INTERNATIONAL RELATIONS

RELEVANCE OF INTERNATIONAL LAW WITH SPECIAL REFERENCE

TO KULBHUSHAN JADAV CASE
I N T E R NAT I O NAL R E LAT I O N S

INDEX

INTRODUCTION – INTERNATIONAL LAW...............................................................................................1

HISTORICAL OVERVIEW OF INTERNATIONAL LAW............................................................................3

INTERNATIONAL LAW IN THE PRESENT WORLD COMMUNITY.......................................................4

RELEVANCE AND ROLE OF INTERNATIONAL LAW............................................................................5

KULBUSHAN JADHAV CASE & RELEVANCE OF INTERNATIONAL LAW........................................8

INTERNATIONAL COURT OF JUSTICE..................................................................................................8

FACTS OF THE KULBUSHAN JADHAV CASE ....................................................................................10

VERDICT OF THE INTERNATIONAL COURT OF JUSTICE IN KULBHUSHAN JADHAV CASE.12

IMPACT OF THE KULBHUSHAN JADHAV JUDGEMENT IN INTERNATIONAL LAWS ..............14

CONCLUSION................................................................................................................................................16
 INTRODUCTION – INTERNATIONAL LAW

International law is the set of rules generally regarded and accepted as binding in relations between states and
nations. It serves as a framework for the practice of stable and organized international relations. International
law differs from national legal systems in that it primarily concerns nations rather than private citizens.
National law may become international law when treaties delegate national jurisdiction to supranational
tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as
the Geneva Conventions may require national law to conform.

International law is consent-based governance, a state member of the international community is not obliged
to abide by international law unless it has expressly consented to a particular course of conduct. International
Law has no defined area or governing body but instead refers to the many and various laws, rules, and
customs that govern, impact, and deal with the legal interactions between different nations, their
governments, businesses, and organizations, including their rights and responsibilities in these dealings.

International relations today have become truly international and characterized by a high degree of
interaction and interdependence. Clearly, the international system has changed in innumerable ways. New
actors in international scenarios emerged, which plays very important roles like the UN, and this evolution
in the international sphere is continuous and constantly evolving. International society is primarily
composed of states, international organizations and non-state actors such as armed groups or business
enterprises and individuals. An essential element of the definition of international law is the law that is made
by states collectively. An individual entity cant or no single state acting unilaterally can make international
law; neither can a collection of corporations or individuals. International organizations, individuals, and
corporations can all become subjects of international law and have limited powers and international
personalities recognized under international law. They can also help clarify international law by interpreting
it or appearing in international courts, but they cannot make international law. This means that there are no
predetermined limits for international law in regulation.

State responsibility is a fundamental principle of international law, arising out of the nature of the
international legal system and the doctrines of state sovereignty and equality of states. It provides that
international responsibility is established between the two whenever one state commits an internationally
unlawful act against another state. A breach of an international obligation gives rise to a requirement for
reparation. Introduction State responsibility compromises the main institution of the system of public
international law. It deals with a significant number of issues. Firstly, it describes the circumstances in which
a state will be held to have breached its international obligations and precise justifications and defences a
state may depend on to escape from the responsibility for an otherwise wrongful act. Secondly, it wraps the
consequences of the breach of an international obligation, including full reparation as central obligations and
the obligation to stop

the continuing wrongful acts for safety and security reasons. Finally, it deals with the states' responsibility for
the unlawful act, the measures to deal with such situations, and the actions taken as a countermeasure. It
implements the responsibility of the wrongdoing states.

The critical point of reference in relation to the law of state responsibility is the Articles on the
Responsibility of States for Internationally Wrongful Acts (the ILC Articles), which are adopted by the
International Law Commission (ILC) in 2001, which forms the law through the codes and articles for the
protection of rights of the states against the wrongdoing states. The literature before the formations of state
responsibility articles also have great importance because these articles do not classify the state obligations,
and the concept of state crimes are not included in the final version. In order to consider these main
conditions, old literature has been taken into account as a primary reference till now. This discussion will
critically analyze the responsibility of states against the other state who commits the crime under the
international legal system through various concepts like law of high seas, diplomatic immunity, case studies.

International law is mainly based on two main principles, which are:

1. Jus Gentium : These are those set of rules that do not form part of a legal code or a statute but are those
portions of law mutually governing the relationship between the two nations.

2. Jus Inter Gentes: These are those treaties and agreements that are mutually accepted by both countries.

There are two branches / types of international law:-

• PUBLIC INTERNATIONAL LAW

Public international law mainly regulates the relationship between the nations and people whose
relationship may be affected by a particular international law, since they feel that they are bound to
follow certain legal codes and customs.

