Pakistan to grant India consular access to Kulbhushan Jadhav: All you need to know about Article 36 of Vienna Convention

On 17 July, the International Court of Justice (ICJ) ruled that Pakistan should “review and reconsider” Kulbhushan Jadhav's conviction and death sentence. The court, based at The Hague in the Netherlands, ruled in favour of India and ruled that Pakistan should give the Indian government consular access to Jadhav, something Islamabad has failed to do in three years since his arrest on 3 March, 2016.

 Pakistan to grant India consular access to Kulbhushan Jadhav: All you need to know about Article 36 of Vienna Convention

Judges are seen at the International Court of Justice during the final hearing in the Kulbhushan Jadhav case. Reuters

After the ICJ suspended the death sentence awarded to Jadhav by a Pakistan military court, Islamabad on Friday announced that it will grant consular access to the former Indian Navy officer.

In a late-night statement, Pakistan said, "As a responsible state, Pakistan will grant consular access to Commander Kulbushan Jadhav according to Pakistani laws, for which modalities are being worked out."

The ministry also said that Jadhav had been informed of his rights under the Vienna Convention on consular relations.

"Pursuant to the decision of the ICJ, Commander Kulbhushan Jadhav has been informed of his rights under Article 36, Paragraph 1(b) of the Vienna Convention on Consular Relations," the Foreign Ministry said.

"As a responsible state, Pakistan will grant consular access to Commander Kulbhushan Jadhav according to Pakistani laws, for which modalities are being worked out," it said.

Jadhav, 49, a retired Indian Navy officer, was sentenced to death by a Pakistani military court on charges of "espionage and terrorism" in April 2017 following which India had moved the International Court of Justice, seeking a stay on his death sentence and further remedies.

A 16-member bench headed by President of the Court, Judge Abdulqawi Ahmed Yusuf, by 15-1 votes ordered Pakistan on Wednesday to undertake an "effective review and reconsideration" of the conviction and sentence of Jadhav and also to grant consular access to India without further delay.

In its 42-page order, the world court while rejecting Pakistan's objection to the admissibility of the Indian application in the case, held that "a continued stay of execution constitutes an indispensable condition for the effective review" of the sentence of Jadhav.

'Verdict'

In its verdict, the ICJ found Pakistan to be in violation of Article 36(1) of the Vienna Convention by not informing Jadhav “without delay” of his rights and not notifying India about Jadhav’s arrest and detention.

“The Court finds that, by not informing Mr Kulbhushan Sudhir Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, the Islamic Republic of Pakistan breached the obligations incumbent upon it under that provision.”

“The Court finds that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations.”

'Consular access'

The Vienna Convention on Consular Relations of 1963 is an international treaty that defines a framework for consular relations between independent states. A consulate normally operates out of an embassy in another country and performs two objectives: (1) safeguarding the interests of countrymen in the host country, and (2) expanding the foundation of commercial and economic relations between the two states/countries. It has 79 articles as clauses under the treaty.

Article 36 of the Vienna Convention states that foreign nationals who are arrested or detained be given notice without delay of their right to have their embassy or consulate notified of that arrest. It states that "If the detained foreign national so requests, the police must fax that notice to the embassy or consulate, which can then check up on the person. The notice to the consulate can be as simple as fax, giving the person’s name, the place of arrest, and, if possible, something about the reason for the arrest or detention.”

Basically the Article 36 under this convention deals with communication and contact  of foreign nationals and specifically sets out that in instances where an arrested foreigh national requests, the consular post of his country must be informed without delay, and also sets out that consular officers shall have a right to visit the foreign national who is in prison, custody or detention. Moreover, the wording of this Article does not in any way carve out any exceptions leading to the circumstances of arrest, including but not limited to espionage, on the basis of which consular access may be denied.

However, consular access to detained or arrested persons is, itself, a substantive provision that is intended to serve as a check on the treatment meted out to such persons, and ensure that such persons are not coerced into accepting the charges laid against them by the detaining state – an important concern that was voiced since release of Pakistan's  videotaped ‘confession’ by Jadhav.

The claims that Jadhav was involved in terrorism and espionage stem from his custodial confession, made on 25 March, 2016, stating that his “purpose was to hold meetings with Baloch insurgents and carry out activities with their collaboration.” The video states that the activities carried by Jadhav have been of criminal in nature. These have been of anti-national and terrorist activities leading to killing or maiming of Pakistani citizens also.”

'Rejected Remedies'

Though, the ICJ rejected most of the remedies sought by India in its final submissions. India had requested remedies, asking the Court to declare that the sentence of Pakistan’s military court is violative of international law and the provisions of the Vienna Convention, and that “India is entitled to restitutio in integrum (restoration to original condition)”, the judgement read. It sought the release and safe passage of Jadhav to India. In the event that these remedies cannot be granted, India had sought that Jadhav’s case is to be tried under ordinary law before civilian courts in Pakistan with the right to India to arrange legal representation for Jadhav.

While Pakistan said it will now proceed "as per law" in the case after the ICJ ruled that it must review the death sentence for the Indian national who has been sentenced to death by a Pakistani military court on charges of "espionage and terrorism".

The Foreign Office in a statement said Pakistan as a "responsible member" of the international community "upheld its commitment" from the very beginning of the case by appearing before the court for the provisional measures hearing despite the very short notice.

With inputs from PTI

Updated Date: Jul 19, 2019 15:31:58 IST