In the International Court of Justice
|Name of the Case||The Jadhav Case (India v. Pakistan)|
|Citation||July 17, 2019|
|Year of the Case||2019|
|Bench/Judges||ICJ president Abdulqawi Ahmed Yusuf (Somalia), Vice president Xue Hanqin (China), Judge Peter Tomka (Slovakia), Judge Ronny Abraham (France), Judge Mohamed Bennouna (Morocco), Judge Antônio Augusto Cançado Trindade (Brazil), Judge Joan E. Donoghue (US), Judge Giorgio Gaja (Italy), Judge Julia Sebutinde (Uganda), Judge Dalveer Bhandari (India), Judge Patrick Lipton Robinson (Jamaica), Judge James Richard Crawford (Australia), Judge Kirill Gevorgian (Russian Federation), Judge Nawaf Salam (Lebanon), Judge Yuji Iwasawa (Japan), Tassaduq Hussain Jillani (Pakistan).|
|Acts Involved||Vienna Convention on Consular Regulations, 1963; Optional Protocol to the International Covenant on Civil and Political Rights, 1966.|
|Important Sections/Articles||Article 36 & Article 73 of Vienna Convention on Consular Regulations, 1963; Article 1, 2, 3 & 14 of Optional Protocol to the International Covenant on Civil and Political Rights, 1966.|
This article is a complete case study on the landmark case of The Jadhav Case (India v. Pakistan). It states the background of the case along with the facts, issues involved, related provisions, precedents used, and the judgment of the International Court of Justice (ICJ). This case is considered to be one kind especially concerning the judgment made. It also mentions an analysis of the case that highlights the main concepts and their major role.
There have been cases between India and Pakistan for a long time now and the majority of them are related to terrorism. This has always been the concerning matter. The arrest of Kulbhushan Jadhav and Pakistan’s decision of his execution has raised numerous questions about the “proper process of a fair trial” and their justice system.
Kulbhushan Sudhir Jadhav is an Indian national who is on the death row in Pakistan. He is an ex-naval officer but Pakistan claims him to be a current naval officer. Pakistan claims the former Indian Navy officer was arrested by its security forces on March 3, 2016, from Balochistan. India, however, states that he was kidnapped from Iran, where he was running a business in the port city of Chabahar after a “premature retirement” from the Navy.
He was accused of carrying out espionage and sabotage activities against Pakistan at the behest of India’s intelligence agency although India denied all such allegations. The Pakistani government claimed that Jadhav was a serving Navy officer and was involved in wrong activities against Pakistan. Allegedly, the Pakistani authorities also refused the offer to India concerning consular access to Mr. Jadhav, despite repeated requests.
On 8 May 2017, India instituted proceedings before the International Court of Justice (ICJ) against Pakistan, accusing the latter of ‘egregious violations of the Vienna Convention on Consular Relations’ (VCCR). [i]The dispute concerns the treatment of an Indian national, Mr. Kulbhushan Sudhir Jadhav, who was detained, tried, and sentenced to death by a court in Pakistan. India stated that Pakistan failed to inform about Mr. Jadhav’s detention until 22 days after his arrest and also did not inform Mr. Jadhav of his rights under the VCCR.
Kulbhushan Jadhav was arrested by the Pakistan security forces. They claimed that Kulbhushan Sudhir Jadhav may be a serving Indian Navy officer, who was arrested in Balochistan in March 2016 after crossover from Iran. He was accused of espionage and terrorism and sentenced to death by a military court in April 2017.
India dismissing all such allegations stated that Jadhav was kidnapped from Iran where he was working on his business by Pakistani authorities. Even New Delhi denied the fact that he was a serving officer and claimed that Jadhav had retired from the Indian Navy in 2001. After Jadhav was sentenced to death, India visited the ICJ seeking an instantaneous stay the proceedings. [ii]
India has asked for restitution from Pakistan’s actions supported these four points:
- Immediate suspension of the death sentence.
- A declaration that the sentence by the Pakistani court was in “brazen defiance” of the Vienna Convention on Consular Relations (VCCR) and therefore the International Covenant on Civil and Political Rights (ICCPR) since Pakistan had restricted India from consular access to Jadhav.
- Direction to Pakistan to annul the choice of the court “as could also be available thereto under the law in Pakistan”.
