*Arkaprava Dass & Adnan Yousuf
On 17th July 2019, the International Court of Justice (“ICJ”) will pronounce its verdict in the much talked about Kulbhushan Jadhav Case. The case which has generated a lot of interest in both India and Pakistan concerns India’s dispute with Pakistan on upholding the right of detainees to consular access.
FACTUAL BACKGROUND AND TIMELINE OF THE CASE
Kulbhushan Jadhav, an Indian national, was arrested by Pakistani authorities in Balochistan on 3rd March 2016 on allegations of espionage and terrorism. India maintains that Jadhav is a retired Navy officer who had business interests in Iran and that he was kidnapped by the Pakistani military. India has contended that Kulbhushan Jadhav was arrested, tried and then was summarily sentenced on 10th April 2017. In its further submissions before the ICJ, India has alleged that Jadhav was arrested on 3rd March 2016 but it was informed of his arrest only on 25th March 2016. It sought consular access to Jadhav on that very day evoking no response from Pakistan. Subsequently, India sent a total of thirteen reminders to Pakistan requesting access to Jadhav.
Nearly a year after the first request, Pakistan sent a note verbale seeking assistance from India in the investigation of its claims against Jadhav in consideration for consular access. Asking for among other things, his bank account details and identification documents. India in its reply reiterated that Jadhav was kidnapped from Iran where he was residing and carrying on business after retiring from the Indian Navy. Further stating that access is a prerequisite in order to verify and confirm the circumstances of Jadhav’s arrest in Pakistan. India reminded Pakistan that the time of Jadhav’s arrest is still clouded in mystery absent any clarification by Pakistan beyond asserting that Jadhav has been arrested.
On April 10, 2017, ISPR, the media wing of Pakistan’s armed forces in a press release announced that Kulbhushan Jadhav had been sentenced to death by the Field General Court Martial (FGCM) on the charge of espionage. Jadhav’s sentence, the press release further stated, had been confirmed by the Chief of the Pakistani military. The factual matrix according to Pakistan is different. It alleges that Jadhav was tasked by the Research and Analysis Wing (RAW) to destabilize the restive province of Balochistan. It supports its claim on the grounds of national security.
A WORD ON PROVISIONAL MEASURES
India thereafter approached the ICJ requesting provisional measures directing Pakistan to ensure that Jadhav is not executed until the court decides the merits of India’s claim. On 18th May 2017, the ICJ ordered a timely stay on Jadhav’s execution. Article 41 of the Statute of the ICJ vests the court with authority to issue “provisional measures to preserve the status quo concerning the rights and obligations of the parties pending the judgment of the Court.”
At the oral hearings which commenced on 18th February 2018, India has alleged ‘egregious violations’ of the Vienna Convention on Consular Relations (“VCCR”) by Pakistan with regard to the detention, trial, and conviction of Jadhav. India further argued that Pakistan’s denial of consular access to Jadhav breached its obligations under Article 36(1)(b) of the VCCR. Article 36(1)(b) states:
“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 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”
India further pleaded that Article 36 of the VCCR admits of no exception and forms a vital constituent of the rubric of due process rights. Requesting the Court to stand by its decision in the LeGrand Case (Germany v. USA) which concerned the rights of detainees. Apropos the Jadhav case, the ICJ held in LeGrand that the “rights under the VCCR cannot be denied at the cost of legal procedures of a particular State.”
On the question of the court’s jurisdiction, India has relied on article 1 of the Optional Protocol to the VCCR, which gives the ICJ the authority to try any dispute that may arise from the interpretation or application of the VCCR.
Pakistani authorities are convinced that Jadhav is an Indian spy sent to sow seeds of destabilization in the restive region of Balochistan, which borders Iran. Pakistan argues that the relevant provisions of the VCCR do not apply in cases of espionage and terrorism. This, it contends, is due to the inherent nature of these offences which make consular access improbable. Further, Pakistan places reliance on the Bilateral Agreement on Consular Relations signed between the two countries in 2008. Pakistan argues that the 2008 Agreement overrides its obligations under the VCCR.
THE CURIOUS CASE OF AN AGREEMENT
A bilateral agreement on consular relations was signed in May 2008 between India and Pakistan after deliberations between the then Indian Minister for External Affairs, Pranab Mukherjee and his Pakistani counterpart SM Qureshi. The stated objective of the agreement was to “further the humane treatment of detainees of either country”. More importantly, under the Agreement, each side has the right to examine on merits any such cases where the arrest is made due to political or security reasons.
The question then is, does the 2008 Agreement override obligations under the VCCR as Pakistan has argued? Article 73(2) of the VCCR does allow State parties to extend or amplify the provisions of the treaty. But these cannot, in any form, be diluted or undermined. Such an interpretation seems to render Pakistan’s contention unconvincing.
WHAT THE ICJ CAN AND CANNOT DO IN THIS CASE/ POSSIBLE RELIEFS BY THE ICJ
The key legal issues to be decided by the Court are whether (a) the VCCR applies to spies and those merely accused of terrorism and, (b) whether the 2008 Bilateral Agreement signed between India and Pakistan overrides obligations under the VCCR. The jurisdiction of the ICJ is limited in such cases. In brief, simplifying perhaps, the Court will only decide whether Pakistan breached its obligations under the VCCR. It cannot determine Jadhav’s guilt or innocence.
Furthermore, India has requested the ICJ to suspend Jadhav’s death sentence and to direct the Pakistani authorities to annul the sentence. India wants the ICJ to declare that Jadhav’s military trial was in violation of the VCCR and International Human Rights Law (in particular, Article 14 of the International Covenant on Civil and Political Rights). India has sought a directive to Pakistan for Jadhav’s release.
According to Reema Omer, International Legal Advisor for South Asia to the International Commission of Jurists, ICJ’s jurisdictional limits only allow it to decide the question of any breach of article 36(1) of the VCCR. It may ask Pakistan to “review or reconsider” Jadhav’s sentence.
The life of a man hangs in the proverbial balance and the ICJ will decide his fate. It is very likely that Jadhav’s death sentence may not be carried out and Pakistan could be restrained from doing so. Apart from such pressing matters concerning a man on death row in Pakistan, the whole saga may have far-reaching consequences on the dynamics of the Indo-Pak relationship, particularly how the two countries see dispute resolution as some have argued. It may also augur well for growth and relevance of International Law in the subcontinent.
Arkaprava Dass and Adnan Yousuf are 4th-year law students at Faculty of Law, Jamia Millia Islamia, Delhi