Kulbhushan
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This article has been written by Jeezan Riyaz and edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Material facts 

On 03.03.2016, Kulbushan Jadhav was arrested by Pakistan and on 24.03.2016, the military establishments and law enforcement agencies of Pakistan accused Jadhav of being a spy, having crossed over from Iran and was caught in southern Pakistan, i.e. Balochistan. In the meanwhile, Pakistan also shared a video, wherein Jadhav is seen confessing to the allegations leveled against him.

On 23.01.2017, The external affairs minister of Pakistan sent a “Letter of Assistance for Criminal Investigation against Indian National Kulbhushan Sudhair Jadhav” to the High Commission of India in Islamabad but no response was received. On 29.03.2016, India claimed all the allegations leveled against Jadhav to be baseless as he is a retired naval officer and was illegally kidnapped by the Pakistani authorities from Iran. In addition to this, the Indian government sought Consular access for Kulbushan Jadhav from Islamabad which was denied. As many as 16 requests from New Delhi were turned down by Pakistan over the course of 1 year. On 10.04.2017, the Pakistani Military Court sentenced Kulbushan Jadhav to death on account of “Espionage and Terrorism.”

On 14.04.2017, the Indian government demanded an authentic copy of the charge – sheet and verdict of the military court of Pakistan which sentenced Jadhav to death and further requested Consular access for Jadhav. On 08.05.2017, aggrieved by the stance taken by Pakistan and lack of cooperation shown by them, in granting Consular access to Kulbushan Jadhav, India approached the International Court of Justice at the Hague Netherlands against the decision of Pakistan’s Military Court that awarded a death Sentence to Mr. Jadhav. On the very next day, the ICJ stayed Jadhav’s execution.

After much deliberations and negotiations between New Delhi and Islamabad, on 10.11.2017, Pakistan allowed the visit of Mr. Jadhav’s wife on ‘humanitarian grounds ‘and further extended the offer for his mother as well, it also assured India of the safety of the visitors and their free movement. In nutshell, Kulbhushan “Sudhir Jadhav was a 50-year-old retired Indian Navy Officer who was sentenced to capital punishment by the Military Court of Pakistan. The charges against Jadhav for which he was being sentenced to death was ‘Espionage and Terrorism.’

Issues

“The issues that arise for consideration of this Court are:” 

Questions of law

  1. Whether the sentence awarded by Pakistan’s Military Court is illegal?
  2. Whether Pakistan has violated the standards laid down by the Vienna Convention on Consular Relations (VCCR) and International Covenant on Civil & Political Rights (ICCPR) by not granting Consular access to Kulbushan Jadhav?
  3. Whether or not the ICJ had jurisdiction to preside over the present matter and entertain an application therein?
  4. Whether the Vienna Convention on Consular Relations were implicitly inapplicable in cases of terrorism or espionage?
  5. Is“Pakistan’s demand correct that India should assist in the investigations of the case concerning Jadhav which will serve as a precondition to granting consular access to India pursuant to Article 36 acceptable or is the obligation under Article 36” unconditional?
  6. Whether the 2008 bilateral agreement entered into between India and Pakistan supersede the already existing Vienna Convention on Consular Relations?
  7. Whether the rights enshrined in the bilateral agreement limit the applicability of VCCR?
  8. Whether ICJ has jurisdiction in the present matter under Article 1 of the Options Protocol?

Arguments on behalf of the Republic of India

The counsel, Mr. Harish Salve, Senior Advocate, appearing on behalf of the Republic of India, instituted proceedings against Pakistan“under Article 36, paragraph 1 of the Statute of the ICJ, and Article 1 of the Optional Protocol to the Vienna Convention on Consular Relations Concerning the compulsory settlement of Disputes (Optional Protocol) alleging violations of the VCCR by Pakistan”.

