WHO WON THE JADHAV CASE?

AN ANALYSIS OF THE ICJ VERDICT

ADNAN YOUSUF
Law student (4TH Year)
Jamia Millia Islamia
9205344694
Email: adnanyousufbhat@gmail.com

INTRODUCTION

After the judgment in Kulbhushan Jadhav’s case came out, both the Indian and Pakistani media
went into a frenzy. Commentators on both sides of the border claimed victory and jeered at each
other without so much as caring to study what the judgment actually said. Kulbhushan Jadhav’s
case has been one of the most hotly debated topics ever since his arrest in 2016. After Pakistan
refused access to Jadhav, India in a deft legal move approached the International Court of Justice
(ICJ).

This piece attempts to clarify the main points in the Judgment in order to clear the confusion
surrounding the verdict.

ISSUES BEFORE THE COURT

Broadly, there were three main issues before the ICJ. First, the court had to consider whether
“spies” are entitled to consular access under the Vienna Convention on Consular Relations,
1961 (Vienna Convention). Second, whether a bilateral agreement between India and Pakistan
signed in 2008 (Bilateral agreement) overrides obligations under the Vienna Convention. And
third, whether Pakistan had breached the Vienna Convention by denying consular access to
Jadhav.

DOES THE VIENNA CONVENTION APPLY TO CASES OF ESPIONAGE?

Pakistan argued that the Vienna Convention does not apply in cases of espionage given the
very nature of the offence. India on the other hand, maintained that article 36 of the VCCR does
not admit of any exceptions. In its judgment, the Court relied on customary rules of
interpretation to note that the object and purpose of the Vienna Convention is to develop friendly
relations among nations. When article 36 of the Vienna Convention is interpreted in good faith
and according to its ordinary meaning, it was clear that the Convention does not create any
exception for cases involving espionage. The Court emphasized that the kind of exception put
forth by Pakistan would run counter to the object of the Vienna Convention.
THE BILATERAL AGREEMENT OF 2008

Pakistan relied on a bilateral agreement signed between the two countries in 2008. It argued
that the agreement overrides its obligations under the VCCR. Under the agreement, each side
has the right to “examine on merits” all such cases where an arrest is made on political or
security grounds. India argued that its claims are based solely on the VCCR and that the
existence of a bilateral agreement is irrelevant in this case.

The Court agreeing with India’s assertions held that the agreement did not intend to restrict any
of the rights set out in the VCCR. The court noted that had the parties intended to do so, it
would have been unequivocally reflected in the agreement. The Court said that such bilateral
agreements, although permissible, may only “confirm, supplement, extend” the provisions of the
VCCR, but cannot dilute or undermine them. The Court, therefore, dismissed Pakistan’s
contention regarding the applicability of the 2008 agreement and held that the VCCR was
applicable in the present case.

VIOLATION OF ARTICLE 36 OF THE VCCR

Next, the Court examined whether Pakistan’s conduct had breached its obligations under the
VCCR. Specifically by (i) not informing Jadhav of his rights under the VCCR (ii) by not informing
India without delay of Jadhav’s detention and finally, (iii) by denying Indian consular officials
access to Jadhav.

Article 36 (1) (b) of the VCCR states that foreign nationals in custody must be informed of their
rights under the VCCR. The Court rightly inferred that Pakistan did not inform Jadhav of his
rights and as a result, breached its obligations under the VCCR. Moreover, since Pakistan only
informed India of Jadhav’s detention three weeks after he had been arrested, the Court held
Pakistan in breach of its obligation to inform the sending state ( India in this case) “without
delay”.

Further, Article 36 (1) (c) provides that consular officials have a right of access to the detained
individual and also the right to arrange for his legal representation. The ICJ accepted India’s
submissions on this point and held that Pakistan acted in breach of article 36 (1) (c) by denying
Indian consular officials access to Jadhav

REMEDIES PROVIDED BY THE COURT

India sought a number of reliefs from the Court. Many of these reliefs were outside the Court's
jurisdiction and the Court rejected India’s contentions in this regard. This is where the Court
gave Pakistan the opportunity to salvage something and claim victory since the reliefs sought by
India were not accepted. India had asked the court to declare that Pakistan acted in breach of
the Vienna Convention and that Jadhav’s trial was contrary to basic human rights. It also sought
an annulment of the military court’s decision and asked the court to direct Pakistan to release
Jadhav.

Pakistan argued that the appropriate remedy in this case would be review and reconsideration
which the Court accepted. The Court directed Pakistan to inform Jadhav of his rights and allow
Indian officials access to him. It must, however, be noted that the choice of means for effective
review have been left to Pakistan. Pakistan announced that it will comply with the decision and
grant Jadhav consular access. Be that as it may, the prospects of Jadhav’s release are still
bleak and only diplomatic overtures may work since the ICJ verdict is final and without appeal.