This Research Paper is written by Abhay Kumar, a Third Year B.A LL.B (Hons.) Student at Lloyd Law College.
This article includes the introduction about the case along with the history of the Kulbhushan and what is the importance of the case. This paper also talks about the facts of the case. Why Matter goes to the International Court of justice (ICJ) and what was the impact of the relation between India and Pakistan during the Kulbhushan case. It contains some basic rules and law of ICJ. Explain the what is the role of ICJ in this case and Major rule, Consular access and also define the What is International Court of Justice? So many things. This paper also examines the Vienna Treaty in 1961 and What is the Vienna Convention? Along with Article 36 of the Vienna Convention and what court gave the Judgement in this case.? And at last, this paper has a bast conclusion.
Kulbhushan Jadhav is an Indian national Man which was on the death row in Pakistan. He is convicted of carrying out espionage and sabotage activities against Pakistan. On March 3, 2016, Pakistan claims that Kulbhushan was arrested as a former Indian Navy officer in Balochistan. Indian has totally denied the allegations which were made by Pakistan on 3rd March 2016.
Pakistan also claims that its security forces arrested Kulbhushan Jadhav, Alias Hussain, and Mubarak Patel from Balochistan province on March 3, 2016, who allegedly sneaked into Iran from Balochistan.
On 17 July 2019 International Court of Justice (ICJ) The Hague, situated in Netherland, in its ruling and asked Pakistan to reconsider upholding of execution against Kulbhushan Jadhav and also stated that Pakistan to give them permission to meet Indian diplomats. But the court did not agree that whether to cancel, acquit, release or send him back to India.
WHO IS KULBHUSHAN JADHAV?
Kulbhushan Yadav was born on 16 April 1970 in Maharashtra and he is a retired Indian National Navy who had appointed Indian Navy between 1987 to 2001. Jadhav is married and has two children. His family resides in Mumbai.
Facts of the Case
On 3 March 2016 Pakistan announced that Kulbhushan Jadhav was arrested and he was custody in the Pakistan’s government. On March 25, 2016, Pakistan informs to the government of India that Kulbhushan Jadhav was arrested in Balochistan. India moves to International Court of Justice (ICJ) on 8 May 2017 against Pakistan. May 15, 2017 ICJ start hearing the request of India for provisional measures and Pakistan demands to court reject the request.
May 18, 2017, ICJ state that to Pakistan asking it to take all the measures to prevent the execution of Jadhav and waiting for the final judgement of the court. Jadhav meets his wife and mother after allow them to see him on December 25, 2017. Field General Court Martial in Pakistan on 10 April 2017, states that we need to give the death sentenced to Kulbhushan Jadhav with the respect of the death-sentenced Government of India challenged this verdict in the International Court of Justice.
The final hearing took place at ICJ from February 18-21, 2019. July 17, 2019, ICJ rules must review that Navy officer Kulbhushan Jadhav, who was sentenced to death by a Pakistan military court on charges of ‘espionage and terrorism’ in 2017 and July 19, 2019, Pakistan grants to consular access. After that 2 September 2019, Indian officials meet Jadhav in Pakistan.
The matter goes to the International Court of justice (ICJ)
On May 8, 2017, India filed a writ petition in the ICJ after the Pakistani military court’s ruling, and 16 times the request for consular access was rejected, violating the Vienna Treaty. The very next day the ICJ put a stay on the death sentence of Kulbhushan Jadhav till the completion of the hearing. In these two years, India and Pakistan have written and verbally presented their side.
In the International Court of Justice, Pakistan rejected India’s demand to provide diplomatic access to Kulbhushan Jadhav, claiming that India wanted to reach him for the intelligence gathered by his spy. Pakistan stated in the ICJ that under the Vienna Treaty such a facility is not for spies, but for legitimate travelers.
The judges almost unanimously held that India’s appeal to the ICJ, in this case, was absolutely correct and that the matter falls within the jurisdiction of the court. Of the 16 judges of the court, 15 rejected Pakistan’s opposition to the issue, only Pakistan’s Adhawk Judge Jilani expressed his opposition.
Important points rise between Pakistan and India
India state that Kulbhushan Jadhav is a retired Indian Navy commander and took official retirement and doing his business in Iran. He was deliberately trapped in the spying case abducted by Pakistan.
Pakistan’s claims and India’s response
Pakistan state that Jadhav entered Chabahar in 2003 with a fake passport that showed his name as Hussain Mubarak Patel.
Pakistani mentioned that his job was too fixed in Pakistan by strengthening a separatist movement in Balochistan and Karachi.
India claims, saying Jadhav was kidnapped from Iran, where he was running a business. India and Pakistan presented their initial arguments in the Kulbhushan Jadhav case before the International Court of Justice, but the bilateral consular access agreement between the two countries played a big role in this legal issue in the bilateral consular access agreement. Significantly, on May 21, 2008, Section 6 of the Consultative Accessibility Agreement was signed by the then High Commissioners of India and Pakistan. Under this section, the interests of both countries will be taken into consideration in the matter of arrest, detention, and punishment on political and security grounds.
Even before it has happened
Even before the Kulbhushan Jadhav case, India and Pakistan have come face to face in the ICJ thrice:
For the first time in 1971, India appealed against the decision given in favor of Pakistan by the International Civil Aviation Organization. The ICJ then rejected India’s claim.
In the second case of 1973, the ICJ sided with India and rejected Pakistan’s claim that its prisoners were being abused in India.
The third case dates back to 2000 when the court agreed with India’s arguments on a complaint about the Pakistani plane being killed.
