Kulbhushan Jadhav case at ICJ: A brief overview of India's position in The Hague and Pakistan's likely response

  • India argues that Pakistan has engaged in “egregious violations of the Vienna Convention."

  • India wants the ICJ to give a directive to Pakistan to annul Jadhav’s death sentence.

  • Pakistan alleges Jadhav was involved in espionage and terrorism-related activities.

-What is India's stance at the ICJ?

India argues that Pakistan has engaged in “egregious violations of the Vienna Convention on Consular Relations” in the course of its prosecution of alleged spy Kulbhushan Sudhir Jadhav. India was formally informed of Jadhav’s arrest on 25 March, 2016. India made at least 16 requests for consular access to him after that, which were either denied or ignored.

-What is India hoping for from the International Court of Justice?

India wants the ICJ to give a directive to Pakistan to annul Jadhav’s death sentence; declare that his military trial was in violation of the Vienna Convention, and a directive to Pakistan to release him.

 Kulbhushan Jadhav case at ICJ: A brief overview of Indias position in The Hague and Pakistans likely response

File image of Kulbhushan Jadhav. Image courtesy: News18

-What is Pakistan’s response likely to be tomorrow, when its lawyers get their turn to speak?

Pakistan alleges Jadhav was a serving Indian naval officer involved in espionage and terrorism-related activities, particularly in the province of Balochistan. It claims that the Vienna Convention is not applicable in such cases—and that even if it was, a 2008 bilateral agreement between the two countries overrides the Vienna Convention.

-What is the case against Jadhav?

Jadhav was tried under the Official Secrets Act, 1923, for “espionage and sabotage activities against Pakistan.” Evidence against Kulbhushan Jadhav includes a purported confession that was later broadcast on Pakistani media. However, the trial was conducted by a military court, and its proceedings were not public. Pakistan’s Army Act, 1952, allows military courts to hear cases that arise out of the Official Secrets Act.

-What is the Vienna Convention on Consular Relations?

The Vienna Convention, among other things, provides that when a national of a foreign country is arrested or detained, she or he has the right to notify their country’s diplomatic mission, and to meet with its officials. There is no exception clause for spies or terrorists—or, indeed, anyone else—in the Convention. The International Court of Justice has in earlier cases held that authorities have a duty to inform a foreign national of this right.

-What does the 2008 bilateral agreement between India and Pakistan say?

The agreement, concluded to ensure “the humane treatment of nationals of either country arrested, detained or imprisoned”, states that both countries may examine consular access claims on merits in cases of “arrest, detention or sentence made on political or security grounds.”

-Which is is more important—the bilateral agreement of the Convention?

The Vienna Convention states that it does not preclude States from “concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof.” The language seems to suggest that bilateral treaties can only enhance, not dilute, Vienna Convention rights—but that’s one of the many things the judges have to decide.

-What can the ICJ do?

The ICJ is only allowed to decide whether or not Pakistan violated the Vienna Convention. If it does so, it may ask Pakistan to review or reconsider Jadhav’s conviction. However, legal experts say the court is unlikely to rule on the legality of trials by military courts in Pakistan, or the legitimacy of the trial and sentencing. Thus, Jadhav may get another day in court, now with assistance from the Indian High Commission in Islamabad—but it will more likely than not still be another closed-door military court.

-Are the ICJ’s judgments binding?

Yes, they are—and a country can go to the United Nations Security Council if “any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court.” But a number of countries have flouted ICJ judgments, including the United States.

Updated Date: Feb 18, 2019 18:45:41 IST