Ramchandran

FOR EVALUATION

SUBMITTED BY:

Garima Agrawal (A002)

 INDEX

Contents Pg No.

1. Introduction 2

2. Role Of International Court Of Justice 4

3. Jurisdiction Of The International Court Of Justice 5

4. Enforcement Mechanism Of The International Court Of Justice 8

5. Conclusion 11
“India has very important responsibility both in terms of bilaterally communicating to Pakistan as
to what we expect from them. I hope we are putting serious international pressure on Pakistan,
because what Pakistan was doing is a violation of International law and that’s what keeps nation
safe.”

-Shashi Tharoor

INTRODUCTION

On 10th April, Kulbhushan Jadhav of The Indian Navy was sentenced to death by Pakistan’s Field
General Court Martial for involvement in espionage and sabotage activities in Karachi and
Balochistan.

Jadhav was arrested in Pakistan’s Balochistan province for entering illegally near Chaman at
Pakistan’s border with Iran. At the time, he was operating under the pseudonym of Hussain
Mubarak Patel. He was believed to have been running a jewelry business in Iran while he
masqueraded as a scrap dealer in Pakistan. Jadhav allegedly crossed over the border multiple times
in the past to coordinate with Baloch insurgent groups in addition to meeting with militant
elements in Karachi, Pakistan’s biggest city and economic hub, which has been plagued with
criminal violence for several years now.

Soon after the arrest, rumors started that the Pakistani authorities had managed to nab an officer
of the Indian military inside Pakistan. The news was neither confirmed nor denied by government
sources until several days later and was followed promptly by a rare joint press conference with
the Inter-Services Public Relations (ISPR) head Lt. Gen. Asim Bajwa and Federal Information
Minister Pervez Rashid.

The press conference also featured a confessional statement from Jadhav, recorded on video,
where he admitted to charges of fomenting trouble in Balochistan and Karachi at the behest of
India’s Research and Analysis Wing. In the confession, Jadhav named several high-ranking
officers who he alleged were responsible for directing his activities in Pakistan.

Many senior intelligence operatives are opposed to the strategy adopted and by India to ensure the
safe release of Kulbhushan Jadhav from Pakistani incarceration.
The intelligence community says this circus in which Jadhav has come be just a pawn being played
out in the media is badly hurting the country's strategic interests and doesn't follow the rules under
which global intelligence agencies function.

An Indian veteran of psychological warfare has rightly pointed out that the way in which the whole
issue has played out has ensured that the only beneficiary in the controversy is Pakistan which is
gaining the "sympathy" of the international community as "big brother" India is using all tricks to
prove Jadhav is an "innocent businessman".1

The controversy has badly hurt the Indian operations to help people of Balochistan, Gilgit and
Pakistan-occupied Kashmir in their struggle for freedom and to stop China from moving ahead
with the China-Pakistan Economic Corridor, which threatens to violate the sovereignty of India.

1
"Dossier on India's terror acts on anvil". The Express Tribune.
ROLE OF INTERNATIONAL COURT OF JUSTICE

The Republic of India instituted proceedings against the Islamic Republic of Pakistan for the
violation of the Vienna Convention on Consular Relations for the arrest and detention of an Indian
National, Mr. Kulbhushan Jadhav, who was tried and sentenced for death by a military court in
Pakistan. The Government of India claims that it came to know about the death sentence from a
Press release and after diplomatic channels failed, it approached the International Court of Justice
on the 08th of May 2017 seeking:-

1. The immediate suspension of the death sentence of Mr Kulbhushan Jadhav.

2. Declaration of the military sentence of Mr Kulbhushan Jadhav to be in violation of the

Vienna Convention on Consular relations as well as in defiance of Article 14 of the
International Covenant on Civil and Political Rights.2

3. To restrain the Pakistani government from executing the sentence given by the military
court.

4. And on Pakistan being unable to annul the decision the court to declare the decision as
illegal and being violative of International Laws and treaties.