Public International law is regulated by:

o Customs that are included as state practise and opinion Juris.

o Treaties
o Globally accepted Norms.
• PRIVATE INTERNATIONAL LAW

The main of this law is to prevent private conflicts between individuals. Its main aim is to resolve
dispute in the domestic municipal body which involves an issue beyond its domestic jurisdiction.
Corporations in particular are commonly involved in private international law disputes because they
frequently transfer their capital and supplies across international borders. The more business that is
 carried out between nations, the more likely a dispute will arise.

HISTORICAL OVERVIEW OF INTERNATIONAL LAW

The origins of current international law can be traced back over 400 years, although the fundamental
conceptions of international law can be traced back thousands of years. A solemn pact was formed in 2100
BC between the rulers of Lagash and Umma, a city-state in Mesopotamia, according to historians. This
contract was discovered carved on a stone, and it dealt with the establishing of a fixed boundary that both
sides had to maintain. The next significant international treaty was signed over 1,000 years later between
Egypt's Rameses II and the Hittite King for the creation of eternal peace and fraternity.

The evolution of western culture and political organisation laid the groundwork for international law (or the
law of nations) as we know it today. The Treaty of Westphalia establishes the structure and order of Public
International Law, allowing it to evolve in light of modern society. The early thinkers' beliefs were based on
ideas circling around natural Law. Their theories and philosophies reflected the synthesis of Christian themes
with Natural Law in St. Thomas Aquinas' philosophy.

To deal with difficulties that crossed international borders, two types of international law were formed in the
Middle Ages: Lex Mercatoria (Law Merchant) and Maritime Customary Law. With the rebirth of trade in the
10th century, merchants began to travel across Europe, selling, buying, and placing orders for a variety of
items. These business operations necessitated the creation of a unified legal framework.

Maine, a British historical lawyer, wrote The Evolution of Modern International Law. The emergence of
separate, sovereign, and competing states marked the start of what we now call international law. With the
expansion of European empires, international law became spatially internationalised. It became less global in
conception and more a reflection of European values, both philosophically and practically.

Hugo Grotius, a Dutch scholar born in 1583, has been dubbed the "Father of International Law." His treatise
Deiiii Jure Belli ac Pacis is considered the most thorough and systematic work on pfdsivist international law.
It is a substantial treatise that devotes far more attention to the explanation of private law concepts than
appears acceptable now.The acceptance of the law of nature as an independent source of the rule of law of
countries aside from customs was a major idea in Grotius' work. His work was frequently cited as a source
of authority and reference in court rulings, textbooks, and later literature on standing.

When we examine the history of international law, we can see that the majority of its development occurred
in the nineteenth century, owing to the expansion of powerful states throughout Europe. With increased
technological advancement and the formation of new warfare methods, it became necessary to control these
states within a legal framework, and as a result, in 1863, the ‘International Committee of the Red Cross' was
founded, which assisted in the promotion of a series of Geneva Conventions, which began in 1864 and led to
the humanisation of conflict.

In furthermore, the Hague Conferences in 1899 and 1907 aided in the establishment of a permanent court of
arbitration that dealt with regulations concerning the humane treatment of captives and the supervision of
combat. Numerous further conventions and congresses followed, resulting in the expansion of international
law. The creation of the law of war and international entities that arbitrate international disputes occurred as
a result of the preceding activities. Moreover, as a result of World War I, a permanent court of International
Justice was founded in 1921, which was superseded by the International Court of Justice in 1946. The
International Court of Justice (ICJ) was also founded by the United Nations and led to the expansion of the
scope of international law to include various other aspects International Crime, Environment law, Nuclear
law etc.

The International Court of Justice was established as a judicial body to hear disputes between states, and it is
made up of 15 judges who are chosen for a nine-year term. The judges are mostly elected by the United
Nations General Assembly and Security Council based on nominations presented to the UN Secretary
General.

INTERNATIONAL LAW IN THE PRESENT WORLD COMMUNITY

One of the main important question in the present world regarding the international law is its applicability in
the global order. Each side to an international dispute will doubtless claim legal justification for its actions
and within the international system there is no independent institution able to determine the issue and give a
final decision. International law is very different from regional laws and national laws and hence the
chracteristics of domestic laws is mostly absent in International laws, international law does not have the
characteristics like a legislate or law making body, law implementing body, judicial systems.etc like the
domestic laws.

International law does not have a legislature, judiciary and executive, therefore it is a tough task to ensure a
legal order using these laws. General Assembly of the United Nations which is properly believed as a main
souce of international law and international relations in the contemporary world community,comprising
delegates from all the member states exists, but its resolutions are not legally binding save for certain of the
organs of the United Nations for certain purpose. The International Court of Justice does exist at The Hague
but it can only decide cases when both sides agree and it cannot ensure that its decisions are complied with.
Like General Assembly and the International Court of Justice, The Security Council of the United Nations,
which was intended to have such a executive role in a sense, has at times been effectively constrained by the
veto power of the five permanent members.

