NATIONAL UNIVERSITY OF ADVANCED

LEGAL STUDIES, KOCHI

INDIA V. PAKISTAN: KULBUSHAN

JADHAV
CASE ANALYSIS

RITHIKA RAICHAN
ROLL NO. 1484

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Introduction

The Kulbhushan Jadhav case – between India and Pakistan at the International Court of
Justice – will be decided today. India initiated proceedings before the ICJ on May 8, 2017
relating to the arrest, detention and sentencing to death of Jadhav.

While the facts are disputed, here are the basics: Pakistan alleges that Jadhav is a serving
Indian naval officer, who at the behest of the Indian authorities, was spying in Balochistan, an
area with an ongoing separatist movement. Subsequently, he was arrested on March 3, 2016
by the Pakistani authorities. India alleges on the other hand that Jadhav is a retired naval
officer with no involvement in espionage and was abducted from Iran where he was
conducting business.

After being tried for espionage by a Pakistani military court, Jadhav was found guilty and
sentenced to death on April 10, 2017. Due to multiple refusals by the Pakistani authorities to
grant consular access and the death penalty, India filed an application before the ICJ for
Provisional Measures. India argued that Article 36 of the Vienna Convention on Consular
Relations (VCCR) was violated, and that the jurisdiction of the ICJ arises from Article 1 of
the Optional Protocol concerning the Compulsory Settlement of Disputes (‘Optional
Protocol’).

After hearings on May 15, 2017, the ICJ issued a unanimous order in favour of India,
indicating provisional measures in its order of May 18, 2017. It would be wise to remember
that the indication of provisional measures was an interim step, without any impact on the
final resolution of the case. Also, the court now has to determine whether it has jurisdiction,
and if so, then it will address the merits of the case.

The parties filed submissions before the ICJ over the course of 2017 and 2018 – India’s
Memorial and Reply, and Pakistan’s Counter-memorial and Rejoinder – and the court held
hearings on the matter in February 2019.
Jurisdiction, Merits, Remedies

The first issue up for determination is that of jurisdiction, which has been invoked based on
Article 1 of the Optional Protocol,as a result of a “dispute arising out of the interpretation or
application of the Convention”. The dispute in question relates to Article 36 of the VCCR.
Pakistan argues however that there is no dispute per the VCCR, and that instead the
compulsory jurisdiction of the ICJ based on Article 36 (2) of the Statute of the ICJ is at issue
here. The argument is made that such compulsory jurisdiction is excluded for cases relating
to national security, based on a declaration entered by Pakistan on March 29, 2017. Another
argument brought up against the court exercising jurisdiction is the 2008 bilateral agreement
between India and Pakistan on consular relations, which is argued excludes cases on “…
political or security grounds…” and thereby modifies the VCCR as between India and
Pakistan.

On this point, the ICJ will need to determine whether a subsequent agreement can restrict the
scope of the obligations of the VCCR, to which both parties are signatories. An analysis of
the 2008 agreement as well as Article 73(2) of the VCCR, which relates to other agreements
“…confirming, supplementing, extending or amplifying…” the provisions of the VCCR, will
be crucial.

If the ICJ finds it has jurisdiction in the case, it will then consider questions relating to
violation of the treaty in question. Assuming that the jurisdiction is restricted to the Optional
Protocol, it is questionable whether the court will examine the content of violations of Article
14 of the International Covenant on Civil and Political Rights (ICCPR) which India has
brought up. The court will limit itself to violations of Article 36 of the VCCR, which requires
that consular officers have access to those detained or arrested. The denial of access to Jadhav
and the inability to provide legal representation will be scrutinized as part of this substantive
violation. What will also come up however will be the scope of the obligations under Article
36 – and whether, as Pakistan argues, these can be restricted for those accused of terrorism.
While the Indian argument is that the consular obligations are linked to the right to a fair trial
under the ICCPR, it is unlikely that the court will address the death penalty imposition, or
whether the right to fair trial has been violated under the ICCPR as a result of a military court
trial.

The remedies sought by India are extensive, and include a suspension of the death sentence,
annulment of the military court decision or a declaration by the ICJ of the illegality of the
decision, and the release and safe passage of Jadhav back to India. Past jurisprudence of the
ICJ, such as in in the LaGrand case (Germany vs. US) and the Avena case (Mexico vs. US),
indicates the limitations of these arguments. The furthest the ICJ has gone is an order to
‘review and reconsider’ the decision by the state in question. How such a review is done is
for the state itself to determine. There are some constraints – that it must be “effective” and
include judicial review – but overall the ICJ will not step in to make a determination on
behalf of the parties.

