Jadav is entitled to Consular Access; held by INTERNATIONAL COURT OF JUSTICE

Dispute between India and Pakistan

India had approached the UN court alleging that Pakistan had violated Article 36 of the Vienna Convention on Consular Relations 1963 by failing to inform India of Kulbhushan Jadhav’s arrest and by refusing consular access to him.

On the other hand, Pakistan argued that Vienna Convention on Consular Relations was not applicable to persons detained on charges of espionage.

Pakistan claimed that its forces arrested Jadhav from Balochistan province on March 3, 2016, after he allegedly entered from Iran.However, India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy.

Arguments:

India submitted that Jadhav’s conviction was based on extracted confessions and that the military court had not followed due process by denying him Consular Access under Vienna Convention.

Pakistan disputed Jadhav’s Indian identity. There was no proof of him being retired from armed forces. He was in possession of an Indian passport with a Muslim cover name, Qureshi submitted. He cited articles written by Indian journalists Karan Thapar, Praveen Swami and Chandan Nandy to state that Jadhav was a spy planted by India in Pakistan on an espionage mission.

Factual background and Issues:

Arrest and detention by Pakistan of an individual named Mr. Kulbhushan Sudhir Jadhav — Mr. Jadhav accused of involvement in espionage and terrorism activities — Criminal proceedings instituted — Mr. Jadhav sentenced to death by military court in Pakistan.

Jurisdiction of the Court:

Dispute relates to interpretation and application of Vienna Convention on Consular Relations — The Court has jurisdiction under Article I of Optional Protocol to Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.

Admissibility of India’s Application:

First objection of Pakistan to admissibility — Alleged abuse of process — No basis to conclude that India abused its procedural rights when it requested indication of provisional measures — Articles II and III of Optional Protocol do not contain preconditions to the Court’s exercise of its jurisdiction — First objection to admissibility rejected.

Second objection of Pakistan to admissibility — Alleged abuse of rights — Contention by Pakistan that India failed to prove Mr. Jadhav’s nationality — No room for doubt that Mr. Jadhav is of Indian nationality — Other arguments advanced by Pakistan based on alleged breaches of India’s international obligations under Security Council resolution 1373 (2001) — Allegations to be examined below as part of the merits — Second objection to admissibility rejected.

Third objection of Pakistan to admissibility — India’s alleged unlawful conduct — Pakistan’s objection based on “clean hands” doctrine rejected — No explanation how alleged unlawful conduct by India prevented Pakistan from providing consular access — Pakistan’s objection based on principle of “ex turpi causa non oritur actio” cannot be upheld — Principle “ex injuria jus non oritur” inapposite in present case — Third objection to admissibility rejected.
India’s Application admissible.

Applicability of Article 36 of Vienna Convention:

In a major victory for India, the International Court of Justice on 17 July 2019,  held that Pakistan violated Vienna Convention on Consular Relations 1963 by not informing Kulbhushan Jadhav without delay of his rights under Article 36(1)(b) to have consular access. ICJ ordered:

“the Court is of the view that Pakistan is under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Vienna Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraph 1 (a) and (c).”

The ICJ has directed Pakistan to provide effective review and reconsideration of his conviction and the death sentence. The choice of means is left to Pakistan. The Court noted that the higher courts of Pakistan can review the judgment of military court. Pakistan law provides for clemency petitions for Jadhav as well.

“the Court finds that Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention”

“The Court reaffirms that “it is a principle of international law… that any breach of an engagement involves an obligation to make reparation” and that “reparation must, as far as possible, wipe out all the consequences of the illegal act”

It ordered that the stay of execution ordered on May 17 will continue until Pakistan takes “effective review and reconsideration of the conviction and sentence of Mr. Jadhav”.

The Court has however rejected India’s prayer for annulment of the military court’s conviction of Jadhav saying that his conviction cannot be regarded as a breach of Vienna Convention. It observed:

“With regard to India’s contention that it is entitled to restitutio in 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 President of the Court Justice Abdulqawi Ahmed Yusuf read out the order. It also observed:

“In this regard, the Court takes full cognizance of the representations made by Pakistan. During the oral proceedings, the Agent of Pakistan declared that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and,if not, “the process of judicial review is always available”. Counsel for Pakistan assured the Court that the High Courts of Pakistan exercise“effective review jurisdiction”, giving as an example the decision of the Peshawar High Courtin2018 (see paragraph142 above). The Court points out that respect for the principles of a fair trial is of cardinal importance in any review and reconsideration,and that, in the circumstances of the present case,it is essential for the review and reconsideration of the conviction and sentence of Mr.Jadhav to be effective. The Court considers that the violation of the rights set forth in Article36, paragraph1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process.In particular, any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration.”

The objections raised by Pakistan against admitting India’s application on grounds of abuse of process were rejected by the Court by 15 :1 majority, with the Pakistani judge Justice Jilani voting in favour of Pakistan.

Espionage not an exception to right to consular access:

The Court rejected Pakistan’s argument that right to consular access is not applicable to persons accused of espionage by 15:1 majority. The Court observed that Article 36 of the Vienna Convention, when read in its context and purpose, does not exclude persons suspected of espionage. The text and purpose of Article 36 does not support the argument that it does not apply to categories of persons suspected of espionage, said the Court.

The second argument by Pakistan that rules of customary international law permit it to deny consular access to spies was also rejected. In this regard, the Court noted that Vienna Convention consolidated the law on the subject, and since India and Pakistan are both signatories to the Convention, customary law will not govern the matter.

The third argument by Pakistan that 2008 bilateral agreement between India and Pakistan will govern the issue was also rejected. The Court expressed the view that the clauses of the agreement cannot be read as denying consular access to citizens arrested in the other country on political grounds. On the other hand, the agreement unequivocally reflected the intention of both the countries to extend humanitarian treatment to arrested persons belonging to the other nationality.

Pakistan’s position that Vienna Convention will not apply to Jadhav give rise to the inference that Pakistan had not complied with its obligations under the Convention.

The UN court had held public hearings from February 18 to February 21 in the case concerning the execution of former Indian Navy Officer Kulbhushan Jadhav, who was sentenced to death by a Pakistani Military Court on espionage charges.

[Source: General List No. 168 decided on 17 July 2019 titled JADHAV CASE (INDIA v. PAKISTAN)]
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