Even though there is a absence of definite organs to implement, check and create law, international law have
its own relevance in contemporary world as the relations of countries develop. 20th century can be considered
as the the period of development in international relationsin which the modern industrialisation,
modernisation and liberalisation acted as a catalyst in growth.The relevance of international law can be seen
in the daily

newspaper, radio television, and an individual will be confronted with events that have significance in
international law. United Nations’ resolutions and peacekeeping forces; the claims for independence by
groups around the world; conferences on the environment and on trade; the changing political and social
situation in Africa, Asia and Europe; allegations of human rights abuses in many States; attempts to control
terrorism and drugs; debates concerning the future of the United Nations; and the increasing impact of
European laws on the member States of the European Union, are but a few examples. Overall, there is an
increased interdependence in the international community.

International events and the interdependence of the countries that international law addresses by analysing
the legal principles arising from interactions between States, actions by States and certain actions by
individuals, corporations, international organisations and other actors on the international plane.
International law has effects on, and is affected by, international relations, political thought and
communications, as well as by the awareness of women and men in every State that they are among those
addressed by the United Nations Charter as being ‘We, the Peoples of the United Nations’.

International law is really a description of an entire legal system: the international legal system. It is an
international legal system by which legal rules are created in order to structure and organise societies and
relationships. It acknowledges the influence of political, economic, social and cultural processes upon the
development of legal rules. Within this international legal system are, for example, constitutional laws,
property laws, criminal laws and laws about obligations, although these terms are not normally used. It is this
extensive array of laws within the international legal system that is included under the ‘international law’.

RELEVANCE AND ROLE OF INTERNATIONAL LAW

International law is of a different nature to national law in its sources, institutions and development,
international law is ‘law’ in that it seeks to ensure that there is order and structure in the international
community. This order enables the members of the international community to interact together with a
reasonable degree of confidence and ensures that changes in rules generally occur by a coherent and
consistent process. States do still generally comply with international law. As Henkin and Scott suggest,
international law can and does modify behaviour, particularly of States. Just as in national law, political
considerations can also determine much of the content of international law. Even economically powerful
States, such as the United States of America, have been affected by the pressure of international law and
international relations to be pulled towards compliance with international law, such as with their unlawful
detainment of people at Guantanamo Bay.

Tom Bingham (who was the most senior judge in the UK at the time of the Iraq war), notes the broad impact
today across the international and national communities of an armed conflict that is contrary to international
law and he stresses the importance of a rule of law in the international legal system. The core elements of an

international rule of law would be essentially the same as for a national rule of law, being legal order and
stability, equality of application of the law, protection of human rights and settlement of disputes before an
independent legal body. This is important in terms of international peace and security, transparency, good
governance, justice and accountability in the international system.

The first role of international law is to arrange for the cooperation most actors wish to have most of the time.
Its imposible to imagine a world with global trade grinding to a halt, diplomats unable to represent their
governments to other states, radio and television signals jamming each other across borders, students unable
to study or go backpacking in other countries because they cannot acquire visas, health and economic
development programs in poor countries screeching to a halt because the UN ceases to exist, or the
degradation of the oceans, outer space, and Antarctica because these common heritage spaces no longer
enjoy the protection of treaties.

Modern international life, today with its pervasive and predicable patterns of cooperation, would be
impossible without the rules and understandings bound up in international law. Without rules to develop and
sustain multiple kinds of positive interactions, international relations would be little more than a set of states
co existing in an atmosphere of constant worry over security threats. The “law of nations,” as these rules are
sometimes called, is at least a cornerstone, if not the foundation, of modern international relations.

Another essential role is that international law identifies the membership of an international society of
sovereign states .Under law, states are granted formal recognition as members of the international society,
and given rights and duties within this society. Enjoying membership, states can engage other states over
competitive as well as mutual interests through diplomacy and at the forums of numerous organizations and
international conferences. Additionally, there are nonstate actors as well participating in international society,
such as the United Nations, revolutionary movements, and even individuals in some circumstances.
Non-state actors have a lesser degree of legal standing reflecting the continued primacy of the state over
other actors sharing international society.

The International law is also a mechanism to regulate the competing interests of the various actors and to
carry their agreements into the future. Any place where people intermingle in patterns of cooperation or
conflict can be called a “political space”. The world political space contains nearly two hundred states with
several other kinds of actors, with most of these wanting to believe that what has been arranged today will
still be in place tomorrow. When a challenge to the status quo does occur between those wanting change and
those who do not, international law helps constrain the ensuing political struggle by providing diplomatic
and judicial options such as arbitration.

States mostly accept international society, underpinned by a legal system, because they see the possibility of
protecting what they have or making some gains with minimum costs. The law can be a means to a political.
This role of international law has been summed up in one sentence of Christopher C. Joyner’s that
“International law codifies ongoing solutions for persistent problems”.