  1. The Counsels, appearing on behalf of the Republic of India, stated that the military court of Pakistan had sentenced Kulbushan Jadhav to death and accordingly our request for granting consular access to Jadhav is a matter of right of every individual under Article 36(1) of the VCCR and Pakistan has denied that more than 16 times and therefore is a clear violation of article 36(1) of the VCCR from Pakistan.
  2. The counsels further submit that Article 73(2) of the VCCR, provides that “nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof”, and therefore under no circumstances, a bilateral agreement entered into between India and Pakistan will take supremacy over the already established provisions of VCCR and therefore the provisions of VCCR will take supremacy and will be applicable in the present matter.
  3. The obligations “under the VCCR may be enhanced or clarified by bilateral treaties, but cannot be diluted or undermined, as affirmed by authoritative interpretation of the VCCR and general principles of treaty law, including Article 41(1) of the Vienna Convention on the Law of Treaties. Also, the reservations stated in Article 36(2) of the ICJ statute, is independent of and not a mere prerequisite to invoking the authority under Article 36(1) of the ICJ Statute, and accordingly, VCCR is the rightful authority to be referred to in matters of consular access.

Failure of Pakistan in providing consular access to Kulbushan Jadhav (violation of Article 36 of the VCCR)

  1. The counsels, on behalf of the Republic of India, suggests that it’s the lawful right of any detained person in an alien state to have direct correspondence with the nationals of his own country for the purposes of a fair trial and accordingly the phenomenon governing the same is known as consular access
  2. The counsels further submitted that the consular officer shall have the right to converse, communicate and visit any detained individual of its country in an alien country or foreign territory and shall have complete freedom with respect to communications.
  3. Therefore the right of legal representation cannot be denied at any point of time no matter what, as consular access is one of the main prerequisites of ensuring that a fair trial takes place in accordance with international law and international humanitarian law.
  4. In simple terms, Pakistan did not respect and oblige by the covenants of VCCR, ICCPR, ICJ statute and has created a gross error in its application submitted to the International Court of Justice: (a) by not providing adequate information to India about the detention of Mr. Jadhav and that too without delay, (b) by not informing the detainee about his lawful right and remedy; and (c) by denying India and its consular officers the imprescriptible right of Consular access, guaranteed to them under Article 36 of the VCCR.

Abuse of rights 

The counsels submit that prima facie denial of all the lawful rights by the Islamic Republic of Pakistan is itself evidence of the fact there has been a gross abuse of rights. Not only this denying one a right to a free and fair trial is a gross error and completely against the tenets of ICCPR, thereby making a grant of consular access one of the main prerequisites for a free and fair trial. Therefore the justification provided by Pakistan that grant of consular access is only provided if the other country accepts and provides proof that the detainee in question is their national is completely baseless as a fact in question is only addressed if it’s in dispute and in the present case Pakistan has always mentioned Kulbushan Jadhav as an Indian national and as per the reasoning of Pakistan, but they are also guilty of not providing India with consular access when the question of nationality was prima facie very clear and without any ambiguity.

Remedies 

In the final limb of its submissions, the Counsels, appearing on behalf of India made it very clear as to what they are looking out for from this settlement in ICJ. The remedies that India wants from the Islamic Republic of Pakistan were submitted by the counsels, which were as follows:

  1. Suspension of the death penalty with immediate effect keeping in mind the ratio laid down by the ICJ,
  2. The declaration “that the sentence by the Pakistani military court was “brazen defiance” of the Vienna Convention on Consular Relations (VCCR) and the International Covenant on Civil and Political Rights (ICCPR) since Pakistan had not given India consular access to Jadhav.
  3. Pakistan should annul the decision of its Military Court and make retrenchments for the release of Kulbushan Jadhav.
  4. The Court should further declare that the sentence awarded by the military court was in complete violation of the VCCR, ICCPR and the tenets of International law and accordingly the Republic of India is entitled to ‘Restitution in integrum’, i.e. restoration of the position of the detainee in question to pre-arbitrary arrest position which will mean the deportation of Kulbushan Jadhav back to India.