The four-day public hearing of the Jadhav case in the International Court of Justice (ICJ), in
Peace Palace in The Hague, concluded on Thursday, 21 February. With court proceedings
adjourned sine die, the verdict is expected by the end of this summer. Senior counsel Harish
Salve primarily made the Indian case, while Queen’s Counsel Khawar Qureshi steered the
Pakistani ship. Before leaving India Mr. Salve when asked about his thoughts on the Jadhav
case stated, “Justice, he will get.” This piece argues why India’s position is not only
immediately important for its former naval officer but also for the civilized world, its
populace and human rights. It looks into the essentials of the Vienna Convention on Consular
Relations (VCCR), 1963, the relevant judicial precedents, the principles of natural justice, the
applicable parts of the International Covenant on Civil and Political Rights (ICCPR) and the
doctrine of due process. It further attempts to deconstruct the argument that whether cases of
espionage and terrorism form an exception to the Vienna Convention of 1963, or not.

The facts of the case are well known. India maintains that Pakistani authorities arrested,
detained, tried and sentenced to death on 10 April 2017 an Indian national, Mr. Kulbhushan
Sudhir Jadhav. Initially, on 25 March 2016 India was informed about the alleged arrest of
Jadhav and that very day India sought consular access. On 30 March 2016, India sent a
reminder reiterating its request for consular access. In addition, thirteen more reminders were
sent. India has maintained that Jadhav is its national and a former naval officer who was
carrying out his business in Iran. While he was in Iran, he was abducted, brought to Pakistan,
and tried on fabricated charges of espionage and terrorism in the Pakistani Military Court.
Meanwhile, the facts according to Pakistan are somewhat different. It alleges that Kulbushan
Jadhav is a spy, a Research and Analysis Wing (RAW) agent, working in Baluchistan, on
“India’s official policy of terror.” Pakistan cites grounds of national security to support its
claim.

Today, it gives an opportunity to the principal judicial organ of the United Nations, to once
again establish individual freedom in midst of piercing state rivalries. It allows the court to
stand with its verdict in the LaGrand case (Germany v. USA), ICJ 2001 and defend the rights
of a detainee. It is in this case that ICJ held that ‘rights under the Vienna Convention cannot
be denied at the cost of domestic legal procedures of a particular nation.’ Moreover, the first
principle of natural justice, “audi alteram partem”, a Latin phrase that translates into, ‘to
listen to the other side’, has been brazenly ignored. In principle, it is the primary violation
committed, by Pakistan. By denying Jadhav, a fair plea, through the counsel of his choice, the
legitimacy of the Pakistani Military Court’s decision is questionable. What is more, there was
a twenty-two day delay between the actual date of Jadhav's arrest and the communication of
this fact to the Indian consulate. Article(s) 36 (1) [a, b] of VCCR, 1963, which have been
outrageously violated, read thus,

“With a view to facilitating the exercise of consular functions relating to nationals of the
sending State: (a) consular officers shall be free to communicate with nationals of the
sending State and to have access to them. Nationals of the sending State shall have the same
freedom with respect to communication with and access to consular officers of the sending
State; (b) if he so requests, the competent authorities of the receiving State shall, without
delay (emphasis added), inform the consular post of the sending State if, within its consular
district, a national of that State is arrested or committed to prison or to custody pending trial
or is detained in any other manner. Any communication addressed to the consular post by the
person arrested, in prison, custody or detention shall be forwarded by the said authorities
without delay. The said authorities shall inform the person concerned without delay
(emphasis added) of his rights under this subparagraph;”

Apart from the delay, Indian consular officers weren’t even given an access to Jadhav. He
wasn’t told by the authorities of his rights under law to meet his consular officers. Not only
that, the denial of Article 36 (1) [c], which guarantees the consular officers of the sending
state (i.e. India) the right to visit, converse and correspond with its national, exhibits how
Indian rights under public international law have been infracted. The calling of such
violations by India in the ICJ as “egregious” is only fair.

On the other hand, Pakistan claims that cases of espionage form an exception to the treaty. In
support of this, it gives the opinion of Luke Lee and John Quigley given in the book Consular
Law and Relations, 1961. In a similar vein, it quotes Biswanath Sen (a former Legal Adviser
to the MEA, Govt. of India), "A frequent exception to the consular rights to protect nationals
and visit them in prison is the case of persons who are held on charge of espionage as
evidenced by the practice of states." The above exception is sought, on grounds of customary
international law.

