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:

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Sovereign Immunity in Commercial Matters?

Scope of Sovereign Immunity:

Business or commercial activities carried out by one Country in the territory of another country ordinarily not entitled to plead sovereign immunity.

Principle of sovereign Immunity

There is no agreed principle except this: that each State ought to have proper respect for the dignity and independence of other States. Beyond that principle there is no common ground. It is left to each State to apply the principle in its own way, and each has applied it differently. Some have adopted a rule of absolute immunity which, if carried to its logical extreme, is in danger of becoming an instrument of injustice. Others have adopted a rule of immunity for public acts but not for private acts, which has turned out to be a most elusive test. All admit exceptions. There is no uniform practice. There is no uniform rule. So there is no help there.
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Public International Law

An Introduction to Public International Law

Definition of Public International Law:

Public International Law is that branch of law which deals with code of conduct including rights and duties of Sovereign States. The term sovereign states include other analogous entities like International Organisations, Inter-Governmental Organisation.
With phenomenal increase in global trade in last century popularly called Globalisation, many laws affecting Corporations and Individuals having presence in multiple countries and jurisdictions are also part of Public International Law.

Private International law is different from Public International Law in as much as the former deals with rights, liabilities and resolutions of disputes of private citizens or corporations with reference to the principles of conflict of laws.