International law as well empowers weaker countries as they press for change against the will of the
powerful. In diplomatic conferences and international organizations, where strength is partly measured in
votes, small and medium-sized states have sometimes won the day. Superpowers on occasion have had to
bend their knees in a world conditioned by the existing law as well as by a majority of states pressing for
new law. This situation did not change when the United States held sway as alone superpower in the 1990s.
David J. Bederman put the matter poignantly when he said, “It is patently false to believe that one state even
a superpower can unilaterally captain the course of international law”.As international law channels and
controls the push and pull of politics, it can sometimes serve as an instrument to promote justice.

Decades ago, Gerard Mangone wrote, “The functions of international law, as in any system of law, are to
assist in the maintenance of order and in the administration of justice. Hedley Bull believed if an
international order were to endure, it not only needed the support of major powers, but this legal system
must also provide justice for the international society as a whole. Bull recognized this role of international
law concerning such matters as improving human rights and promoting economic development for the less
advantaged states. At the same time, Bull cautioned about going too far, too fast with “social engineering”
by means of law. Demands for radical change can be disruptive to an international order, he stated, since
international law has always depended on a large degree of consensus.

Finally, the most interesting and ambitious role of international law is the outlawry of war. Historically,
leaders regarded war as the ultima ratio Regis (or the ultimate means of a king), but in the twenthieth
century, a sea change occurred when war ceased being a legitimate option of foreign policy. Eliminating war
as a normal means of international politics were core elements of the League of Nations’ Covenant and the
UN’s Charter. Should war break out anyway, international law is sufficiently prepared so that if jus ad
bellum (law to begin war, but often understood as war for a just cause) is violated, jus in bello (law of war)
goes into effect. The intent of this momentous reform was to move political conflict into diplomatic and
judicial channels. Toward this end, international law offers many options for conflict resolution short of war.
Admittedly, however, international law has a more successful record regulating trade, international
electronic communications and airline travel, as well as many other subjects, than is the case when national
leaders perceive and react to security threats against their states
War laws and diplomatic ties were the earliest manifestations of international law. Rules governing
purchases, on the other hand, were more significant during the age of discovery. As a result of these
changes, it is clear that international law arose as a result of need. As international participation with other
parties grew, so did the reach of international law, and it can now be claimed that international law is the
most practical manner of controlling world order in the modern world.

The following are some of the most essential functions of international law:

o To keep the peace and security of the world.

o To ensure that fundamental freedoms and human rights are protected.

o To refrain from threatening or using force against a state's territorial integrity or political
independence. o To give people the right to self-determination.
o To achieve international cooperation in the resolution of international economic, social, cultural, and
humanitarian problems.
o To use peaceful measures to resolve international conflicts.

KULBUSHAN JADHAV CASE & RELEVANCE OF INTERNATIONAL

LAW

The Jadhav Case highlighted a few areas of international law that could navigate global relations and the
applicability of law on unprecedented levels, including jurisdictional issues, human rights preservation, and
critical and high-priority provisional measures, all of which challenged the global judicial system. This case
saw turns toward adjudication between never-ending disputes between India and Pakistan, in addition to
contributing to new dimensions of international litigation. In accordance with international law's jus cogens
standard, India gradually filed an application to commence procedures and preserve international ties, rather
than resorting to a violent approach of resolving conflicts through the use of force. Surprisingly, this case did
not just decide on international consular relations; it also decided on other important issues such as the
primacy of international treaty obligations over bilateral agreements, the interpretation of norms in a state of
conflict of laws, and so on, making the decision a landmark one.

“Injustice anywhere is a threat to justice everywhere,” Martin Luther King Jr. correctly notes. There has
always been an unpleasant struggle between law and morality, which has pulled justice apart throughout the
evolution of law. The similar discussion may be found in international law, as countries try to work out their
differences and sustain inter-relational cooperation. One person's freedom fighter could be another person's
terrorist. In the case of India v. Pakistan in the International court of justice, this impression was recently
observed (Jadhav case).
 INTERNATIONAL COURT OF JUSTICE

International Court of Justice (ICJ) is the principal judicial body of the United Nations (UN) to resolve
disputes at International level, though its origin predates the League of Nations. It was established in June
1945 by the Charter of the United Nations and began work in April 1946. It is the only organ, of the six
organs of the United Nations not located in the New York, United States of America. The seat of the Court is
at the Peace Palace in The Hague, Netherland. The role of the Court is to settle legal disputes submitted to it
by States and to give advisory opinions on the legal questions referred to it by authorised organs of the
United Nations and specialised agencies in accordance with international law.

