Kulbhushan Jadhav Case – Part II

Why in news?

After a break of close to 18 years, India-Pakistan again found themselves in the International Court of Justice at The Hague.

What is the issue?

  • India claimed that Pakistan had breached its international law obligations by refusing consular access to Kulbhushan Jadhav, who has been sentenced to death on charges of espionage and terrorism.
  • Jadhav, an Indian national, was arrested by Pakistani officials in 2016.
  • India claims that Jadhav is a former naval officer, who was running a business in Iran from where he was kidnapped and shown to have been arrested in Baluchistan.
  • Pakistan alleges that Jadhav is a serving naval officer, who was tasked by the Indian intelligence agencies to destabilise Pakistan and was arrested in Baluchistan.

What is status of the case?

  • India’s applied in International Court of Justice, to prevent Pakistan from escalating the dispute by executing Jadhav.
  • Pakistan has (and will continue to) strongly contested the jurisdiction of the Court to decide this case.
  • In 2008, the two nations entered into a bilateral agreement on consular access, which modifies their obligations under the Vienna Convention.
  • Unlike the Vienna Convention, this bilateral agreement does not provide for the submission of disputes to the International Court.
  • The International Court need only be satisfied that it has a prima facie basis for jurisdiction to direct Pakistan not to execute Jadhav for the duration of the proceeding.

What are the arguments of the nations?

  • India could argue this provision of the bilateral agreement should be read narrowly.
  • Even if the bilateral agreement allows countries to deny consular access in cases involving security, it surely cannot have been the intention that they could simply label any case with the Spying and deny all consular access.
  • There are also indications that Pakistan will argue that its denial of consular access is linked with India’s refusal to co-operate in the investigation.
  • The foreign affairs minister of Pakistan claimed that India has similarly denied consular access to many Pakistani nationals over the years.
  • If the Court accepts the argument, then it is left with little choice but to hold that a clause that permits a state to withhold consular access entirely would naturally also permit it to withhold such access conditionally.
  • If the Court decides that the provisions of the Vienna Convention apply, then these arguments collapse spectacularly.