- Declaration of the sentence as ‘illegal’ following the release of Jadhav, if Pakistan is unable to annul the choice.
India has dragged Pakistan before the ICJ for violating Article 36 of the VCCR, which rules that consular officers should have the right to go to and access their nationals during a foreign state.
Here, India has invoked the jurisdiction of the ICJ only under paragraph 1 of Article 36, but not the second paragraph of an equivalent Act. Article 36 (2) states that the rights in paragraph 1 “shall be exercised in conformity with the laws and regulations of the receiving state, subject to the proviso, however, that the said laws and regulations must enable full effect to tend to the needs that the rights accorded under this text are intended”.[iii]
Pakistan reiterated that a 2008 bilateral agreement on consular access between India and Pakistan was the key pact live within the current situation, rather than the VCCR. The 2008 Agreement was intended to possess legal effect, and may only be viewed as amplifying and supplementing the provisions of the VCCR 1963 as otherwise operative between these two states whose relationship has been fractious sometimes.[iv]
India asserted that the 2008 bilateral agreement couldn’t supersede the 1963 agreement. Instead, it acknowledged, the connection between bilateral treaties and therefore the VCCR was that of “agreements confirming, or supplementing or extending or amplifying the provisions (of Convention) thereof”.
The International Court of Justice (ICJ) directed Pakistan to review its decision of conviction and put his death sentence on hold. The court also asked Islamabad to permit New Delhi consular access at the earliest. the ICJ held that Jadhav’s execution will remain on hold until Islamabad “effectively reviews and reconsiders” his conviction. “A continued stay of execution constitutes an important condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.”
In its appeal, India had challenged the “farcical trial” that Jadhav was put through on the idea of what it called an extracted confession, and asked the court to instruct Pakistan to annul the sentence and permit India consular access.
The case concerns Pakistan’s failure to permit consular access to an Indian national detained on charges of great crimes.
- India has alleged “egregious violations of the Vienna Convention on Consular Relations (VCCR)” by Pakistan about the detention, trial, and conviction of Indian national Kulbhushan Sudhir Jadhav.
- Pakistani authorities arrested Jadhav on 3 March 2016.
- Pakistan informed India about the arrest on 25 March 2016.
- On 10 April 2017, Pakistan’s military announced Jadhav had been convicted and sentenced to death by a court for “espionage and sabotage activities against Pakistan.”
- India’s requests for consular access made a minimum of sixteen times ranging from 25 March 2016, were either denied by Pakistan or made conditional upon India’s assistance within the investigation against Jadhav.
- India alleges that Pakistan’s denial of the consular access is a breach of its obligations under article 36(1) of the VCCR.
- In May 2017, the ICJ accepted India’s plea for provisional measures and directed Pakistan to “take all measures at its disposal” to make sure Jadhav isn’t executed pending the ultimate decision of the Court.
- Following the hearings, the Court will deliberate and issue a judgment.
- While the dispute case is restricted to denial of consular access under the VCCR, it engages other critical fair trial concerns that arise in military trials in Pakistan.
- The International Commission of Jurists has documented how Pakistani military courts aren’t independent and therefore the proceedings before they fall far in need of national and international fair trial standards.
- Judges of military courts are a part of the chief branch of the State and still be subjected to military command; the proper to appeal to civilian courts isn’t available; the proper to a public hearing isn’t guaranteed; and a duly reasoned, written judgment, including the essential findings, evidence, and legal reasoning, is denied.
- The case also underscores one among the inherent problems of the death penalty: that fair trial violations that cause the execution of an individual are inherently irreparable.
- The International Commission of Jurists considers the execution to be a violation of the right to life and believes it to be a cruel, inhuman, and degrading punishment.
- Does the dispute fall under the jurisdiction of the International Court of Justice?
- Does Vienna Convention apply to Jadhav?
- Did Pakistan fail to provide consular access to Jadhav?
- Does the provision of the 2008 bilateral agreement state or impose any kind of limitations on the jurisdiction of ICJ via the Vienna Convention?
Concerning the jurisdiction of the ICJ, the dispute, in this case, relates to the interpretation and application of the 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. The objection of Pakistan to admissibility concerning abuse of process was held to have no basis to conclude that India abused its procedural rights when it requested an indication of provisional measures. Articles II and III of Optional Protocol  don’t contain preconditions to the Court’s exercise of its jurisdiction and so the objection was rejected.