Chapter XIV of the Charter of the United Nations deals with International Court of Justice under Articles 92
to 96. The Court is composed of 15 judges, who are elected for the terms of office of nine years by the
United nations General Assembly (GA) and the Security Council (SC). All the 15 Judges of the ICJ are
elected for a nine year term, and one third of the membership is newly elected at three year intervals. They
are permitted for re-election. The judges do not represent the governments of their home countries, and act
entirely as independent authorities. To be eligible, they must be sufficiently qualified to hold the highest
judicial office in their home country or must be a recognised authority on public international law. The ICJ
reaches decisions by majority vote, the President of the Court having the casting vote in the event of a tie.

Recourse to the ICJ is optional. Bothe parties subject themselves voluntarily to its jurisdiction. Thus any
contesting party that files an application to the ICJ acknowledges its readiness to comply with the Courts
decision on the matter under dispute. On the other hand, if one of the parties subsequently refuses to accept a
decision, the ICJ cannot enforce it against that countries will. Judicial execution would run counter not only
to the concept of the sovereignty of the states, but also to the experience which has thought that conflicts
between nations cannot be resolved by force, but only by establishing consensus.

The proceedings before the ICJ break down into a “written phase” during which the parties submit and
exchange the pleadings and an “oral phase” during which the agents and counsel of the parties appear before
the Court in public hearings. The proceedings of the Court takes place in English and French, and all the
written and oral submissions in one of those languages are invariably translated into other. After the oral
phase of the proceedings, the Court deliberates in camera. Its decision is then announces at a public session.
The decision is final, and has no right to appeal. In case of one of the parties fails to comply with the
decision of ICJ, the order is entitled to the matter to the Security Council of the United Nation. The ICJ
performs its duty as a plenary body, but may also form smaller specialized chambers if the parties so wish.

The statute of the ICJ regulates the functioning of the Court. All members of the UN are automatic parties to
the statute, but this does not automatically give ICJ jurisdiction over disputes involving them. The ICJ gets
jurisdiction only on the basis of consent of both parties.
India declared the matters over which it accepts the jurisdiction of the ICJ, in September 1974, which has
revoked and replaced the previous declaration made in September 1959.

Among the matters over which India does not accept ICJ jurisdiction are:

disputes with the government of any State which is or has been a Member of the Commonwealth of
Nations,

disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or
collective actions taken in self-defence….

The declaration, which includes other exceptions as well, has been ratified by Parliament.

ICJ’s judgments, where the Court is exercising contentious jurisdiction, are binding on the States that are
party to the case, in respect of the particular case being decided.10 (The ICJ may also render advisory
opinions under Article 96 of the UN Charter, but that is not relevant to the case of India v. Pakistan.)

Article 94(1) of the UN Charter states “[e]ach member of the United Nations undertakes to comply
with the decisions of the International Court in any case to which it is a party.”

Article 94(2) provides “[i]f any party to a case fails to perform the obligations incumbent upon it
under a judgment rendered by the Court, the other party may have recourse to the Security Council,
which may, if it deems necessary, make recommendations or decide upon measures to be taken to
give effect to the judgment.”

The ICJ can only be approached by member states of the UN as private individuals and entities are not
permitted to take up the matters at the level of ICJ. When a state may take up a matter at the ICJ, it can take
up a case of an individual person with respect to another state in concern. It is on the basis of this point that
India in 2017 up look the matter of Kulbhushan Jadhav (an Indian national, in custody of Pakistan, arrested
by Pakistan on 3rd March, 2016 in Mashkel area of Baluchistan on spying charges). Pakistan had arrested
Jadhav in their territory and asserted that Jadhav was sent by India's external intelligence agency (R&AW) to
create destruction of the China Pakistan Economic Corridor.

FACTS OF THE KULBUSHAN JADHAV CASE

On May 8, 2017, India filed a case before the ICJ against Pakistan for purported violations of Article 36 of
the VCCR. India alleged that Pakistan had illegally detained Jadhav, an Indian national. Jadhav was executed
by the military court in Pakistan and was sentenced to death on charges of espionage. India’s main claim was
with respect to Pakistan’s obligations under Article 36 of the VCCR. It submitted that pursuant to Article 36,
Jadhav had a right to be informed that he had a right to have Indian consular authorities notified “without
delay” of his detention at any time prior to his conviction by the military court.

The circumstances of the case, as presented by both the parties, are contradictory, thus adding to the
difficulty of the ICJ in deciding the case. For instance, even with respect to origin of dispute there was no
clarity. India claimed that Jadhav is a retired military officer and was conducting business activities at the
Iran-Pakistan border when he was kidnapped by Pakistan. Juxtaposed to this, Pakistan argued that Jadhav
was in possession of illegal passports that he was attempting to use to crossover into the Pakistani border.
Nonetheless, both India and Pakistan agreed that Jadhav was in Pakistan’s custody since March 3, 2016. The
Court chose to just look at facts that it considered were relevant and did not get into ascertaining all the
factual claims raised by the Parties.

