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Case Commentary On Kulbhusan Jadhav Case (India Vs Pakistan) 2019

In the present case, India had filed an application instituting proceedings against Pakistan in International Court of Justice for the Violation of ‘Article 36 of the Vienna Convention on Consular Relations (VCCR)’ that India’s consular officers had been denied access to Mr. Jadhav while he was in custody, detention and imprisoned, and had been unable to converse and correspond with him, or arrange for his legal representation and demanded for the immediate suspension of his Death sentence. Thus the dispute between the two countries concerns the question of Consular Assistance with regard to the arrest, detention, trial and sentencing of Mr. Jadhav.

It was contended by Pakistan that they had arrested Jadhav on 3rd March 2016 in Balochistan after he entered from Iran, and he was a spy from RAW (Research and Analysis Wing) of India planning for the terrorist attack in Pakistan. Pakistan relied upon a bilateral agreement of 2008 on Consular Access between him and India and in the present situation, instead of the Vienna Convention on Consular Relations (VCCR). And that Agreement exempts Spies from being given the same privileges that signatories to the Vienna Convention on Consular Relations (like India and Pakistan) must grant each other’s citizens in jail.

International court of Justice (ICJ) held that the Pakistan had acted in violation of International norm of Consular access that is Vienna Convention on Consular Relations (VCCR). By its order the court had stayed the Death sentence of Mr. Jadhav by Pakistan military court and directed Pakistan to grant Consular Assistance as per Article 36 of VCCR[1] to Mr. Jadhav and the bilateral Agreement of 2008 constitutes a subsequent agreement within meaning of Article 73, paragraph 2 of Vienna Convention[2] and does not displace obligations under Article 36.

The India’s request to Court to direct Pakistan to take steps to annul the decision of the military court and release Mr. Jadhav and facilitate his safe passage to India, the Court found that the submissions made by India could not be upheld.[3]

Background:
A Consul is an official agent or representative of one state who has been assigned to reside in another state to protect the Sate’s interests and its citizens. The privileges and obligations of the States with regard to the Consular officials they send or receive are dealt under Consular relations. It is one of the means by which a State defends their citizen’s interest abroad, especially their nationals who are arrested or detained for violating the Criminal Laws of other country.

By a series of effort of International Law Commission, and the Vienna Conference on Consular Relations, the Vienna Convention on Consular Relations, 1963 comes into existence and progressively developed Customary International Law on Consular immunities. At present, there are 48 signatories and 180 parties to the Convention. Its key objective was to protect the interests of a State and its nationals in the territory of another State while promoting relations amongst States. Both Pakistan and India are members of this convention and had ractified it on 1969 and 1977 respectively[4] and its Optional protocol without any reservations.

Article 36 of the Vienna Convention, 1963 provides that if any foreign citizen is arrested or detained on criminal charges of that country, then that person is entitled to be notified about the right to notify the detainee country’s consulate of his arrest. This article also provides that for a regular consultation with the consular officials during the detention and any trial of the accused. The essential principle of this Article is to provide Communication between a National and his country’s officials, in the Foreign State.

Analysis:
The International Court of Justice had delivered the judgement with an enormous Majority of 15:1, the only dissenting Judge was an Ad hoc judge Jilani. In his dissenting Judgement, Justice Jilani came up with a conclusion which is not the main dispute between the parties. He rather dealing with the question of law and discussing international Law which is put before the ICJ, concerned with those questions which are dwelled upon the issues like the confession of Mr Jadhav, Kashmir and other political related issues to prove his instance.

The Judgement of Majority deals mainly with the question of Violation of Article 36 of the Vienna Convention on Consular Relations (VCCR). India had argued for a remedy under Article 1 of Optional Protocol concerning the Compulsory settlement of disputes, 1963[5] to annul the decision of Pakistan military court and Pakistan has also violated Mr. Jadhav’s “elementary human rights”, “which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights” and release Mr. Jadhav to which the court has rightly observed that its:
“Jurisdiction is limited to the interpretation or application of the Vienna Convention and does not extend to the India’s claims based on any other rules of the International Law”. The author is of the view that the judgement of ICJ is well-balanced where the court has limited its interference only till its jurisdiction, given a judgement in line with the principles of International Law.

The judgement of ICJ in this case is well in line with the previous judgements of this hon’ble court as the remedy granted in the instant case is similar to that remedies given by the court in case of La Grand (Germany Vs United States of America)[6] and Avena Case (Mexico Vs United States of America)[7], which had involved the same question of law.

In 2004, ICJ had ruled in the Avena case that US had violated Vienna Convention on Consular Relations (VCCR) by not providing consular access to Mexico for its 50 nationals who were on death rows in various American states. Similarly in La Grand case of 2001, a suit against the United States was filed by Germany in the International Court of Justice, claiming the United States law enforcement agent failed to advice its citizen upon their arrests of their rights under the Vienna Convention of Consular Relations.

The court held that the meaning adduced to the phrase “authorities shall inform the person concerned without delay of his rights under this subparagraph” of Article 36 suggests that the rights to be informed of their rights under the Convention is an individual right of every national of a state that is party to the Convention[8].

In both the judgements, ICJ held that the United States was in breach of its obligations provided under the Article 36 of the Vienna Convention on Consular Relations and directed it to give “effective review and reconsideration” to sentences and convictions of Foreign arrested nationals. The same has been held in the Jadhav Case, for “review and reconsideration” of the conviction and sentencing of Mr. Jadhav by the Pakistani government as it was held in the above-mentioned two cases.