India approached the ICJ, pursuant to Article 36(1) of the statute of the International Court of
Justice and the operation of the Article 1 of the Optional Protocol Concerning the Compulsory
Settlement of Disputes which states that any dispute arising out of the interpretation or the
application of the Convention on Consular Relations shall lie within the compulsory jurisdiction
of the International Court of Justice bought to it by an application made by a party in dispute.

On 08th May India also filed a request for provisional measures so as to till the pendency of the
trial at the ICJ, the court must indicate to the government of the Islamic Republic of Pakistan to
take all necessary measures so that Mr. Jadhav is not executed, and then report to the Court about
the actions that it has taken in pursuance to that and to not take any actions that might be prejudicial
to the rights of the Republic of India or that of Mr Kulbhushan Jadhav.

2
"Kulbushan Jadhav: Pakistan lets family meet 'Indian spy'". BBC. 25 December 2017.
The International Court of Justice in the Jadhav Case accepted the contention presented to it by
the Republic of India that:-

● It has jurisdiction over the matter, as it arises from Article 1 of the Optional Protocol, which
satisfies 36(1) on matters of interpretation and application.

● The Court accepted the prima facie jurisdiction on the grounds that Pakistan’s failure to
provide access to India appeared to be capable of falling within the scope of the convention
and also the existence of a bilateral agreement between the two, established the jurisdiction
of the court.

● It held that India’s contention regarding the violation of Article 36 of the Vienna
Convention on Consular relations which states about the Rights of consular notification
and the access between a state and its national, in this case to be plausible and that being
satisfied of the urgency of the case indicated to Pakistan to take all necessary measures to
stop the execution of the Mr Jadhav.

JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE

The International Court of Justice is the successor of the Permanent Court of Justice established in
the year 1945, at The Hague, and is the principal judicial body of the United Nations. The Member
states to the United Nations Charter automatically become signatories to the Statute of the
International Court of Justice.3

Article 94 of the United Nations Charter states that all the members of the United Nations have to
comply with the ICJ decisions in the cases in which they are parties. Both the countries have signed
and ratified this.

There is also an ‘Optional Protocol’ to the Vienna Convention on Consular Relations for the
compulsory settlement of disputes. Both India and Pakistan are parties to this protocol too. The

3
Parashar, Sachin (12 April 2017). "My info on Jadhav was based on reliable sources: German diplomat Gunter
Mulack". The Times of India.
court judgments in the contentious cases are final and without appeal, though there is no way ICJ
can enforce its decisions.

This is where United Nations Security Council comes into the picture. It can compel the states to
follow the court’s ruling. But there are several problems with this method of enforcement.The
jurisdiction of the Court in contentious proceedings is based on the consent of the States to which
it is open. The form in which this consent is expressed determines the manner in which a case may
be brought before the Court.4Article 36, paragraph 1, of the Statute provides that the jurisdiction
of the Court comprises all cases which the parties refer to it. Such cases normally come before the
Court by notification to the Registry of an agreement known as a special agreement, concluded by
the parties especially for this purpose. The subject of the dispute and the parties must be indicated
(Statute, Art. 40, para. 1; Rules, Art. 39).

Article 36, paragraph 1, of the Statute also provides that the jurisdiction of the Court comprises all
matters specially provided for in treaties and conventions in force. Such matters are normally
brought before the Court by means of a written application instituting proceedings; this is a
unilateral document which must indicate the subject of the dispute and the parties (Statute, Art.
40, para. 1) and, as far as possible, specify the provision on which the applicant founds the
jurisdiction of the Court (Rules, Art. 38).

Pursuant to Article 36 of the Statute of the International Court of Justice, the jurisdiction of the
court arises from all cases referred to it by the parties to the United Nations Charter or any treaties
or convention. Jurisdiction of the Court also emanates from Article 36(2) which states that the state
parties at any time, through a declaration, accept the compulsory jurisdiction of the ICJ on all legal
disputes concerning the interpretation of a treaty, a question of international law , or existence of
a fact which would constitute a breach of an international obligation or on the nature and extent of
repartition and all questions of jurisdiction is to be settled by itself.