Arguments on behalf of the Islamic Republic of Pakistan

The Counsel, Mr. Khawar Qureshi, Legal Counsel & Advocate, appeared on behalf of the Islamic Republic of Pakistan and stated that India has committed 3 main mistakes in the present matter while responding to its allegations. Pakistan submitted that there has been an abuse of the process, abuse of the rights, and unlawful conduct on the part of India as they did not accept the mere fact that:

  • The VCCR doesn’t have the applicability and the requisite jurisdiction to adjudicate upon cases of espionage and terrorism mainly due to the inherent nature and heinousness of such crimes.
  • A bilateral agreement has already been entered into between India & Pakistan, back in 2008, where it’s stated in plain simple words that in cases of “arrest, detention or sentence made on political or security grounds”, the states are free to decide the merits of the case based on their own discretion. Also since the 2008 bilateral agreement already exists, it overrides the applicability of the VCCR.
  • The reservations made under Article 36(2) of the ICJ statute are almost equally admissible and acceptable as those of cases under Article 36(1) of the statute are. Therefore if there exists a treaty or an agreement, which has force of law, it ipso facto becomes a valid treaty or an agreement adhered to by the parties.

Therefore India cannot invoke the jurisdiction of Article 36 of the VCCR in the present matter because of the existence of the 2008 bilateral agreement already entered into by the parties.

Abuse of process

The Counsels on behalf of the Islamic Republic of Pakistan stated that India has violated certain procedures as a matter of its procedural right and that validly constitutes an abuse of power. Firstly, it violated the process by requesting the ICJ to take resort to procedural measures thereby stopping the execution of Kulbushan Jadhav. India undermined the mere fact that Pakistan allows every person, a constitutional right of filing a clemency petition, 150 days after the award of death sentence and so it was the same in the case of Mr. Jadhav. Therefore India undermined what Pakistan calls ‘highly material facts’ and thus violated the process by approaching ICJ when the appropriate remedy was there to stay the execution of Jadhav.

  1. Secondly, India violated the provisions of Article 2 and 3 of the Optional Protocol to the VCCR by not providing Pakistan to take recourse to other forms of dispute resolution mechanisms as is envisaged in the said Articles. It is expected of the parties to notify or inform the other party that a dispute arose and the same has to be solved within a period of 2 months, not by approaching the ICJ but an appropriate tribunal or a forum for the same. Both these measures clearly state that India has violated the process and as a matter of fact, they cannot subject Pakistan to the Jurisdiction of ICJ.

Abuse of rights

The Counsels for Pakistan, in their next limb of submissions, submitted that India should be held accountable for abuse of rights by not corroborating in further investigations into the case of Kulbushan Jadhav as:

  • Firstly, India blatantly refused to provide clarity on the nationality of Jadhav by means of arranging his actual Indian passport bearing his name; even it had an explicit duty to do so.
  • Secondly, India’s cold stance on helping Pakistan carry out further investigations wherein India was requested by Pakistan, to assist in carrying out the criminal investigations into Mr. Jadhav’s activities.
  • Thirdly, India had assisted Jadhav in carrying out various activities related to espionage and terrorism and there is enough material on record to prove the same. India provided Kulbushan Jadhav with a “false cover name authentic passport” and therefore violated certain anti-terrorism laws and thereby the counsels, on behalf of Pakistan, would request the ICJ to invoke certain United National Security Councils Resolution against India with respect to the same as what they did was completely an abuse of rights.

India is guilty of its unlawful conduct

  1. The Counsels, on behalf of the Islamic Republic of Pakistan, humbly submits that the admissibility of India’s claim/application is concocted on the mere fact that they are guilty of alleged unlawful conduct. In addition to this, the Counsels, request the ICJ to dismiss and not accept India’s stance, as they are supposed to come to the court with clean hands, and accordingly the principles of “ex turpi causa [non oritur actio]” and “ex injuria jus non oritur” apply in this case as well.
  2. Failure of India to respond to Pakistan’s request of assistance to carry out further investigation into the criminal matter of Kulbushan Jadhav, helping Jadhav by providing him a fake forged passport to carry out activities such as espionage and terrorism against Pakistan and disregarding the 2008 bilateral agreement between the parties is an indication of the fact that they have not come to the Court with clean hands, and accordingly, their application should be dismissed as it lacks merit.

