ICJ’s Kulbhushan Jadhav verdict: What it means for India and Pakistan
In the much talked about Kulbhushan Jadhav case, the International Court of Justice (ICJ) ruled in favour of India against Pakistan. Any India-Pakistan matter is always accompanied by unnecessary jingoism and bravado. Thus, it is imperative to separate wheat from the chaff for a clear understanding of the ICJ ruling.
As is well known, India moved the ICJ in 2017 when Jadhav, an Indian national, was sentenced to death by a Pakistani military court for his alleged involvement in espionage and terrorist activities. During Jadhav’s entire trial, India was not given consular access to him despite several requests. At the ICJ, India claimed that Pakistan has violated its obligations under Article 36 of the Vienna Convention on Consular Relations (VCCR) – a multilateral treaty signed in 1963 that lays down rules for consular relations between independent sovereign states.
Under Article 36 of the VCCR, nationals of the sending State (in this case, Jadhav is the ‘national’ and India is the ‘sending State’) have the right to access consular officers of their State. Likewise, the receiving State (in this case Pakistan) is under an obligation to inform the consular post of the sending State if a national of the latter is arrested. Also, consular officers have the right to visit such a national of the sending State to converse and correspond with him and to arrange for his legal representation.
The ICJ agreed with India and concluded that Pakistan breached Article 36 of the VCCR for the following reasons. First, Pakistan failed to inform Jadhav without delay of his rights under Article 36 of the VCCR. Second, Pakistan failed to notify the appropriate Indian consular post in Pakistan without delay about Jadhav’s detention. Third, Pakistan denied India’s consular officers to have access to Jadhav, and to render assistance to him including arranging for his legal representation. The ICJ also clarified that Article 36 of the VCCR does not exclude from its scope persons suspected of espionage.
The ICJ also rejected Pakistan’s contention that the question of consular access between India and Pakistan is governed by the 2008 bilateral agreement on consular access and not by the VCCR. The relevant part of the 2008 bilateral agreement provides that “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits.” Relying on this provision, Pakistan argued that Jadhav’s arrest was on ‘political or security grounds’, and thus it has the right to decide the question of consular access ‘on its merits’. The ICJ held that the 2008 agreement cannot be read as denying consular access, even when an arrest is made on political or security grounds. India and Pakistan, by entering into the 2008 agreement, have not contracted out of the VCCR. Referring to Article 73(2) of the VCCR, the ICJ held that while countries that are signatories to the VCCR can enter into a bilateral agreement; this can only be for the purpose of confirming, supplementing, extending, or amplifying the VCCR provisions. On this basis, the ICJ concluded that the 2008 bilateral agreement does not displace the Article 36 obligations on Pakistan.
One of the reliefs India sought from the ICJ was to direct Pakistan to release Jadhav, and to facilitate his safe passage to India. The ICJ did not accept this argument. It held that its jurisdiction is restricted to interpreting and applying the VCCR provisions, and does not extend to other matters. Moreover, referring to the Avena case decided by the ICJ that involved Mexico and the United States, the court held that it was not the conviction or sentencing of Jadhav, which are to be regarded as violation of the VCCR.
The ICJ has has obligated Pakistan to undertake an effective review and reconsideration of the conviction and sentence of Jadhav through means of its choosing, which could include enacting an appropriate legislation. However, ICJ has emphasised that this review shall be effective only if Pakistan gives full weight to the adverse consequences and prejudices that have resulted from Pakistan’s non-compliance of Article 36 of VCCR. Till such an effective review is undertaken, the stay on Jadhav’s death sentence shall continue. The ball is now in Pakistan’s court as to how it implements the ICJ ruling both in letter and spirit. Under Article 94(1) of the United Nations Charter, Pakistan is under an obligation to comply with this ruling.
This is the second international law case that Pakistan has lost in a week. A few days back, the International Centre for Settlement of Investment Disputes (ICSID) of World Bank ruled against Pakistan for violating the Pakistan-Australia bilateral investment treaty and ordered Pakistan to pay $6 billion as damages. Thus, Pakistan should carefully plan its next steps keeping in mind that the international community is watching it closely.
Prabhash Ranjan teaches at the faculty of legal studies, South Asian University
The views expressed are personal