In this case, this is the chief point of contention. The most plausible way to look at this
variance in interpretation of state practice and law is to use the Vienna Convention on Law of
Treaties (VCLT) 1969, wherein under Article 31 provides for general rule of interpretation.
Article 31(1) provides that a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of its
object and purpose. Moreover, Article 31(2) provides that the context for the purpose of the
interpretation of a treaty shall comprise, in addition to the text, including its preamble and
annexes. On applying these provisions and giving the VCCR, 1963 a ‘collective’ reading, it is
demonstrated beyond reasonable doubt, that there can be no exception to the norms
established by the said treaty. Furthermore, as argued by India in ICJ, the doctrine of due
process, which ordinarily means that no individual shall be deprived of life, liberty or
property without fair procedure and the promise of legality, would stand negated provided the
Pakistani interpretation is given credence.

It raises questions about the fairness of the verdict and the competency of the court.
Prejudiced treatment towards any individual is what human rights law aims to obstruct.  In
addition, at the material time of the instances of this case both India and Pakistan had ratified
ICCPR. Article 14 (1) of this treaty reads, “All persons shall be equal before the courts and
tribunals. In the determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law.” It is doubtful, whether
the Jadhav trial was fair and in public. The provision will stand vilified provided the court
adjudicates in favour of Pakistan. Couched in support of an extracted confession, the entire
case of Pakistan against Jadhav is weak. Barring the self-incriminating statement, Pakistan, as
stated by Mr. Salve, “has no scintilla of evidence against Mr. Jadhav.”

In conclusion, while arguing it out for the Pakistani government, counsel Qureshi laid stress
on media articles, strong language and nursery rhymes, Mr. Salve based his arguments on
incisive jurisprudential analysis. His submissions were an advocacy for human rights and
individual freedoms. It was an attempt to uphold the rights of person(s) who are trapped and
are suffering in a milieu of geo-political contestations. Basing his opinion on the evolving
jurisprudence of Article 36 of VCCR, 1963, it is not an exaggeration to state that in this case,
as far as law is concerned India is in the driving seat. Meanwhile, as the judges draft their
judgment, it is crucial for both nations to give that chance to the court. Any incident to the
contrary would be a poor commentary on state behavior. The interim period demands
extreme security for the life of Kulbushan Jadhav. It needs to be highlighted that the bilateral
context and subtext in which this case operates will have its own ramifications.

The findings and orders of the ICJ, can be divided into three sections as follows.

1. Pakistan fails in challenging jurisdiction and admissibility

At the outset, Pakistan had said that the ICJ had no jurisdiction over the case. Moreover, it
claimed that India’s application could not admitted and heard, because it had not approached
the ICJ with “clean hands”. This is a legal doctrine which, in this case, implied that India’s
own wrongful conduct — by not providing due assistance in investigation — had disabled it
from pursuing a legal remedy.

Both challenges were categorically rejected by the ICJ. The case was held admissible, and the
ICJ confirmed its jurisdiction over the case by virtue of the Optional Protocol to the VCCR,
to which both states are signatories.

This is a legal doctrine which, in this case, implied that India’s own wrongful conduct — by
not providing due assistance in investigation — had disabled it from pursuing a legal remedy.

2. India’s overwhelming win on merits

The VCCR, the treaty subject to dispute here, was adopted with the aim to facilitate consular
functions relating to nationals of respective countries. Article 36 of the VCCR defines the
rights of consular officials when a national of their country is in prison, custody or detention.
It includes:

 Informing competent authorities of arrest without “undue delay”,

 Guaranteeing the foreign national’s freedom to communicate with and access his
consulate, and

 The right of consular officials to visit him and arrange for his legal representation.

The ICJ held that Pakistan was in clear violation of the rights and obligations described
above. Pakistan, firstly, did not inform Jadhav of his rights to consular access under the
VCCR. Secondly, the 22-day delay in informing India of Jadhav’s arrest was regarded as
“undue delay,” given that his Indian nationality was established by Pakistan early on. Thirdly,
despite repeated requests from India, it wrongfully denied consular access and even went so
far as to condition it on India’s assistance on Jadhav’s investigation. Such a pre-condition is
not only legally tenable, but also appears to be designed to coerce India to indirectly accept
Jadhav’s “guilt” by agreeing to assist Pakistan with the investigation.

The ICJ held that Pakistan was in clear violation of the rights and obligations.

Pakistan had challenged the applicability of the VCCR to this case by arguing that, firstly, it
does not apply to suspected cases of espionage and terrorism, and secondly, a 2008 bilateral
agreement between the two countries modified the application of VCCR to sensitive (political
and security) cases. The ICJ rejected these, because no such exception or modification is
envisaged under the VCCR. It further emphasised that recognising espionage or terrorism as
an exception will make it convenient for countries to forego their obligations under the
VCCR in controversial cases.

