Legal Battle Between India And Pakistan At International Court Of Justice

KEY TAKEAWAYS

• On 3rd of March,2016 Kulbhushan Jadhav was arrested by the Pakistani Government on suspicion of him being a spy. 
• India responded Jadhav is a retired naval officer who was forcibly abducted from Iran by Pakistani officials and the charges are laid false.
• Death sentence delivered to Mr. Jadhavon account of “Espionage and Terrorism”. 
• India after failing to resolve the issue with Pakistan sought it best to approach the Hon'ble International Court of Justice
• On July 17, 2019, the International Court of Justice (ICJ) delivered a substantial judgment in India's favour, with a ratio of 15:1
• It was ruled that Pakistan had violated its obligations under Article 36 of the Vienna Convention on Consular Relations. 
• Pakistan has showed no signs of executing the July 2019 judgement therefore, the Government of India may need to return to the ICJ. 

India v. Pakistan whether these two nations compete against one another in cricket or engage in political wrangling, controversy is usually stirred. In this article, we'll discuss about Kulbhushan Jadhav, a courtroom encounter between these two nations.

BACKGROUND OF THE CASE

Everything began when Pakistan arrested Kulbushan Jadhav on March 3, 2016, and further asserted that Jadhav was arrested because he had unlawfully entered Pakistan through Iran with an Indian passport carrying the name "Hussein Mubarak Patel" and had been apprehended in Baluchistan.Pakistani officials claimed that his job was to destabilise Pakistan by strengthening a separatist movement in Baluchistan and Karachi – a mission which officially began in 2013.

The Pakistani minister for external affairs wrote to the Indian High Commission in Islamabad on January 23, 2017 to request assistance with a criminal investigation involving an Indian Nationalist. On March 23, 2017, India responded, alleging that the charges brought against Jadhav are false. It was also made clear that Jadhav is a retired naval officer who was forcibly abducted from Iran by Pakistani officials. Over 16 requests from the Indian government were turned down by Pakistan when asked for consular access to Kulbhushan Jadhav.

Mr. Jadhav's trial took place before a Field General Court Martial in regards with the claims made by Pakistan. He was held over under Section 3 of the Official Secrets Act of 1923 and Section 59 of the Pakistan Army Act of 1952, respectively. On April 10, 2017,after conducting the trial the Field General Court Martial delivered a death sentence for Mr. Jadhavon account of “Espionage and Terrorism”. 

After much deliberations and negotiations between New Delhi and Islamabad, on 10.11.2017, Pakistan allowed the visit of Mr. Jadhav’s wife on ‘humanitarian grounds ‘and further extended the offer for his mother as well, it also assured India of the safety of the visitors and their free movement.

The Case at the ICJ

Both India and Pakistan are parties to the Vienna Convention, which defines the consular relations between independent states. 

India after failing to resolve the issue with Pakistan sought it best to approach the Hon'ble International Court of Justice challenging the death sentence and Consular access to Jadhav, under Article 36 paragraph 1 of the Statute of the International Court of Justice and Article 1 of the Optional Protocol. 

However, first it needed to be decided that if the ICJ had jurisdiction over the case in entirety, the answer to this is both nations, in addition to being VCCR members, are also members of the "Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes." It was noted that, with the exception of VCCR, no other international treaties are violated by the case, which derives its jurisdiction from Article 1 of the "Optional Protocol." As claimed by the State of India over the violation of VCCR, it therefore has legal jurisdiction under Article 1 of the Optional Protocol.

On May 15th, 2017  The ICJ proceedings began in The Hague to review the case. India and Pakistan both sent their legal teams to put forward their arguments, led by Harish Salve and Khawar Qureshi respectively. 

The Indian government's main three objections against Pakistan were related to the misuse of authority, violation of human rights, and unlawful conduct. It was also crucial to determine whether Pakistan had violated the requirements of the Vienna Convention on Consular Relations (VCCR) and International Covenant on Civil and Political Rights (ICCPR) by denying Kulbhushan Jadhav access to the consulate and by failing to inform India of Jadhav's arrest and detention.

JUDGEMENT

On July 17, 2019, the International Court of Justice (ICJ) delivered a substantial judgment in India's favour, with a ratio of 15:1. The majority's decision focused primarily on the issue of a violation of VCCR Article 36.

It gave India unhindered consular access to Mr. Jadhav, ensuring that the meeting would take place in a setting free from intimidation and retaliation and that Indian authorities would be able to speak with Jadhav in private in private without being heard or recorded. Mr. Jadhav in additional would be provided with all the facilities and resources necessary to review the reconsideration of his conviction and sentence.

Further, it was determined that Pakistan had violated its obligations under Article 36 of the VCCR by not informing Jadhav of his rights, denying him access to consular services, and failing to notify India about Jadhav's arrest. All of these were included in the VCCR agreement, to which Pakistan had consented without making any declarations or reservations. As a result, the court determined that Pakistan was breaking international law.

Since both India and Pakistan are members of the UN, they’ve to comply with the judgement of ICJ. 

AFTER THE JUDGEMENT

On September 2nd, Mr. Jadhav obtained his first consular access when Indian deputy high commissioner Gaurav Ahluwalia met with him in a specially constructed sub-jail in the presence of Pakistani officials. The officers also recorded the roughly two-hour-long meeting that took place.

It was on May 2020, that the Pakistani government enacted the International Court of Justice Review and Reconsideration Ordinance, 2020, which stipulated that a petition for review and reconsideration of a conviction by a military tribunal could be submitted to the Islamabad High Court through an application within 60 days of the ordinance's entry into force.

However, Pakistan has repeatedly disregarded their obligation and failed to uphold the letter and spirit of the ICJ's ruling by denying Mr. Jadhav unconditional, unrestricted access to consular services. Since Pakistan has showed no signs of executing the July 2019 judgement, lawyer Harish Salve has indicated that the Government of India may need to return to the ICJ.
 

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