Pakistan alleged that based on the charges of espionage, it was an exception under VCCR. However, no such reference in the Vienna Convention to cases of espionage was ever mentioned. Article 36 doesn’t exclude from its scope persons suspected of espionage. The Consular access has been expressly regulated by Article 36, and not by the customary law of nations. The relevancy of the 2008 Agreement on Consular Access between India and Pakistan does not restrict the rights guaranteed by Article 36 in the 2008 Agreement. The 2008 Agreement constitutes a subsequent agreement within the meaning of Article 73, paragraph 2, of the Vienna Convention .
Point (vi) of the 2008 Agreement doesn’t displace obligations under Article 36. None of the arguments, concerning the applicability of Article 36 of the Vienna Convention, can be upheld as the Vienna Convention is properly applied in the current case.
Relief by way of restitution in integrum by declaring that the sentence of the court received, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36 paragraph 1 (b), and in defiance of elementary human rights of an accused which also are to tend effect as mandated under Article 14 of the International Covenant on Civil and Political Rights 1966, is violative of the law of nations and therefore the provisions of the Vienna Convention.
The International Court of Justice while providing its verdict, worked with two of the case precedents:
- Germany v. The United States (LaGrand) 
- Mexico v. The United States (Avena) 
In both cases, it was ruled that the United States was in violation of the Vienna convention, and therefore they were ordered for a “review and reconsideration” of its process. Pakistan must realize that it cannot now emulate the instance of the U.S., which defied the ICJ’s ruling and work instead in straightness to implement the ICJ’s detailed recommendations for an efficient process of justice for Mr. Jadhav.
The final verdict about the petition submitted by India on the case of Mr. Kulbhushan Jadhav was awarded by the International Court of Justice (ICJ) on July 17, 2019. Both, the Indian along with the Pakistani media, declared the decision as a national victory. This case was the primary of its kind, where an appeal was made by India concerning the violation of both the Vienna Convention on Consular Relations alongside the laws that protect International Human Rights. The ICJ addressed the violation of the Vienna Convention on Consular Relations but didn’t linger over the violation of the International Human Rights .
On 13 December 2017, Pakistan submitted a counter-memorial highlighting three basic objections to the Indian application and reasoned why it needs to be rejected.
Within the first objection, Pakistan stated that the very fact that India brought the case of Jadhav to the ICJ was an abuse of the Court’s process. It had been so because although India’s application seeking the Court for a judgment or order for a selected purpose, actually was pursuing some different purpose which takes the appliance outside the scope of the supply on which it had been purportedly based.[v]
Secondly, Pakistan argued that the ICJ should dismiss India’s application on the bottom of the abuse of rights. It stated that India did not prove Jadhav’s Indian nationality and was ineligible to apply. Pakistan also claimed that India breached its international obligations under the United Nations Security Council Resolution 1373 of 2001, and India had authorized Jadhav to hold out espionage and terrorist activities.
Thirdly, Pakistan argued that India’s application was on the idea of India’s allegedly unlawful conduct, counting on the doctrine of “clean hands” and therefore the principles of “ex turpi causa non-orituractio” and “ex injuria jus non-oritur”, and hence the case must be dismissed.
In its final verdict on July 17, 2019, the ICJ stated that it had full jurisdiction over cases falling under ‘Article 1 of Optional Protocol to Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes’. Rejecting the primary objection made by Pakistan, the Court stated that it didn’t find that India has abused its procedural rights.[vi]
Dealing with the second objection made by Pakistan, the Court concluded that India didn’t abuse its rights while making the appliance. It made clear that there was ‘no room for doubt’ which Jadhav was an Indian national. The court also rejected the opposite objections raised within the second objection by Pakistan on account of holding no “merit”.
Dealing with the third objection from the Pakistani side, the Court stated that it didn’t find any unlawful conduct of India and rejected Pakistan’s “clean hands” doctrine. Pakistan couldn’t provide any explanation of how India’s unlawful conduct (i.e. alleged action of espionage) prevented Pakistan from providing Jadhav’s consular access. The court thus didn’t uphold Pakistan’s objection supported the principle of “ex turpi causa non-orituractio”. The Court further stated that similarly, the principle of “ex injuria jus non-oritur” which stands for the proposition that unlawful conduct cannot modify the law applicable within the relations between the parties is inappropriate to the circumstances of the case.