Therefore, on behalf of the Islamic Republic of Pakistan, as counsels, we would like to submit before the hon’ble ICJ that since India has not assisted Pakistan in carrying out investigations into Jadhav’s matter and not establishing Jadhav’s national identity is in itself evidence of the fact that they are denying him to be an Indian, as a result of which the demand for seeking Consular access stands dismissed as establishing valid nationality is a prerequisite for the same.

Concrete judgment

The ICJ delivered the judgment with an overwhelming majority of 15:1 ratio. The judgment delivered by the majority pointed out mainly with the question of violation of article 36 of VCCR. As per the court’s observation, the main dispute between both countries is about ‘consular assistance’ of arrest, detention, trial, and sentencing of Kulbhushan Jadhav. Both the countries besides being the members of VCCR are also members of “Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes” without any reservations or declarations.  The court had observed that the jurisdiction of the case comes about from Article 1 of the “Optional Protocol” and does not breach any of the international treaties’ asides from VCCR. Therefore, it has legitimate jurisdiction under Article 1 of the Optional Protocol as alleged by the State of India regarding the violation of VCCR.

The“three objections raised by the State of Pakistan regarding the abuse of power, abuse of rights and unlawful conduct by the State of India were dismissed and India’s application was admissible. Further, the court also held that Pakistan has acted in breach of the agreement and failed to fulfill its obligations as per Article 36 of VCCR. The State of Pakistan had failed to inform Kulbhushan Jadhav about his rights which he had under Article 36(1)(b), by not informing India about the arrest and detention of Jadhav and lastly by denying the access of Jadhav by the Consular Officers of India. These were all part of the VCCR agreement which Pakistan had agreed without any reservations or declarations. Hence, the court has found Pakistan to be in violation of international laws.”

With respect to India’s demand of “restitution in integrum”, The Court recalls that “[i]t is not to be presumed . . . that partial or total annulment of conviction or sentence provides the necessary and sole remedy” in cases of violations of Article 36 of the Vienna Convention (ibid., p. 60, para. 123). Thus, the Court finds that these submissions made by India cannot be upheld.

Ratio Decidendi

In view of the facts presented and precedents drawn:

  1. The Court with respect to Pakistan’s argument stated that the ICJ does not have jurisdiction to hear cases wherein the detainee’s in question are guilty of offences related to espionage and terrorism, explained in VCCR Article 36, when read in its “context and in light of the object and purpose of the Convention,” did not exclude from its scope “certain categories of persons, such as those suspected of espionage. In the Court’s view, “it would run counter to the purpose of that provision if the rights it provides could be disregarded when the receiving state alleges that a foreign national in its custody is involved” in acts of espionage.”
  2. The ICJ further explained that the 2008 Agreement —which provided that “each side may examine a case on its merits” in situations of “arrest, detention, or sentence made on political or security grounds”—could not be read as denying consular access. In its view, “if the Parties had intended to restrict in some way the rights guaranteed by Article 36, one would expect such an intention [would have been] unequivocally reflected in the [2008 Agreement],” which was not the. The ICJ explained that the 2008 Agreement could only “confirm, supplement, extend or amplify” the VCCR and could not displace Pakistan’s obligations under Article 36.
  3. As regards“India’s claim based on the Vienna Convention, the Court considers that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of the provisions of the Vienna Convention. In the Avena case, the Court confirmed that “the case before it concerns Article 36 of the Vienna Convention and not the correctness as such of any conviction or sentencing”, and that “it is not the convictions and sentences of the Mexican nationals which are to be regarded as a violation of international law, but solely” certain breaches of treaty obligations [on consular access] which preceded them.”
  4. With“regard to India’s contention that it is entitled to restitution integrum and its request to annul the decision of the military court and to restrain Pakistan from giving effect to the sentence or conviction, and its further request to direct Pakistan to take steps to annul the decision of the military court, to release Mr. Jadhav and to facilitate his safe passage to India, the Court reiterates that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention. The Court also recalls that “[i]t is not to be presumed . . . that partial or total annulment of conviction or sentence provides the necessary and sole remedy” in cases of violations of Article 36 of the”Vienna Convention. Thus, the Court finds that these submissions made by India cannot be upheld.
  5. The Court stated that the evidence of no communication or consular access provision by Pakistan would form a ground for extracting necessary jurisdiction. On satisfying the requirement of jurisdiction with such observation, the Court mandated clarifications on questions of law and fact, thereby admitting the dispute under the Vienna Convention and held that the alleged acts of terrorism or espionage cannot exclude the scope of jurisdiction of the Court under the Convention. An important observation made was that a bilateral agreement couldn’t possibly limit the jurisdiction of the Court under the ICJ statute or under Vienna Convention.
  6. The ICJ stressed upon the mere fact that it was the duty of Pakistan to inform and provide India with Consular access at the earliest and the reasoning given by Pakistan that failure on the part of India to accept the detainee as their citizen would bar the process of granting them the consular access is completely baseless as it lacks merit because a fact in a question is explained when its in dispute, not merely when its quite clear. To throw more light on the same, Pakistan merely mentioned Kulbhushan as an Indian Spy on multiple occasions, which is prima facie indication of the fact that they were aware of his nationality. Not buying this argument at all, The ICJ held Pakistan guilty of violating the provisions of VCCR by denying consular access and at the same time held them guilty of not accepting the provisions of optional protocol, 1969 as well.

