By: Mansi Singh
Kulbhusan Sudhir Jadhav (also spelt Kulbhushan Yadav) is an Indian National. He was born on 16 April 1970 to Marathi Family in Sangli, Maharashtra. His father Mr Sudhir Jadhav is a retired Mumbai Police Officer and his mother Mrs Avanti Jadhav a homemaker.
Kulbhusan Jadhav (hereinafter “Mr Jadhav”) is a married man to Chetankul Jadhav with two children. His family resides in Powai, Mumbai. Mr Jadhav joined National Defence Academy in 1987 and was commissioned in the engineering branch of the Indian Navy in 1991. After serving in the Indian Navy for more than 13 years he had decided to seek retirement in 2001.
After, 14 years of service, Mr Jadhav was inducted into intelligence operations in 2003 and established a small business in Chabahar Port in Iran.
But, after some time on 03.03.2016, his life become a disaster and he was hit by a storm, Pakistan government detained him from Balochistan near the border with Iran. Mr Jadhav was arrested under the charge of “espionage and terrorism on behalf of India”
BACKGROUND OF CASE
On 03.03.2016, Mr Kulbhusan Sudhir Jadhav was detained by Pakistan authorities. The Detention of Mr Jadhav was a matter of dispute between the parties (i.e. India and Pakistan). As per Pakistan, Mr Jadhav, whom it accuses of performing acts of “espionage and terrorism on behalf of India”, was arrested in Balochistan near the border with Iran after illegally entering Pakistani territory.
According to Pakistan at the moment of Mr Jadhav arrest, he had an Indian passport bearing the name of “Hussein Mubarak Patel”. Indian denies this fact. India contends that Mr Jadhav, was abducted from Iran and subsequently transferred to Pakistan and detained for interrogation.
On 25.03.2016, the Pakistani Military raised an issue with the High Commissioner of India in Islamabad and shared a video, in which Mr Jadhav appears to confess to the allegations which were against him. It was said to be involvement in “espionage and terrorism in Pakistan on behalf of Indian” On 21.09.2016, the trial of Mr Jadhav was started.
The trial was made public through a press release. Mr Jadhav was tried under section 59 of the Pakistan Army Act of 1952 and section 3 of the official secrets Acts of 1923.
On 23.01.2017, the Ministry of Foreign Affairs of Pakistan sent a “Letter of Assistance for Criminal Investigation against Indian National Kulbhushan Subhir Jadhav” to a high Commission of Indian in Islamabad, seeking support in “Obtaining evidence, material and record for the criminal investigation”.
On 10.04.2017, Pakistan declares that Mr Jadhav had been sentenced to death on account of “espionage and terrorism.” On 26.04.2017, the High Commission of India in Islamabad disseminates to Pakistan, on an “appeal” by Mr Jadhav’s Mother, under section 133 (B) and a mercy petition to the Federal Government of Pakistan under section 131 of the Pakistan Army Act.
On 22.06.2017, the Inter-Service of Pakistan issued a press release announcing that Mr Jadhav had made to mercy petition to the Chief of Army Staff but, the appeal got rejected by the Military Appellate Court.
VIOLATION OF VIENNA CONVENTION, 1963
On 08.05.2017, an Indian approached the International Court of Justice (ICJ) filed an Application instituting proceedings against Pakistan in respect of a dispute between the parties (i.e. India v. Pakistan) Indian alleges that the violations of the Vienna Convention on Consular Relations of 24.04.1963.
India submissions asking the (ICJ) to declare the verdict of Pakistan void as Pakistani Military violated Mr Jadhav “elementary human right” which affects Article 14 of the 1966 International Covenant on Civil and Political Rights”.
India contention on violations of the Vienna Convention on Consular Relations of 24.04.1963 was held up and after negotiations between New Delhi and Islamabad, on 10.11.2017, Pakistan allowed the visit of Mr Jadhav’s wife on “humanitarian ground” and then it is extended to the mother also.
In conclusion, Kulbhushan Sudhir Jadhav was a 50-year-old retired Indian Navy Officer who was doing a small business in Iran and then was sentenced to capital punishment by the Military Court of Pakistan. The charge against Mr Jadhav was of “espionage and terrorism”
OBJECTION RAISED BY PAKISTAN
Abuse of process
The first objection raised by Pakistan is that Indians has abused the Court’s Procedures. Pakistan contended that India had failed to consider other dispute settlement mechanisms envisaged in Articles II and III of the Optional Protocol.
Feature Pakistan contended that India failed to draw the courts attention to the existence of a constitutional right to lodge a clemency petition.
The Court observes, about Pakistan’s argument, Mr Jadav situation of the availability under Pakistan law of any appeal or petition procedure, including the clemency petition to which Pakistan refers in support of its claim.
Therefore, there is no basis to conclude that India abuses its procedure rights when requested by Pakistan the court to indicate provisional measure in this case.
Abuse of right
In the second objection which Pakistan requests from the court that India has to abuse various rights under international laws. In pleading Pakistan firstly contended that India refuse to “provide evidence” of Mr Jadav’s Indian nationality through his “actual passport in the real name”, even though it is the duty to do so.
Secondly, Pakistan mentions India fails to engage with its request for assistance with the criminal investigations into Mr Jadav’s activities. Thirdly, Pakistan contended that Mr Jadav had crossed the India border with a “false cover name authentic passport” to conduct “espionage and terrorist activity”.
Concerning this Pakistan contend many allegations on Mr Jadav which invoke various counter-terrorism obligation set up by Security Council resolution 1373 (2001).
Pakistan asked the court to dismiss the application based on India alleged unlawful conduct relying on the doctrine of “clean hands” and the principles of “ex turpi cause non-oritur action” and “ex injuria jus non-oritur”.
The court does not consider that an objection based on the “clean hands” doctrine may by itself render an application based on a valid title of jurisdiction inadmissible. The court, therefore, concluded that Pakistan’s objections based on the said doctrine must be rejected.
ARTICLE 36 THE VIENNA CONVENTION
- Applicability of Article 36 of the Vienna Convention on Consular Relations.
The court observed that there is threefold contention which is made by Pakistan. One, they argue that Article 36 of the Vienna Convention does not apply in prima facie cases of espionage.
Second, it contends about the jurisdiction of international law governs cases of espionage in consular relations and allows states to make an exception to the provision on consular access contained in article 36 of the Vienna Convention.
Third, Pakistan maintains that it is the 2008 Agreement on consular access between India and Pakistan rather than Article 36 of the Vienna Convention which regulates consular access in the present case.
- Violations of Article 36 of the Vienna Convention on Consular Relations.
In the final submission, India contended that Pakistan acted in breach of its obligation under Article 36 of the Vienna Convention (1) by not information India, without delay, of the detention of Mr Jadav; (2) by not informing Mr Jadhav of his rights under Article 36; and (3) by delaying consular officers of India access to Mr Jadav.
- Failure of Article 36 of the Vienna Convention on Consular Relations.
The court addresses their submission of India the alleged failure of Pakistan to provide consular access to Mr Jadhav.
The court recall Article 36, paragraph 1 that talk about individual rights, which by surveillance of Article I of the Optional Protocol, make invoked in this court by the national state of the detained person.
Because of facts presented and precedents drawn:
The ICJ held Pakistan guilty of violating the provisions of VCCR by denying consular access and at the same time held them guilty of not accepting the provisions of optional protocol, 1969 as well.
In the lighting matter, the judgment and reasoning which is given by the Honorable International Court of Justice the researcher genuinely agree on this and appreciate many substantial points. Also, there are certain points on which the researcher is not completely agreed but still will keep it as a different point of view. Both opinions have their importance.