Kulbhushan Jadhav case: ICJ chief holds Pakistan guilty of violations

Presenting the report of the International Court of Justice (ICJ) to the United Nations General Assembly on Wednesday, Abdulqawi Yusuf- the president of ICJ stated that Pakistan had violated its obligations under Article 36 of the Vienna Convention on Consular Relations pertaining to the case of Kulbhushan Jadhav. To begin with, he recounted the exact case put forth by India. Thereafter, Yusuf recalled the ruling of the court on the applicability of the Vienna Convention in a case of espionage. In its judgment dated July 17, 2019, the ICJ had directed Pakistan to carry out an effective review and reconsideration of Jadhav's conviction and sentence. Thereafter, Pakistan put on hold his death sentence.  

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Yusuf said, “This case was instituted by India following the arrest and detention of an Indian national Mr. Kulbhushan Sudhir Jadhav, who was accused by Pakistan of acts of espionage. In April 2017, Mr. Jadhav was sentenced to death by a military court in Pakistan. India argued that consular access was being denied to its national in violation of the 1963 Vienna Convention on Consular Relations which I will refer to simply as the Vienna Convention. In its judgment, the court found that Pakistan had violated its obligations under Article 36 of the Vienna Convention and that appropriate remedies were due in this case. This court had to address several issues regarding the interpretation and application of the Vienna convention in the specific circumstances of the case. One of the issues that the court had to examine was the question of whether the rights related to consular access set out in Article 36 of the Vienna Convention were in any manner to be excluded in a situation where the individual concerned was involved in carrying out acts of espionage. The court noted in that regard that there is no provision in the Vienna convention containing a reference to cases of espionage nor does the Article concerning Consular access- Article 36 of the convention exclude from its scope certain categories of persons such as those suspected of espionage. Therefore, the court concluded that article 36 of the Vienna Convention was applicable in full to the case at hand.” 

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'A breach of its obligation'

The ICJ president also talked about the court’s decision with reference to the bilateral agreement on consular access between India and Pakistan signed in 2008. Furthermore, he termed Pakistan’s delay in informing India about Jadhav’s arrest as a violation of the provisions of the Vienna convention. Yusuf also stressed that the judicial process was best suited for the effective review and reconsideration of Jadhav’s conviction and sentence.  

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He remarked, “Another interesting legal question which the court had to address was whether a bilateral agreement on consular access concluded between the two parties in 2008 could be read as excluding the applicability of the Vienna convention. The court considered that this was not the case. More precisely, the court noted that under the Vienna convention, parties were able to conclude only bilateral agreements that extend or amplify the provisions. Having examined the 2008 agreement, the court came to the conclusion that it could not be read as denying consular access in case of the arrest, detention or sentence made on political or security grounds and that, it did not displace obligations under Article 36 of the Vienna Convention. The court was also called upon to interpret the meaning of the expression ‘without delay’ in the notification requirements of Article 36 of the Vienna convention. The court noted that in its case law, the question of how to determine what was ‘without delay’, depended on the given circumstances of a case. Taking into account the particular circumstances of the Jadhav case, the court noted that Pakistan’s meeting of the notification some three weeks after Mr. Jadhav’s arrest constituted a breach of its obligation to inform India’s consular post without delay as required by the provisions of the Vienna Convention. I now come to the crux of the court’s ruling, where the court considered the reparation and remedies to be granted after the rights of consular access had been violated. The court found that the appropriate remedy was an effective review and reconsideration of the conviction and sentence of Mr. Jadhav. The court moreover clarified what it considered to be the requirements of effective review and reconsideration. It is stressed that Pakistan must ensure full weight is given to the effect of the violation of rights set forth in the Vienna convention and guarantee that the possible prejudice caused by the violation is fully examined. While the court left the choice of means to provide effective review and reconsideration to Pakistan, it noted that effective review and reconsideration presupposes the existence of a procedure that is suitable for this purpose and observed that it is normally the judicial process that is suited to this task.” 

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