Conclusion

In the instant matter, the researcher clearly agrees and concurs with the reasoning and judgment of that of the Honourable International Court of Justice as there are many substantial points to be appreciated.  Also, there are a few grounds given on which the researcher does refuse to agree with the view taken by the Court. A counterbalanced view of both the opinions and findings are to be presented here conveniently. 

Merits 

  1. The Court was correct in its stance in holding Pakistan liable for violating the provisions of VCCR, ICCPR and the mere fact that VCCR will be applicable over and above the domestic legislation, i.e. the 2008 bilateral agreement entered into between the parties.
  2. The Court was correct in it’s reasoning that Article I of the Options Protocol provides for the jurisdiction of the ICJ to preside over matters concerning the said protocol.
  3. The Court deduced a proper analogy that only a fact that is in dispute is to be addressed so the stance taken by Pakistan that India did not help them to carry out criminal investigations against Kulbushan Jadhav is an indication of the fact that India denied them of Jadhav being an Indian citizen and accordingly the right to consular access is out of the equation, is completely baseless as there is enough material on record to prove that Pakistan was aware of Jadhav’s nationality and time and time again they have used the term ‘Indian Spy.’
  4. The Court was correct in dismissing India’s stance with respect to restitution in integrum as it is against the tenets of International law because the Official Secrets Act of Pakistan enables the detainees to file for a review petition and therefore passing an order for deportation of Kulbushan Jadhav back to Indian territory will be against the principle of fairness and will undermine the constitutional apparatus of Pakistan as a law or a ruling is given effect to if there’s a lapse in the system.

Demerits 

  1. The Hon’ble Court was correct in its approach about the applicability of the VCCR but as a researcher, the Court did not read into the provisions of the 2008 bilateral agreement as to why the parties can decide the cases on their own merit if there is a threat to the sovereignty, social order and political apparatus of the country. The researcher is neither disputing the validity of the VCCR nor going against its application over and above the bilateral agreement, the only concern stands to be that the Court should have given a plain harmonious reading to the provisions of the bilateral agreement to understand the gist with regards to the same.
  2. As per the researcher, the Court did not lay much emphasis upon Article II and III of the Optional Protocol concerning the compulsory settlement of disputes 1963 in the same way they did for the Article I of the same protocol. The main reasons for the same were not clearly established as the issue of dispute resolution before submitting the said application before the ICJ was kept out of the question. 

These were the two demerits of the case as per the researcher’s point of view. The researcher does agree with all the other findings of the Court and the way in which it used the given precedents as binding and distinguished the non-binding ones. 


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