3. Remedies may not give India what it wants

The ICJ declared that India is entitled to “restitutio in integrum,” an action which aims to
restore a complaining party to the position it would have been in, had no right been violated.
By way of remedy, the court ordered that Pakistan should give “effective review and
reconsideration” to Jadhav’s conviction and sentence by “means of its own choosing.” In this
regard, Pakistan must recognise that the right to a fair trial is “absolute” and “cannot be taken
away” in this case. Additionally, it needs to give consular access to Jadhav, and fully examine
the consequences of the Article 36 violation and any prejudice that has arisen due to it.
However, none of the other remedies sought by India were allowed by the court. The ICJ did
not annul the death sentence handed out by Pakistan’s military court, and did not order the
release of Jadhav to India. This is understandable; given that the ICJ does not function as a
criminal appellate court over domestic cases, granting these remedies would have been
entirely outside the ICJ’s jurisdiction.

Previous Article 36 cases: The problem of implementation

In light of the remedy offered by the court, it is useful to examine what were the
implementation outcomes for similar cases before the ICJ. The findings and remedies in the
Jadhav case with reference to Article 36 VCCR are along the same lines of the LaGrand case
(Germany v. United States) and the Avena case (Mexico v. United States). In both the
verdicts, the ICJ found that the US was in breach of its obligations under Article 36 VCCR,
and directed it to give “effective review and reconsideration” to sentences and convictions of
foreign nationals.

Apart from the directive that Pakistan should ensure a fair trial, there is little control that
India can exercise over the judicial procedure it will choose to adopt.

Unfortunately, research papers (here and here) point out that the implementation of the
decisions on ground was extremely poor and left much to be desired. Many US decisions
opined that Article 36 rights could not be enforced in domestic courts and that no remedy
under domestic law could be awarded, even if a violation was found. Several domestic courts
carried out a so-called “review and reconsideration” without even mentioning or considering
the findings of the LaGrand and the Avena  case. Moreover, domestic courts decided that
violation of Article 36 does not erase any past procedural antecedents; for instance, the
accused foreign national cannot discard any statements or confessions made during the period
of an Article 36 violation. If this is the case, Jadhav’s multiple videotaped confessions — the
authenticity of which has been vociferously contested by India — will continue to be
considered as a damning evidence in Pakistan’s courts.

In view of above, it remains to be seen how far and to what extent Pakistan’s courts will give
effective review and reconsideration to the decision. Apart from the directive that Pakistan
should ensure a fair trial, there is little control that India can exercise over the judicial
procedure it will choose to adopt. If the case goes to the civilian courts, there is a glimmer of
hope. However, if it continues to remain with the military court, we may not see a fair trial.
Much depends on Pakistan’s openness towards the rules, principles and decisions tendered
under public international law. This notion offers no reassurance to India, since Pakistan’s
track record with obeying and complying with international legal obligations has never been
up to the mark.

Remedies beyond ICJ’s remedy

At this stage, once India is given consular access, it can seek to equip Jadhav with the best
possible legal defense under Pakistan’s laws. Apart from this, India has a few options for
recourse should Pakistan’s actions be unsatisfactory. Though ICJ decisions are final and
without appeal, India can approach the court again to:

 Interpret the judgment, should India and Pakistan differ on its meaning and scope,
and

 To revise it, if new and crucial facts are discovered by India.

While these are not appeals, they provide India a supplementary avenue for relief on certain
qualified grounds.

If Pakistan is unwilling to execute any of the ICJ’s orders, India can approach the United

Nations Security Council, which is empowered to take binding measures to give effect to an
ICJ judgment. However, this course of action depends on the concurrence of the P5 for
decision-making, which includes Pakistan’s all-weather friend China. On its own level, India
could suspend diplomatic relations, retaliate through sanctions, and push for public censure
against Pakistan’s actions at the international stage. These tools at India’s disposal must be
used cautiously, so as to not create friction between the two nations.

On legal grounds, the Jadhav case is a resounding victory for India and provides clarity to a
country’s obligations under VCCR. However, the question of its implementation continues to
loom large given the outcomes in previous VCCR cases. The safety of Kulbhushan Jadhav
has been on the minds of the Indian public since the media was first seized of the matter.
Though India may be reluctant to do so, leveraging diplomatic negotiations along with the
“review and reconsideration” of Jadhav’s case, may yield a desirable solution to this ongoing
saga.
Conclusion

To conclude, the Court found that Pakistan is under an obligation to provide, by means of its
own choosing, effective review and reconsideration of the conviction and sentence of Mr.
Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set
forth in Article 36 of the Vienna Convention, taking account of paragraphs 139, 145 and 146
of the Court’s Judgment.

Finally, the Court recalls that it indicated a provisional measure directing Pakistan to take all
measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision
in the present proceedings. The Court considers that a continued stay of execution constitutes
an indispensable condition for the effective review and reconsideration of the conviction and
sentence of Mr. Jadhav.