Pakistan’s counter memorial had highlighted the three basic objections to the Indian application.

First of all, it was contended that the case of Mr. Jadhav brought by India before ICJ is an abuse of the Court’s process as India in reality pursuing different purposes which takes the application outside the scope of the provision.

Secondly, Pakistan argued that the Mr. Jadhav case should be dismissed on the ground of abuse of rights. It is contended that the India is not able to prove Indian nationality of Mr. Jadhav. And Pakistan also claimed that India has violated the international obligations under the United Nation Security Council Resolution 1373 0f 2001[9] by authorizing Jadhav to continuing with espionage and terrorist activities.

Thirdly Pakistan contended that India’s petition was based upon the India’s own misconduct and relying on the Doctrine of “Clean Hands” and the principles of “ex turpi causa non oritur actio”[10] and “ex juria jus non oritur[11]” and hence the case must be dismissed.

The ICJ in its judgement held that firstly it had complete jurisdiction over cases falling under the ‘Article 1 of Optional Protocol to Vienna Convention on Consular Relations concerning the compulsory settlement of Disputes, 1963’. Therefore, rejecting the objection of Pakistan that India has abused its procedural rights. On the question of Mr. Jadhav nationality, the court held that there is no room for doubt that Mr. Jadhav is not an Indian national.

The court also rejected the other objections raised in the second objection by Pakistan on account of holding no “merit”. Dealing with the third contention of Pakistan, the court held that it did not find any unlawful activity or conduct of India, thereby rejecting the Pakistan’s ‘Clean Hands’ doctrine.

Further Pakistan could not provided with the explanation of how India’s unlawful conduct, that is, the alleged action of espionage prevented Pakistan from providing consular access to Mr. Jadhav. Thus the court did not uphold Pakistan's objection based on the "ex turpi causa non orituractio" principle.

Furthermore the Court noted that the concept of ex injuria jus non oritur, which specifies that improper activity cannot change the statute applied in the relations between the parties, is equally insufficient for the circumstances of the case. The court further added that there is no mention of any alleged exception of espionage in the Vienna Convention as Pakistan claimed. And the bilateral Agreement of 2008 constitutes a subsequent agreement within meaning of Article 73, paragraph 2, of Vienna Convention and does not displace obligations under Article 36. ICJ stated that Pakistan is failed to follow the Vienna Convention on the following grounds:
  • Jadhav was not informed of his rights after he was arrested
  • Pakistan failed to inform India, without delay, of the arrest and detention of Jadhav.
  • Pakistan also failed to inform India’s consular post of arrest and detention of Jadhav, where Pakistan made the notification three weeks after the arrest was made.
  • Pakistan failed to provide consular access to Jadhav[12]

Thus the court ordered that Pakistan is under international obligation “to cease internationally wrongful act of a continuing character”. Mr. Jadhav should be informed of his rights and the Indian Consular officers must be given access to the Jadhav and arrange for his legal representation.

Pakistan will review and rethink Jadhav's conviction and sentencing and will pass relevant laws if applicable such that such a review can be carried out in a free and fair manner. The ICJ put a stay on the execution until the moment when Pakistan takes those action and the confusion persists in this situation.

Conclusion
The author is of the view that the court decision is very balanced, it is neither win nor loss for any side in this case. And the trial of Mr. Jadhav is a long way to go. The court order founding Pakistan guilty of violating the Article 36 of the Vienna Convention and ordering Pakistan to give access of Indian Consular officers to Mr. Jadhav and arrange for his legal representation and an stay on his execution till he gets the opportunity of having a legal proceeding, in a free, fair and transparent manner with Consular access is a win for India. But still Pakistan had the discretion to decide in what manner it wants to review Mr. Jadhav’s conviction case and to secure his Vienna Convention right. It has to be seen in which manner and to what extent Pakistan will provide Consular access to Mr. Jadhav and how it will implement this order.

End-Notes:
  1. Article 36 Communication and contact with nationals of the sending State of VCCR, 1963 available at https://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf
  2. Article 73 Paragraph 2 of VCCR, 1963 read as: Nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof. Available at https://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf
  3. https://www.icj-cij.org/en/case/168 last accessed on 26th Nov. 2020
  4. https://lexlife.in/2020/05/25/vienna-convention-on-consular-relations-1963/ last accessed on 26th Nov 2020
  5. Article 1: 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, available at https://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963_disputes.pdf
  6. 2001 I.C.J.466
  7. (2004) ICJ Rep 12
  8. https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-7/lagrand-case-germany-v-united-states/ last accessed on 27th Nov. 2020
  9. The United Nations Security Council Resolution 1373 of 2001 states that UN member states were encouraged to share their intelligence on terrorist groups in order to assist in combating international terrorism. The resolution also calls on all states to adjust their national laws so that they can ratify all of the existing international conventions on terrorism. States “should also ensure that terrorist acts are established as serious criminal offences in domestic laws and regulations and that the seriousness of such acts is duly reflected in sentences served”, available at https://www.unodc.org/pdf/crime/terrorism/res_1373_english.pdf
  10. Ex turpi causa non oritur actio” means of an illegal cause there can be no lawsuit
  11. Ex injuria jus non oritur” means law (or right) does not arise from injustice
  12. Dr. Dhrubajyoti Bhattacharjee, The Verdict of ICJ on the Kulbhushan Jadhav Case available at : https://www.icwa.in/show_content.php?lang=1&level=3&ls_id=4307&lid=2012#_ftn7

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