Tangle over Jadhav

India and Pakistan are locked in a legal battle at the International Court of Justice (ICJ) in The Hague over Kulbhushan Jadhav, an Indian national held in Pakistani custody.

On May 18, the ICJ ordered Pakistan that “it shall take all measures at its disposal to ensure that Jadhav is not executed pending the final decisions in these proceedings.” In the process, India also maintained its chequered record of having won all cases at the ICJ, especially those against Pakistan. India in its submissions rightly described the trial as being “farcical” and the military court as a “kangaroo court” which has led to the “erosion of rule of law.”

The question of right to consular access is provided in Article 36(1) of the Vienna Convention which assures access to nationals in a foreign country in the event of an arrest, detention in order to guarantee the right to counsel, due pro­cess through consular notification and effective access to consular protection.

Both India and Pakistan are parties to the Vienna Convention as well as its Optional Protocol which concerns the Compulsory Settlement of Disputes that arise out of breaches in the Vienna Convention. On the other hand, India had offered Pakistan consular access to the lone survivor terrorist Ajmal Kasab in 2011. It is another matter that Pakistan refused to avail the offer.

The ICJ set the parameters for a legal dispute between two states arising from judgements passed in the 1961-62 South-West Africa disputes. In a similar vein, the ICJ held that by not providing Jadhav with consular access, it resulted in a disagreement between mutual legal obligations that are “positively opposed by the other.”

In a unanimous decision, Justice Dalveer Bhandari who was one of the judges in Jadhav’s case appended his concurring opinion wherein he articulated further the requirements for provisional measures: “prima facie jurisdiction”, “plausibility”, “real and imminent risk of irreparable prejudice” and the “link between the rights claimed on the merits and provisional measures requested.” The Pakistan Foreign Office, in the aftermath of the ICJ’s recent order, conveyed to the media that the ICJ has “changed nothing” in its order for provisional measures.

India has every reason to be worried about Jadhav, who it fears could meet the fate of Sarabjit Singh whom Pakistan convicted of terrorism and spying. On its part, India maintained that he was only a farmer who had strayed over into Pakistani territory.

After diplomatic dialogues, Sarabjit was finally set to be released from Kot Lakhpat jail, Lahore, and return home. But on the day of his release, fellow inma­tes reportedly attacked him and he died a few days later. With Pakistan showing no conclusive proof of Jadhav being alive, this grim possibility cannot be ignored.

Earlier, India and Pakistan faced off at The Hague in September 1999, after Indian Air Force fighter pilots shot down a Pakistan Navy aircraft, Atlantique. The incident took place over the Rann of Kutch, only a month after the Kargil war, thus aggravating the already tense India-Pakistan ties. The Court though upheld India’s submissions that it had no jurisdiction to hear the case because of India’s Commonwealth exception with regard to Article 36(2) of the ICJ statute.


‘Provisional measures’

Professor Emeritus Upendra Baxi observes on the Jadhav case that these “provisional measures” are a sword of global justice. Judge Cancado Trinidade observed in his concurring opinion that the “great legacy of the juridical thinking of the second half of the 20th century... has been, by means of the emergence and evolution of the International Law of Human Rights, the rescue of the human being as a subject.”

Pakistan has two options — it can either choose to follow the La Grand case (Germany vs US, March 5, 1999), wherein the US executed two German nationals accused of terrorism and burglary despite the ICJ’s stay on the execution. Similarly, in the Avena case (Mexico vs US March 31, 2004), 54 Mexican nationals found guilty of different crimes in the US were executed even though the ICJ had stayed the executions. To that extent, both cases are eerily similar to Jadhav’ s plight over the dispute arising out of the application of the Vienna Convention on Consular Relations.

Advocate Nakul Dewan in Bar and Bench, an online legal portal, observes that the potential for political isolation and declaration of being labelled an international pariah might corner Pakistan. Islamabad would instead fight the case before the ICJ and not walk on a tightrope of a US precedent. After much criticism, Pakistan has decided to change its entire legal team and talks are rife that it might even request the ICJ to appoint a judge of its own choice ad-hoc.

Pakistan may attempt to oust the ICJ jurisdiction related to the November 2008 India-Pakistan agreement and maintain that the Vienna Convention obligations do not extend to espionage or terror cases. India, during such times of “humanisation of international law,” could argue that “violations of the rights of the individual under Article 36 may entail a violation of the rights of the sending state, and that violations of the rights of the latter may entail a violation of the rights of the individual.”

Finally, India needs to maintain that obligations under Vienna Conventions are binding on all states. New Delhi in its prayer for relief requested for “restitution” but it has to be seen if the ICJ shifts from its stance of “review and reconsideration of convictions and sentences” and instead regards the denial of consular access which warrants a fresh trial, and annuls all legal proceedings thus far.

None of this is improbable, but every step towards the goal of justice for Jadhav would require tireless exertions and passionate concern by the Indian legal team at The Hague.

(Agarwal is Assistant Professor and Roy is final year student, School of Law, Christ University, Bengaluru)

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