4
In the following eight cases, the Court found that it could not allow an application in which it was acknowledged
that the opposing party did not accept its jurisdiction: Treatment in Hungary of Aircraft and Crew of the United States
of America (United States of America v. Hungary) (United States of America v. USSR); Aerial Incident of 10 March
1953 (United States of America v. Czechoslovakia); Antarctica (United Kingdom v. Argentina) (United
Kingdom v. Chile); Aerial Incident of 7 October 1952 (United States of America v. USSR); Aerial Incident of 4
September 1954 (United States of America v. USSR); and Aerial Incident of 7 November 1954 (United States of
America v. USSR)
Breaking down Article 36 of the Statute of the International Court Of Justice which states that the
jurisdiction of the Court arises from all cases referred to it by the parties on all matters specially
provided in the United Nations Charter and other treaties and conventions in force, or the parties
to the dispute may declare ipso facto that they accept the compulsory jurisdiction of the court on
matters of:

a) Interpretation of a treaty

b) Question of International Law

c) Existence of a fact which if established would lead to the breach of International

obligation and

d) The nature and extent of the reparation to be made for the breach of an international
obligation.

Article 36(3) states that the declaration may be conditional or unconditional or be based on
reciprocity of the parties and lastly Article 36(6) states that the question of Jurisdiction shall be
settled by the parties.

Pakistan in the 1960s had accepted the compulsory jurisdiction of the International Court of Justice
with two reservations. 57 years later just before the hearing of the Jadhav Case in the ICJ, Pakistan
added 6 more clauses to the declaration in which one of them were that it won’t accept the
compulsory jurisdiction of the Court on grounds of national security.5

Pakistan has continually claimed that Kulbhushan Jadhav was an Indian spy and was responsible
for various terrorist attacks in Pakistan and that being detrimental to the national security of
Pakistan it wouldn’t accept the jurisdiction of the ICJ. However the acceptance of Jurisdiction in
the Jadhav case doesn’t derive from Article 36(2) but from 36(1) as India has brought the claim
under Article 36(1) of the ICJ statute i.e. jurisdiction derived from other treaties.

5
"Iran President Dismisses Pakistan's RAW Spy Claim". New Indian Express.
ENFORCEMENT MECHANISM OF THE INTERNATIONAL COURT OF JUSTICE

The interpretation of the Article 94(2) states that the United Nation Security Council ‘may, if deem
necessary’ take actions. Here there comes the line of difference between international relations
and politics. Jurist say that International law is the interplay of International politics in many ways
this is proved when the United Nations Security Council has to enforce the judgment by the ICJ.

One of the most notable precedent of UNSC enforcement of a judgement of the ICJ can be seen in
the case of Armed Activities in Nicaragua (USA Vs Nicaragua) where the ICJ held the USA
accountable for arming of rebels and ordered for repartition. Owing to the enforcement, the United
States vetoed the enforcement of the judgment against itself.

The International Court of Justice has gone a long way in installing faith of the world community
in the settlement of disputes and has done wonders in the maintenance of International Peace and
Security. Article 94(1) states that “each member undertakes to comply with the decision of the
International Court of Justice.”

This is based on the premise that all parties shall comply with the decision in good faith. Whereas
Article 94(2) provides that “If any party to a case fails to perform the obligations incumbent upon
it under a judgment rendered by the Court, the other party may have recourse to the Security
Council, which may, if it deems necessary, make recommendations or decide upon measures to be
taken to give effect to the judgment.”