It stated that India’s appeal was admissible because the case fell under ICJ’s purview. The Court stated that there was no reference of any alleged exception in cases of espionage within the Vienna Convention as Pakistan claimed. The Court outrightly rejected Pakistan’s contentions supported human rights. It categorically stated that Pakistan did not abide by the Vienna Convention on the subsequent grounds:
- Jadhav wasn’t informed of his rights after he was arrested.
- Pakistan did not inform India, at once, of the arrest and detention of Jadhav.
- Pakistan also did not inform India’s consular post of arrest and detention of Jadhav, where Pakistan made the notification three weeks after the arrest was made.
- Pakistan did not provide consular access to Jadhav
As remedies, the Court gave the decision that Pakistan is under international obligation “to cease internationally wrongful acts of an unbroken character”. Jadhav should be told of his rights which Indian consular officers must tend access to Jadhav, and prepare him to rearrange for his representation. Pakistan will review and reconsider the conviction and sentence of Jadhav and if necessary, will enact appropriate legislation so that such review is often wiped out a free and fair manner. Till the time Pakistan takes such steps and therefore the uncertainty remains during this case, the ICJ placed a stay on the execution of Kulbhushan Jadhav.
The judgment delivered by the majority dealt majorly with the question of violation of Article 36 of the Vienna Convention. India argued for a really wide remedy under Article 1 of the Optional Protocol, to which the court rightly observed that its “jurisdiction is restricted to the interpretation or application of the Vienna Convention and doesn’t reach India’s claims supported the other rules of the International Law”. The ICJ judgment was a well-balanced judgment where the courts while limiting its interference only till its jurisdiction, given a judgment in best compliance of the law of nations. The judgments were well in line with the previous discourse of ICJ because the remedy granted within the present case was synonymous with the remedies given within the cases of LaGrand and therefore the Avena case which was supported an equivalent question of law. The ICJ involved “review and reconsideration” of the conviction and sentencing of Mr. Jadhav by the Pakistani Government because it did within the above-mentioned cases.
The judgment albeit negated a number of the far-fetched reliefs argued by India must have come off as a relief to the government of India because it surely got most of what it had been expecting, if not whole. This judgment of ICJ is often considered yet one more remarkable judgment within the course of the law of nations.
- Optional Protocol to the International Covenant on Civil and Political Rights, 1966.
- Vienna Convention on Consular Regulations, 1963.
- Germany v. the United States of America (LaGrand Case), International Court of Justice (ICJ), 27 June 2001.
- Mexico v. the United States (Avena case),  ICJ Rep 12
- Wasilewski, Tadeusz & Zenkiewicz, Maciej. (2018). The Jadhav Case, India v. Pakistan (ongoing case at the International Court of Justice, 2017). Comparative Law Review. 23. 283. 10.12775/CLR.2017.013.
- [i] Devirupa Mitra; Kulbhushan Jadhav Case: The Legal Arguments; 30th September 2020; https://thewire.in/south-asia/kulbhushan-jadhav-india-pakistan-international-court-of-justice
- [ii] Kulbhushan Jadhav Case: A timeline;30th September 2020; https://www.thehindu.com/news/national/kulbhushan-jadhav-case-a-timeline/article28492569.ece
- [iii] Shailaja Neelakantan; Kulbhushan Jadhav case: The four issues that swung ICJ’s ruling in India’s way; 30th September 2020; https://timesofindia.indiatimes.com/india/kulbhushan-jadhav-case-the-four-issues-that-swung-icjs-ruling-indias-way/articleshow/58733910.cms
- [iv] Jadhav (India v. Pakistan); 30th September 2020; https://www.icj-cij.org/en/case/168
- [v] Anurag Mohan Bhatnagar; Analysis: ICJ judgment on Kulbhushan Jadhav; 30th September 2020; https://lexlife.in/2020/05/28/analysis-icj-judgement-on-kulbhushan-jadhav/
- [vi] Dr. Dhrubajyoti Bhattacharjee; The Verdict of ICJ on the Kulbhushan Jadhav Case; 30th September 2020; https://www.icwa.in/show_content.php?lang=1&level=3&ls_id=4307&lid=2012