On March 25, 2016, Pakistan approached the High Commissioner of India in Pakistan and presented a
confessional video of Jadhav in which he purportedly admitted of his engagement in acts of espionage and
that he was a part of India’s Research and Analysis Wing (‘RAW’). As agreed by both the parties, it was
through this video that Jadhav’s arrest was made public. The Court noted that the circumstance in which the
confession was recorded was unclear.

Between March 25, 2016 and October 2017, India made multiple requests to Pakistan for gaining consular
access to Jadhav. The court noted, “at least until 9 October 2017, India sent more than ten Notes Verbales in
which it identified Mr. Jadhav as its national and sought consular access to him.” In fact, in the annexure to
its counter memorial, Pakistan produced nineteen such requests made by India as evidence.

On July 22, 2016, Jadhav had purportedly made a confessional statement that was recorded before the
relevant magistrate. As Pakistan’s claims, the confessional statement was made in accordance with law,
which required the magistrate to ensure that the same was without any inducement or pressure. The trial
against Jadhav began in the military court on September 21, 2016 on the basis of a First Information Report
(‘FIR’) and a supplementary FIR filed subsequently. On January 2, 2017, Pakistan sent a letter to the United
Nations informing about Jadhav’s arrest and India’s intention of destabilising Pakistan.

On January 23, 2017, Pakistan had contacted Indian High Commissioner with a Request for Mutual Legal
Assistance (‘MLA Request’). Along with the MLA Request, Pakistan had sent a copy and relevant details of
the illegal passport that they procured from Jadhav. Through this, Pakistan had sought Indian government’s
help in procuring further evidence and material to aid in investigation of criminal charges against
Jadhav.Despite multiple requests, India did not substantively respond to Pakistan’s request. However, it is to
be noted that there was no Mutual Legal Assistance Treaty (‘MLAT’) in place between the parties. This fact
was not disputed by Pakistan. India, on the other hand, argued that it was Pakistan who had not responded to
India’s request for concluding a MLAT and in the absence of the same, it cannot now claim a right based on
its denial.
Pakistan had relied on United Nations Security Council (‘UNSC’) Resolution 1373 which was enacted in the
aftermath of terrorist attacks of 9/11, that mandates parties to assist in criminal investigations in cases of
terrorism even in the absence of bilateral treaties or MLATs. It submitted that India cannot claim to seek its
rights under international law after failing to fulfil its obligations under international law. Interestingly,
Pakistan noted that it was willing to grant consular access to Jadhav, however, in light of India’s failure in
adhering to the MLA Request, thereby breaching international obligations, it has had no option but to reject
India’s request of Jadhav’s consular access. On March 21, 2017, while responding to one of India’s request
for consular access, Pakistan noted that India’s request would be observed “in the light of Indian side’s
response to Pakistan’s request for assistance in investigation process and early dispensation of justice”. As a
reply to the same, on March 31, 2017, India noted that Jadhav’s consular access is important in order to fulfil
Pakistan’s request, as the same will help in understanding the circumstances and facts of his detention.

Even if one were to assume that India had, in fact, breached its international obligation, Pakistan’s reaction to
the whole situation in turn raises several pertinent questions of international law. Is a state’s obligation under
Article 36 of VCCR of an unqualified nature? Can a state use another state’s breach of international
obligations as justification for its own breach? Is providing mutual legal assistance (‘MLA’) in the absence
of any MLAT a sine qua non for gaining consular access? Even in the presence of a binding MLAT, can
consular access be refused just because a state has failed to aid in criminal investigations? It is pertinent to
note that as per the
law of State Responsibility for Internationally Wrongful Acts, the wrongfulness of an act of non-compliance
with an international obligation may only be precluded, inter alia, if the same is undertaken as a
countermeasure.

While Pakistan did not purport that its actions were adopted as a countermeasure, either a retorsion or a
reprisal, it posited that India’s non-compliance with the MLA Requests was one of the reasons for why it
considered that India had approached the Court with unclean hands. Hence, without arguing that its actions
were taken as countermeasures to ensure the concurrent compliance on India’s part for its own international
obligations, Pakistan would still be committing an internationally wrongful act by breaching its own treaty
obligations. Quite apart from these controversial issues, is the ICJ’s unwillingness to provide answers to
these questions. In its forty-four-page judgement, the Court barely even discussed the relationship between
one state’s obligation of providing MLA and other state obligation of providing consular access. Though the
Court noted that a state’s obligations under Article 36 VCCR are unconditional, it failed to provide a
rationale or address the link between MLAT requests and/or other international obligations and a state’s
obligation to provide consular access.