Article 94 establishes the duty of all UN members to comply with decisions of the International
Court of Justice (ICJ) involving them. If parties do not comply, the issue may be taken before the
Security Council for enforcement action. There are obvious problems with such a method of
enforcement. If the judgment is against one of the permanent five members of the Security Council
or its allies, any resolution on enforcement would then be vetoed. This occurred, for example, after
the Nicaragua case, when Nicaragua brought the issue of the U.S.'s non-compliance with the
Court's decision before the Security Council. Furthermore, if the Security Council refuses to
enforce a judgment against any other state, there is no method of forcing the state to comply.

The relationship between the ICJ and the Security Council, and the separation of their powers, was
considered by the Court in 1992 in the Pan Am case. The Court had to consider an application
from Libya for the order of provisional measures to protect its rights, which, it alleged, were being
infringed by the threat of economic sanctions by the United Kingdom and United States. The
problem was that these sanctions had been authorised by the Security Council, which resulted with
a potential conflict between the Chapter VII functions of the Security Council and the judicial
function of the Court. The Court decided, by eleven votes to five, that it could not order the
requested provisional measures because the rights claimed by Libya, even if legitimate under the
Montreal Convention, prima facie could not be regarded as appropriate since the action was
ordered by the Security Council.

In accordance with Article 103 of the UN Charter, obligations under the Charter took precedence
over other treaty obligations. Nevertheless the Court declared the application admissible in 1998.

A decision on the merits has not been given since the parties (United Kingdom, United States and
Libya) settled the case out of court in 2003.

There was a marked reluctance on the part of a majority of the Court to become involved in a
dispute in such a way as to bring it potentially into conflict with the Council. The Court stated in
the Nicaragua case that there is no necessary inconsistency between action by the Security Council
and adjudication by the ICJ. However, where there is room for conflict, the balance appears to be
in favour of the Security Council.

Should either party fail "to perform the obligations incumbent upon it under a judgment rendered
by the Court", the Security Council may be called upon to "make recommendations or decide upon
measures" if the Security Council deems such actions necessary. In practice, the Court's powers
have been limited by the unwillingness of the losing party to abide by the Court's ruling, and by
the Security Council's unwillingness to impose consequences. However, in theory, "so far as the
parties to the case are concerned, a judgment of the Court is binding, final and without appeal,"
and "by signing the Charter, a State Member of the United Nations undertakes to comply with any
decision of the International Court of Justice in a case to which it is a party."
For example, the United States had previously accepted the Court's compulsory jurisdiction upon
its creation in 1946, but in Nicaragua v. United States withdrew its acceptance following the
Court's judgment in 1984 that called on the U.S. to "cease and to refrain" from the "unlawful use
of force" against the government of Nicaragua. The Court ruled (with only the American judge
dissenting) that the United States was "in breach of its obligation under the Treaty of Friendship
with Nicaragua not to use force against Nicaragua" and ordered the United States to pay war
reparations.
CONCLUSION

India and Pakistan have been at loggerheads since 1947. India has been a party to at least 6 ICJ
cases out of which 4 of them have been against the Islamic Republic of Pakistan such as the Appeal
regarding the Jurisdiction of ICAO in 1971, the Case Concerning the trial of Pakistani POWs
among many others. The International Court of Justice now has the responsibility to decide on an
issue which may not determine the fate of two nations but the life one human being. Seeing the
sharp deterioration of relations in the last two years, finding a diplomatic solution to this situation
looks to be near impossible. Thus in reaching this decision, Pakistan has effectively played a
masterstroke designed to put India into a corner.

With few options and room to maneuver, it will be interesting to see how India plays its gambit.
Will it try to secure the release of its officer from Pakistan but risk international embarrassment?
Or will the country allow him to walk quietly to the gallows and accept its helplessness in the
matter? Either way, the situation does not factor well into the Indian strategic calculus.
Bibliography
Books referred:

 Malcolm N. Shaw, International Law (2008)

 SK Verma, Public International Law (2012)
 SK Kapoor, International Law and Human Rights (2016)

Database used:

 www.manupatra.com
 www.scconline.com
 www.lexisnexis.com