The Curious Case of Kulbhushan Jadhav – The Enforceability Conundrum
December 10, 2022
The Kulbhushan Jadhav Case is an example of international arbitration regarding a dispute which involves human life. The beginning of this case was with the arrest and detention of Jadhav, an Indian national by Pakistan in 2016. The main issue which came up in this particular case is the denial of consular access based on the Vienna Convention on Consular Relations (VCCR) of 1963. VCCR is a treaty and the rules of the treaty interpretations are codified in the Vienna Convention on the law of treaties. The case brought the disputed facts regarding this treaty to light where the contentions or arguments of India and Pakistan were dealt with based on the facts and circumstances of the case. The International Court of Justice (ICJ) has interpreted the case based on the rules mentioned in the treaty along with the arguments put forward by the parties in this particular case.
Kulbhushan Jadhav Verdict – A Certain Win with Uncertain Outcome
The case of Kulbhushan Jadhav is one of the landmark judgments which gave clarity regarding the obligations under the VCCR. Even though this case can be considered a victory for India, it can be seen that as ICJ can provide only limited remedies for relief, the detention and death sentence remains uncertain based on the facts and circumstances of the case. In this case, an Indian national, Kulbhushan Jadhav was arrested and detained by Pakistan and sentenced to death by the Pakistani military court for his involvement in terrorism and espionage.
The case of Kulbhushan Jadhav is a resounding victory for India because the case has clarified the obligations of a country under the VCCR based on the facts and circumstances of the case. The failure of Pakistan to challenge the jurisdiction and admissibility shows the lack of reasonable grounds for the denial of rights to Kulbhushan Jadhav. The importance of Article 36 was focused on in this case where the rights of the consular officials when a national of their country is in prison or detention are clearly mentioned. In light of the court’s remedy, it is worth looking at how previous cases before the ICJ were managed in terms of implementation and application.
The findings and remedies in the Jadhav case, which are based on Article 36 of the VCCR, are similar to those in the LaGrand (Germany v. United States) and Avena cases (Mexico v. United States). The ICJ held that the US had violated its requirements under Article 36 VCCR in both cases, and ordered it to grant “effective review and reconsideration” to foreign nationals’ sentences and convictions.
Analyzing the Kulbhushan Jadhav Judgment
The 2019 judgment was given in favor of India where it was found that Pakistan was guilty of not respecting the VCCR and stated that consular access will be given to India. The ICJ stated that it has jurisdiction over this matter as per Article I of the Optional Protocol to VCCR. As per the protocol, it is said that the disputes between the treaty parties have to be settled compulsorily where the VCCR is found to be applicable. The admissibility of the application made by India was argued by Pakistan but the objections of Pakistan were rejected by ICJ. The ICJ focused on the substantive issues where VCCR was considered and the interpretation of the same was given by the court. The customary rules of treaty interpretation were considered and the arguments of Pakistan regarding the exception to consular access were also put forward.
Pakistan argued that the offense of espionage can be allowed for an exception to consular access as per Article 36 of the VCCR, but the court did not agree to this contention. It was said that the agreement made on the consular access between India and Pakistan does not mention anything about the restrictions on the rights mentioned under Article 36 of VCCR. It was seen that Pakistan had not informed Jadhav about the rights mentioned under Article 36 of VCCR. They failed to communicate the arrest and detention of Jadhav to India which goes against the rules mentioned under the same.
The court held that the Indian consular officers have to be allowed to get access to Jadhav to arrange his legal representation. ICJ contented that the “appropriate remedy will be an effective review and reconsideration of his conviction and sentencing done by the Pakistani military court. The ICJ has provided a means to rectify the breach of obligation on part of Pakistan due to the respect for the principle of sovereignty. This leaves the fate of Jadhav in the hands of the Supreme Court of Pakistan which was advised to review and reconsider the earlier approach of the court. The court referred to the case, Rashid v. Pakistan, where it was held that “there is a legal mandate to interfere with the decisions made in the military court in cases of bad evidence and malice of fact and law”.
The Legal Framework
The VCCR is an international treaty that defined the framework for consular relations among sovereign states. Article 36 of VCCR and Article I of the Option Protocol were discussed in this particular case focusing on the disputes between the nations. Article 36 focuses on the communication and contact with the nationals of the sending state where the consular officers are free to communicate with the nationals along with the right to access them. The right to inform the particular state regarding the arrest of a national and the right to visit a national are discussed under the legal provision.
The limitation of the jurisdiction to the interpretation or application of the Vienna Convention is also mentioned in Article I. In this case, it can be clearly seen that Pakistan has violated the right provided under Article 36 of VCCR where Jadhav was not provided with the necessary remedy or requirements as per the legal provisions. Hence the review and reconsideration of the arrest and detention were stated as the appropriate remedy in this particular case as the violation of such a right is immoral and illegal.
If this case is analyzed, it can be seen that the need for appropriate procedure and the protection of rights has an integral role in maintaining the legal system where the parties have to be treated based on the rules and regulations. After the ICJ verdict was given, it was mentioned publically that Jadhav had been informed about the rights mentioned under Article 36 and that consular access will be granted as per the legal provisions mentioned under the legal framework. When rules are made for the proper functioning of a system, it is important to ensure the same to all for the prevention of unnecessary disputes between countries. The intention of the countries involved in a particular dispute can be determined based on the nature of the actions which tells about the need to have proper regulatory systems for better functioning.
In most disputes between countries, there will be an ulterior motive for one of the parties which will be focused on various aspects based on the facts and circumstances of the case. The nature of the whole functioning has to be carried out in an appropriate manner to ensure justice in giving judgments. In this particular case, Jadhav was denied the rights which should have been given to those involved in such instances and there was no justified reason for this denial. This failure on the part of Pakistan was clearly pointed out by the ICJ through the landmark judgment where the interpretation of the legal provisions and the actions of the parties were mentioned clearly without any other difficulties.
The countries have to function together for the smooth functioning of activities across the globe and it is required to resolve the issues between the countries to ensure the same. Fair trial is one of the most important aspects of the judicial system as it tells about the manner in which the lives of the people are considered in the legal system. The proper interpretation and right judgments will help in the better functioning of the legal system where the guilty can be punished and the innocent be saved.