Kulbhushan Jadhav Case: Round 1 at ICJ Goes to India, What’s Next?

Round one in Jadhav case goes to India but a lot more brainstorming would be needed before the final hearing.

The International Court of Justice (ICJ) has told Pakistan that it must “take all measures at its disposal” to ensure that Indian national Kulbhushan Jadhav, sentenced to death for spying and terrorism by a Pakistani military court, is not executed pending a final decision of the court.

The court also decided that till it has given its final decision, it shall remain seized of the matters which forms the subject matter of this order. The court also prima facie decided that it has jurisdiction to take up the case.

There are many positives in this order. It gives hope to Jadhav. The decision of the ICJ was unanimous. The question that everyone is now asking is: what next?

Also Read: Jadhav Case: MEA Bureaucrats Didn’t Want ICJ But Legal Opinion Won

Half the Battle Won

First and foremost, Pakistan will have to abide by the ICJ orders for provisional measures and implement the same. Pakistan will have to then inform the court of the measures that it has taken.

This is no doubt a great victory for India, but we cannot rejoice till the case is finally won. There is much more hard work to be done until the final hearing.

At the final hearing, the court will take into account submissions and counter-submissions, documents and other evidence, and the written arguments presented by each side.

Pakistan will also have the liberty to raise all objections, including that of jurisdiction. These findings are prima facie, and the court has left open issues for its further consideration at the final stage.

Also Read: Jadhav Case: Return to India Will Need More Than ICJ’s Verdict

The decision given in the present proceedings in no way prejudges the question of the jurisdiction of the court to deal with the merits of the case or any questions relating to the admissibility of the application or to the merits themselves. It leaves unaffected the right of the governments of India and Pakistan to submit arguments in respect of those questions.

Interim Order, International Court of Justice

Legal Relief that India is Fighting For

India vehemently contends that the sentence awarded by Pakistan was arrived at in brazen defiance of the Vienna Convention rights listed under Article 36 paragraph 1 (b).

The death sentence for Jadhav is also in violation of elementary human rights of an accused, as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights.

India has worked hard and won round one, as Pakistan has been directed to “take all measures at its disposal” to ensure that Jadhav is not executed pending a final decision of the court.

India has sought the following reliefs in its application filed before ICJ:

• Immediate suspension of the death sentence awarded to Jadhav.
• Declaring that the sentence of the military court is violative of international law and the provisions of the Vienna Convention.
• Restraining Pakistan from carrying out the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan.
• If Pakistan is unable to annul the decision, then the ICJ should declare the decision illegal, since it’s violative of international law and treaty rights, and restrain Pakistan from acting in violation of the Vienna Convention and international law and directing it to release Jadhav immediately.

Also Read: View From Pak: India’s Gamble in Kulbhushan Jadhav Case Pays Off

Stumbling Block of 2008 Deal

The ICJ held that the 2008 bilateral agreement between the parties on consular relations did not change the Tribunal’s conclusion on jurisdiction.

Justice Dalveer Bhandari, the Indian member of the ICJ panel of judges, in his separate declaration, analysed the role of the 2008 India-Pakistan Agreement on Consular Access and said that prima facie there was nothing to suggest that India and Pakistan, by entering into the 2008 Agreement, limited their obligations under the Vienna Convention.

Article 102 of the United Nations Charter was relied upon to establish this. The Article precludes invocation of treaties not registered with the United Nations, such as the 2008 Agreement. Article 73 of the Vienna Convention, which does not allow dilution of its provisions by means of subsequent treaties, was also cited.

One of Pakistan’s major arguments before the ICJ was related to the fact that consular access between India and Pakistan was governed exclusively by the 2008 agreement. Pakistan sought to justify refusing consular access under Clause 6 of the 2008 agreement, which provided that in the case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits.

Since Jadhav was alleged to be involved in espionage activities and his arrest was made on security grounds, Pakistan claimed it was justified in refusing consular access to India.

Bilateral Treaties Can’t Overrule Vienna Convention

The Vienna Convention creates specific rights in favour of states as well as states sending nationals about consular access – and creates corresponding obligations upon the receiving states that arrest, detain or try and sentence nationals of other member states.

Bilateral treaties which create obligations can only supplement the provisions of the Vienna Convention and cannot modify these rights and corresponding obligations which form the object and purpose of Article 36 of the Vienna Convention.

The Government of India claims that under Article 36 of the Vienna Convention, Pakistan was under an international legal obligation to India, a party to the Convention, to comply with the rights of consular access under sub-paragraphs (a) and (c) of paragraph 1 of Article 36.

Pakistan was also under an obligation under international law and the Vienna Convention to inform the Indian national of his rights under paragraph (b) of Article 36 (1).

Now that Jadhav is protected, the legal teams must get ready for the final hearing, which would entail much more hard work.

Also Read: Sarabjit Singh’s Sister On ‘Historic’ Kulbhushan Jadhav Verdict

(The author is a lawyer at Supreme Court of India. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)