On April 10, 2017, a press release published by Pakistan’s Inter-Services Public Relations (‘ISPR’),
conveyed that Jadhav had been tried, convicted and has been sentenced to death by Pakistan’s military court.
On the very same day, India received another Note Verbale from Pakistan stating that India’s request for
consular access will be considered only if India responds to its MLA request. India replied on April 10, 2017
itself pointing that Pakistan’s act of giving such offers after conveying the news of Jadhav’s death sentence
“underlines the farcical nature of the proceedings and so-called trial by a Pakistan military court martial” and
if the same was executed, India “will regard it as a case of premeditated murder”.

VERDICT OF THE INTERNATIONAL COURT OF JUSTICE IN KULBHUSHAN

JADHAV CASE

The 11-judge bench of the International Court of Justice (ICJ) at The Hague unanimously agreed to accept
India's plea against Pakistan's death sentence to Kulbhushan Jadhav. The bench led by Judge Ronny
Abraham asked Pakistan not to execute Kulbhushan Jadhav till the final verdict in the case is not
pronounced by the International Court of Justice. There were several questions before the ICJ:

1. Whether ICJ have jurisdiction to decide the case?

2. Is the rights alleged by India are plausible?
3. Is there a link between the rights claimed and provisional measures requested?
4. Is there a risk of irreparable prejudice and urgency?

On first question of the case the ICJ began by considering if it has jurisdiction to hear the case. The Court
said that India sought its jurisdiction under Article 1 of the Optional Protocol of the Vienna Convention
under which the Court has jurisdiction in “disputes arising out of the interpretation or application of the
Vienna Convention”. The Court said that both parties, India and Pakistan, have differed on the question of
India‟s consular assistance to Kulbhushan Jadhav under the Vienna Convention. The Court noted that the
acts alleged by India--Pakistan's failure to provide the requisite consular notifications with regard to arrest
and detention of Jadhav--appear to be falling within the scope of the Vienna Convention.

The Court said this was sufficient to establish that it has prima facie jurisdiction under Article 1 of the
Optional Protocol. The ICJ also observed that the existence of a 2008 bilateral agreement between the
parties does not change its conclusion on jurisdiction.

With response to second issue of the case the Court observed that rights to consular notification and access
between a State (India) and its nationals, as well as the obligations of the detaining State (Pakistan) to inform
the person concerned without delay of his rights are recognised in Article 36 of the Vienna Convention. India
has alleged violations under this provision. The ICJ said that it appears that the rights alleged by India
are plausible.

On the third issue the ICJ said that the measures requested are aimed at ensuring that the rights contained in
Article 36, paragraph 1, of the Vienna Convention are preserved. The Court observed that a link exists
between the rights claimed by India and the provisional measures being sought.
The Court in response to fourth question said that the mere fact that Kulbhushan Jadhav is under a death
sentence and might therefore is executed is sufficient to demonstrate the existence of a risk of irreparable
prejudice to the rights claimed by India. The ICJ then observed that Pakistan has indicated that any execution
of Kulbhushan Jadhav would probably not take place before August 2017. This means, the Court said, that
there is a risk that an execution could take place any moment thereafter, before the Court has given its final
decision in the case. The ICJ noted that Pakistan has not given any assurance that Kulbhushan Jadhav will
not be executed before the Court has rendered its final decision. Under such circumstances, the Court said
that is satisfied that there is urgency in the present case.

The Court asked Pakistan to take measures at its disposal to ensure Kulbhushan Jadhav is not executed
pending the final decision in the case, and that it will inform the Court of all the measures it has taken to
implement the order.

IMPACT OF THE KULBHUSHAN JADHAV JUDGEMENT IN INTERNATIONAL

LAWS

All the matters in which India was a party before the ICJ, the court has examined its jurisdiction and decided
the matter effectively. The ICJ, in the matter of Kulbhushan Jadhav being prima facie satisfied about the
merits of India‟s case and the availability of its jurisdiction over the dispute has granted interim
relief/provisional measures i.e. stay of execution of Kulbhushan Jadhav by invoking the provisions of the
aforesaid articles. It is a matter of record that both India and Pakistan are signatories to the Vienna
Convention on Consular Relations 1963 providing for consular assistance to their nationals who are facing
trial in other counties and unequivocally and compulsorily conferring jurisdiction in the ICJ. Additionally,
the doctrine of “pacta sunt servanda” which is a well recognized doctrine in international law requires that
treaties entered into in good faith have to be carried out in good faith and any breach thereof amounts to
violation of international law. Examined from this back drop there is no manner of doubt that consular
access to India has been denied even though it is well known that military tribunals in Pakistan are opaque
and operate in violation of national and international fair trial standards and fail to provide justice, truth and
even proper remedies to under trials.

In the present case the court has jurisdiction as per Article 36 of the ICJ statute which has been recognized as
compulsory ipso facto and without special agreement. In almost identical fact situation i.e. in the Lagrand
case and in the case of Avena and other Mexican Nationals the ICJ has exercised its jurisdiction, stayed the
execution and directed review and retrial. The case of Kulbhushan Jadhav is a test case for the ICJ to dispel
the impression that international law is the vanishing point of jurisprudence.

