Kulbhushan Jadhav’s right to consular access affirmed by ICJ

THE International Court of Justice (ICJ) at The Hague has ruled in favour of India in the Kulbhushan Jadhav case by affirming Jadhav's right to "consular access" under Article 36 of the Vienna Convention on Consular Relations, 1963.

The International Court has also said that Jadhav's death sentence should remain suspended until Pakistan effectively reviews and reconsiders the conviction and sentence in light of Pakistan's breach of Art 36(1) i.e. denial of consular access and notification. It has directed Pakistan to provide an effective review and reconsideration of his conviction and sentences.

However, the court has rejected most of the remedies sought by India, including annulment of the military court decision convicting Jadhav, his release and safe passage.

Who is Kulbhushan Jadhav? 

Kulbhushan Jadhav is an Indian national and a former Navy Officer who was retired in 2002. Jadhav was captured by the Pakistan Army on March 3, 2016, from Saravan in Iran (close to the Pakistan border) on suspicion of espionage and sabotage activities against Pakistan. After 22 days, India was informed by Pakistan about Jadhav's arrest on March 25, 2016.

On March 3, 2017, Pakistan refused to extradite Jadhav under any circumstance. He was put on trial by a military court and convicted on charges of espionage and terrorism. On April 4, 2017, Pakistan's Inter-Services Public Relations issued an official statement on Jadhav's death sentence.

On May 18, 2017, the ICJ unanimously granted a stay on Jadhav's execution, after India approached the International Court for an annulment of the death sentence. From February 18 – 21, 2019, the ICJ heard India and Pakistan's arguments on Jadhav's case on the violation of treaties, customary international law and other international legal norms.

India's arguments before the ICJ

India contended that Pakistan had violated its responsibility under international law. It argued that Pakistan had failed to allow "consular access" to Kulbhushan which is provided under Article 36 of the Vienna Convention on Consular Relations, 1963 (VCCR).

Article 36 (Communication and contact with nationals of the sending State) reads as follow:

1.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, 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 of his rights under this subparagraph;

c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

Senior advocate Harish Salve, India's counsel for the proceedings at the ICJ, presented two broad issues for the court to consider:

1. Whether Pakistan could have denied consular access to Jadhav in light of Article 36 of the VCCR.
2. What relief should be granted if Pakistan is found to have violated Article 36 of the VCCR?

He put forth the following arguments before the court:

1. Pakistan had failed to inform Jadhav of his rights under international law
2. Pakistan had failed to inform India about Jadhav's arrest
3. Pakistan could not rely on Article 36(2) – which says "Article 36 (1)shall be exercised in conformity with the laws and regulations of the receiving State" – to say that it could restrict consular access to someone accused of being a foreign spy and terrorist. The proviso to Article 36 (2) clearly says that any such laws or regulations must give full effect to the purposes for which the rights in Article 36 (1) are intended
4. During the drafting of the VCCR, the Chairman of the International Law Commission suggested that it may be desirable that local authorities should not have to inform the consular authorities of another country if they arrested a spy. However, since the treaty was never "reopened" and this exception was not added. This implies the drafters of Article 36 decided against making espionage an exception to consular access.
5. Right to consular access under Article 36 is a crucial facet of due process, which States are bound to follow when it comes to criminal cases under international human rights law, no matter how serious the charge may be.
6. Failure to provide consular access is also a violation of the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights which is ratified by both the countries.
7. Jadhav who is "civilian" was tried by a military Court which is illegal.

Pakistan's Attorney General Anwar Mansor Khan contended before the ICJ that Jadhav was not entitled to consular access because he was a spy who illegally entered the country in order to create "unrest and instability".

International Court of Justice

The ICJ was established in June 1956 by the Charter of the United Nations as the principal judicial organ of the United Nations and it began working in April 1946.

The Court's role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

The last time India and Pakistan took a dispute to the ICJ was in 1999 when Islamabad protested against India's downing of a Pakistani navy plane that killed 16 people.

The ICJ then decided that it had "no jurisdiction to rule on the dispute" and closed the case.

Also read: A Primer on the Jadhav Case at the International Court of Justice