1. The host country gives special status to the diplomats of other countries living here.
2. No country can arrest diplomats of any other country in any legal matter nor can they be kept in any kind of custody.
3. No diplomat can impose any kind of custom tax in the host country.
4. According to Article 31 of the treaty, the host country cannot enter the embassy of another country and the host country must bear the responsibility of protecting that embassy.
5. According to Article 36 of the treaty, if a country arrests a foreign national, then the embassy of the country concerned will have to inform it immediately.
6. Article 5 of the treaty mentions five works. These include protecting the interests of our country and citizens in the host country, maintaining economic, cultural, and scientific relations between the two countries.
Upon the request of the arrested foreign national, the host country police will have to fax it to the concerned embassy or diplomat. In this fax, the police will also have to provide the name of the arrested person, place of arrest, and the reason. India raised the case of Kulbhushan Jadhav citing the provisions of Article 36 in the ICJ and the demand for the release of Wing Commander Abhinandan was also raised under this treaty.
The treaty also provides that diplomatic access cannot be granted to a foreign national arrested in cases of national security (espionage or terrorism). Especially when the two countries have reached a mutual agreement on this issue.
It may be noted that a similar agreement was reached between India and Pakistan in the year 2008. Pakistan has been denying diplomatic access to Kulbhushan Jadhav on the basis of this agreement.
What is the International Court of Justice?
- The International Court of Justice is known as the apex court all over Asia and it is the principal judicial body of the United Nations.
- It was established by the United Nations Charter in 1945 and started functioning in April 1946.
- Its headquarters (Peace Palace) is located in The Hague (Netherlands).
- The burden of its administrative expenses is borne by the United Nations and Its official languages are English and French.
- The ICJ consists of 15 judges, who are elected by the United Nations General Assembly and the Security Council for nine years. Its quorum is of 9 judges.
- To get an appointment as a judge in the ICJ, a candidate has to get a majority in both the General Assembly and the Security Council.
- These judges are appointed not on the basis of their nationality but on their high moral character, competence, and their understanding of international laws.
- The unanimous decision of other judges is necessary to remove a judge.
- Two judges cannot be elected or appointed from the same country.
- The first Indian Chief Justice in the ICJ was Dr. Nagendra Singh and currently, Justice Dalveer Bhandari is representing India in the ICJ.
- The decision on cases is by a majority of judges. The Chairman has the right to vote absolutely.
- The decision of the ICJ is final and cannot be appealed again, but maybe reconsidered in some cases.
According to the United Nations Charter, all its 193 member countries have the right to seek justice from this Court. However, countries that are not members of the United Nations can also appeals for justice here.
What is the Vienna Convention?
The first was the, regarding mutual diplomatic relations between independent and sovereign countries. Under this, a provision was made for an international treaty in which diplomats were given special powers.
Two years after this treaty, in 1963, the United Nations provided for another treaty similar to this, called the Vienna Convention on Consular Relations. Its draft was prepared by the International Law Commission. It was implemented in 1964, and only then did the Vienna Treaty come into full force.
As of February 2017, a total of 191 countries around the world had signed the Vienna Treaty. At the same time, 179 countries have signed and agreed to the ‘Vienna Convention on Consular Relations’. India and Pakistan are also part of this treaty.
There is a total of 85 articles under this treaty and India raised the case of Kulbhushan Jadhav under this treaty.
What is Article 36 of the Vienna Convention?
According to Article 36 of the Vienna Convention, the citizens of the sending officer (the country whose citizen is in imprisonment) can establish contact with the citizens of their country, with the citizens of their country (who are imprisoned) outside The right to go while the citizen of another country must inform the advising office of the citizens living in the imprisonment of their country without delay, that they have imprisoned a person in their country.
The bench headed by Abdulkawi Ahmad Yusuf of the ICJ, The Hague, Netherlands, upheld the hanging of Indian national Kulbhushan Jadhav by a 15-1 majority after a hearing lasting 2 years and 2 months. It may be noted that Kulbhushan Jadhav was sentenced to death by a Pakistani military court in a spying case which was challenged by India in May 2017, after which the sentence stayed in July 2018.
The justice bench ruled after a public hearing at the Peace Palace in The Hague. A 15-member bench of the court reserved its verdict on 21 February after hearing oral arguments from India and Pakistan in the much-discussed case.
This order of ‘effective review and reconsideration’ on the punishment of Kulbhushan Jadhav is the sequel to the temporary order of 2017, in which the international court had asked not to hang Kulbhushan Jadhav till the final verdict.
The way to improve the relationship
According to the verdict, Pakistan is free to take all measures for ‘effective review and reconsideration’. This also includes enacting appropriate legislation when needed. However, Pakistan can use this decision to melt the frozen ice between the two countries. There is no doubt that if Pakistan returns to Kulbhushan Jadhav, it will have a positive effect on the Indian public. This will be more effective if Pakistan does this work without coming under pressure from America, China, or any other country.
As far as the domestic laws of Pakistan are concerned, a provision of the Pakistan Army Act-1952 also states that if the action of a court-martial appears to be unjust, the federal government can cancel it. Pakistan can do this. Resolving this matter on humanitarian grounds will also speed up other human activities, such as increasing the movement of people across the border and ensuring smooth travel. All these can also form the basis of bilateral and meaningful dialogue.
Kulbhushan Jadhav’s case was the most challenging case in front of the court. Both countries India and Pakistan claim that different facts and issues. When this case was raised both the countries ware started defaming to each other and did not agree to accepts the facts of the case and arguments that Kulbhushan Jadhav was arrested by Pakistan. Pakistan also claims that Kulbhushan Jadhav was arrested in the term that he was an espy. In this case, we found that lots of rules and laws were challenged in front of ICJ. At the last court gave the death sentence to Kulbhushan Jadhav.