Today the VCCR is one of the most influential and successful international mechanisms to be ever
established under the auspices of the United Nations. Nonetheless, due to changes in the current legal
landscape, there have arisen a lot of ambiguities concerning its scope, thus making its enforcement difficult.
In this paper, I have highlighted the need to revamp the current regime of the law on consular relations in the
international framework. The main problem arises because VCCR does not explicitly lay down whether it
allows for enforcement of individual rights. Along with this, it also does not prescribe an appropriate remedy
for breach. This has led to ambiguities within domestic courts of various jurisdictions. The ICJ, in its
judgment in the LaGrand case, answered this long-standing question for the first time. However, the issue
again surfaced in the Avena case and also recently in the Kulbhushan Jadhav case.

In theory, the opinion rendered by the ICJ calls for a significant shift in the law of consular relations. The
classification of right to consular access as a separate right granted to the foreign defendant calls for more
diligence by the judiciary and in effectively enforcing the modified treatment of foreign nationals detained
within their jurisdiction. In fact, the basis of the LaGrand decision was to aid courts in the future as, by the
time of the decision, the LaGrand brothers had already been executed. However, an analysis of cases of
various jurisdictions reveals that the domestic courts have failed to conform to these mandates in practice.
The reoccurrence of the same issues in not just different domestic courts but also the ICJ demonstrates that
even though the judgments rendered by the ICJ are binding on all signatory states, the domestic courts are
reluctant to enforce them. The typical justification for the same is the ambiguous language of the treaty.
Eventually, the decision rendered by the ICJ did not alter the legal landscape with respect to consular
relations to the extent as was anticipated by the ICJ.

Given the importance accorded to consular relations in the current paradigm, effective enforcement of
consular laws is essential. As was observed, an amendment to the VCCR aimed at removing the ambiguity
in the text of Article 36 would serve as a significant step in the right direction. If the consular relations were
to be governed in the same manner as they are today, then that would effectively hamper not just the due
process rights but also the basic human rights of foreign defendants. Failure to develop effective principles
that clear the abstruseness will further erode the states commitment to protecting rights of foreign criminal
defendants and may undermine the effectiveness of the convention.

An instance of the same was witnessed recently in the Jadhav case. Quite apart from the controversial law
surrounding the case, the judgment is remarkable in a number of other aspects and has received accolades
globally. For instance, at the United Nations, Mexico appreciated the ruling and postulated the same to have
deepened the jurisprudence on consular law. It regarded the ruling to have reminded the VCCR’s ratifying
states of the seriousness associated with the obligations enlisted therein. The Court’s finding that the
obligations under the VCCR are not superfluous and need to be respected by states is therefore sensible.
While the ICJ conclusively did read an espionage exception under the VCCR, it stopped short of recognising
whether it is a valid exception under CIL, thus prudently avoiding a politicisation of the debate.
Additionally, as indicated earlier, the Court also did not elaborate on Pakistan’s alleged exception of mutual
legal assistance in granting consular access in CIL. The ICJ’s failure in finding answers to questions
concomitant to the main claim coupled with rare compliance due to the vagueness of the judgment will
undoubtedly undermine the legitimacy of the ICJ and may embolden states to challenge its rulings on
unimportant or frivolous ground.

This case has stood as an exemplary instance of exploration of new horizons for legal interpretation of
International documents. However, the expedition of justice has been time-consuming which in itself, is a
deterrent to growth of realm of law. On an analysis of the case, one could equate the understanding of the
Vienna Convention with the primordial aspect of jurisdiction that forms the base of every legal case. Further
on referral to consular assistance to be given to Mr. Jadhav, the Court observed that there was an essential
dispute concerning the consular assistance with respect to arrest, detention and trial of Mr. Jadhav.

CONCLUSION

The case between India and Pakistan has been fundamental in progression of international jurisprudence and
development of contemporary mechanism of resolution of disputes between the Parties. The Court in this
case has acted as a mere adjudicator rather than a ‘Court of criminal appeal’. Provisional measures being one
among the most general principles of international law, has become a predominant feature that has binding
effect as laid down in multiple international precedents. Provisions regarding humanitarian law in public
international law has been given weightage in all past incidents over issues between States which is followed
in the current case also, thereby expanding the ambit of jus cogens norm of protection of human rights.

The necessity and relevance of international law can be shown in this scenario; if there was no such law or a
body to approach during a conflict between countries, little issues would strain relations between countries,
leading to a full-fledged conflict. International relations are balanced and maintained in their own ways by
international rules, and they are one of the aspects that contribute to world peace and security.International
law has a significant role in the world. Without a question, the intervention of such laws and conventions has
aided in the peaceful resolution of numerous international issues. International law will change in a continual
and dynamic manner, in response to the needs of the international arena and international relations.