Kulbhushan Jadhav is an Indian national. It is alleged by the Pakistani government that he was arrested in the Pakistan province of Balochistan on charges of terrorism and spying for India’s intelligence agency, the Research and Analysis Wing.
India denied the allegations made by Pakistan and filed an appeal at the International Court of Justice on May 18, 2017.
Before understanding the whole matter, we need to understand Jurisdiction of the ICJ (International Court of Justice)
Jurisdiction of ICJ can be bifurcated into two divisions-
- Contentious (Dispute)
Contentious can be further bifurcated into 2 divisions-
Compulsory can further divide into 3 divisions-
- Treaty based
Kulbhushan Jadhav Case
It comes under treaty based that is why Pakistan could not say no, when India moved to ICJ.
Which Treaty :- Vienna Convention on consular relations1961 &1963. Both India and Pakistan are signatory to “optional protocol” of Vienna Convention concerning compulsory jurisdiction of ICJ on consular relations. It means all disputes fall under automatic jurisdiction, consent of the parties is not required.
Vienna Convention on consular relations
It is the treaty which define the framework of consular relations between independent states. 179 countries are party to it.
Consular is not defined as Diplomat. Any person authorised for performing 2 primary functions.
- Protecting the interest of the countrymen in the host country.
- Furthering economic and commercial relations.
Provisions in the Vienna Convention used by India in Jadhav’s case ?
One of the main argument of the GoI (Government of India) is the denial of consular access to the Kulbhushan Jadhav.
Article 5– Consular has right to protect the interest of nationals within the limit of the international law. Even the preamble of Vienna convention suggest the customary international laws shall continued to be use.
Article 36– Foreign nationals who are arrested should be given consular excess without delay. Consular will have right to visit the prison (place of detention).
India’s Demand ?
- India has demanded immediate suspensions of the death sentence of the death sentence awarded to the military court in Pakistan to Kulbhushan Jadhav without following Vienna Convention.
- India wants ICJ to direct Pakistan to release Jadhav and to restore the status as it is.
India and Pakistan have entered into an agreement in 2008. As per the government optional protocol does not apply in case of arrest or detention or sentence which has been made in context of political or security grounds. Each side will examine the case on merit.
Political or security grounds used for spies or Terrorist. Merit used for Political bargaining.
Kulbhushan Jadhav is not an ordinary citizen but an Indian spy on duty, involved in planning the terrorists attack in Pakistan.
He was detained from Balochistan.
By virtue of 2008 agreement ICJ does not have compulsory jurisdiction.
Pakistan has modified his compulsory jurisdiction submission in 2007.
As per which Pakistan exclude the issue related to national security from compulsory jurisdiction of ICJ.
ICJ jurisdiction does not apply. It is of criminal offence.
Kulbhushan Jadhav is retired navy official running his own business in Iran.
2008 argument does not apply because neither India nor Pakistan has submitted the argument to UN. As per article 102 of UN charter, No Treaty that has been registered with UN secretariat by a signatory can be invoked before any organ of UN.
India has also referred article 73 of Vienna convention. As per article 73(a), Vienna Convention does not affect any other international argument in force between the parties.
73(b)- Vienna Convention does not prevent States from concluding any international agreement supplementing, extending or amplifying the provision of the treaty.
According to India the agreement that facilitates rather than which prevent the access to justice will be considered as the part of 73(b).
It will be difficult for India to defend, why the passport was not carrying official name.
Options India have ?
If India can get the support of Iran and it can be proved that Jadhav got visa for business and was ordinary citizen.
If it has prove that he has abducted from Iran.
India has referred various cases but most important case is Avena case 2004 where USA had denied 54 Mexican citizens and sentenced them to death. ICJ could not force USA to review and reminder.
Verdict– The execution was stayed and The Court pronounced its verdict in the case on July 17, 2019, rejecting India’s appeal for Jadhav’s release and ordered Pakistan to suspend the execution.