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Caught in the Crossfire: Unraveling the Kulbhushan Sudhir Jadhav Case

The Kulbhushan Sudhir Jadhav case is a highly contentious legal and diplomatic matter between India and Pakistan.

Overview of the case:
Kulbhushan Sudhir Jadhav is a former Indian Navy officer who was arrested by Pakistani authorities in March 2016. He was arrested for being an accused by Pakistan for espionage and was performing terrorism activities in Pakistan Baluchistan province.

Pakistan claimed that Jadhav was working for India's external intelligence agency, the Research and Analysis Wing (RAW), and was involved in activities aimed at destabilizing Pakistan.

India denied all the claimed charges by Pakistan and consider that Mr. Jadhav has legitimate business in Iran and was kidnapped and was falsely implicated by Pakistan. India condemned Mr. Jadhav detention, Trial and been sentenced to death by a military court in Pakistan in April 2017 of its national.

India claim in this case:
On 8 May 2017, India filed an Application instituting proceedings against Pakistan in the International Court of Justice (ICJ), in respect of a dispute concerning alleged violations of the Vienna Convention on Consular Relations of 24 April 1963.

Major concerns of India are:

  1. India claimed that Pakistan had failed to inform it, without delay, of the arrest and detention of its national.
  2. Mr. Jadhav had not been informed of his rights under Article 36 of the Vienna Convention on Consular Relations.
  3. India's consular officers had been denied access to Mr. Jadhav while he was in custody, detention and prison, and had been unable to converse and correspond with him, or arrange for his legal representation.
  4. A Request for the indication of provisional measures, requesting the Court to direct Pakistan to "take all measures necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed."
  5. and to "ensure that no action is taken that might prejudice the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav with respect to any decision th[e] Court may render on the merits of the case".

Pakistan argument points in this case:

Pakistan argued in International Court of Justice that:

  1. Pakistan presented evidence claiming that Jadhav was arrested in Balochistan, a province in Pakistan, and was in possession of a passport with a different name at the time of his arrest.
  2. Pakistan alleged that Jadhav was tasked by India's external intelligence agency, the Research and Analysis Wing (RAW), to carry out subversive activities in Pakistan, particularly in the Baluchistan province.
  3. Pakistan claimed that Jadhav confessed to his involvement in these activities during his interrogation, and they argued that his actions constituted a clear violation of Pakistan's sovereignty and national security.
  4. Pakistan also contended that Jadhav was not entitled to consular access under the Vienna Convention on Consular Relations, as they asserted that his case fell under the exception clause related to espionage and related activities.

Proceedings in International Court of Justice (ICJ):
On 18 May 2017, International Court of Justice (ICJ), by an Order directed Pakistan to "take all measures at its disposal" to ensure that Mr. Jadhav would not be executed pending a final decision in the case, and to inform the Court of all the measures taken in implementation of that Order. It also decided that, until the Court had given its final decision, it would remain seised of the matters which formed the subject matter of the Order.

On 18 to 21 February 2019, Public hearings on the merits of the case were held in International Court of Justice (ICJ). Both side arguments and facts were discussed.

International Court of Justice (ICJ) ruling:
On 17 July 2019, the ICJ ruled in favor of India, the Court unanimously held that:
  1. Pakistan had violated the Vienna Convention on Consular Relations by not providing consular access to Jadhav and failing to inform him of his rights.
  2. The ICJ ordered Pakistan to review and reconsider his conviction and sentence.
Current situation
However, despite the ICJ's ruling, the situation remains unresolved, with Pakistan claiming to have offered consular access to India but maintaining its stance on Jadhav's involvement in espionage and terrorism. Pakistan indicated that it would conduct a new trial in accordance with its laws and the ICJ's judgment. The case continues to strain relations between the two neighboring countries.

Observation of the Author
The International Court of Justice have not favored India, Infact, have gone through the facts and arguments to deliver the judgement. To maintain harmony and peace, Countries should follow The Vienna Convention on the Law of Treaties upfront. In this present case, denying consular access, failing to inform accused rights, keeping inform India from the day one is violations of the Vienna Convention on Consular Relations of 24 April 1963.

Written By: Aarvi Sunger, LLM Student at lovely professional university.

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