History is replete with instances where the intricacies of the layered international laws have created a quagmire instead of resolving the dispute. One such historic case is the legal case between arch rivals of the South Asian continent India and Pakistan. The roots of this case can be traced back to the year 2016, when Kulbhushan Jadhav who is a former Indian naval officer, was arrested by Islamabad owing to allegedly an espionage case. As per the Pakistani side, Jadhav was involved in suspicious activities of spying and was in relation with the Indian premier spy agency, Research and Analysis Wing (RAW). Subsequently, for perpetrating activities of terrorism and espionage against Pakistan, Jadhav was sentenced to death. Following this was a deep-rooted diplomatic and legal tussle that went on for several years with no respite. The case presents some of the lacunas and grey areas in International law jurisprudence and its efficient implementation so as to ensure no state is able to dodge legal obligations on the compliance of human rights across all spectrums.
The historical context
The Pakistani authorities detained Kulbhushan Jadhav in the south of its Balochistan province owing to alleged espionage activities. On the other hand, the Indian authorities simply deny this fact and assert that Jadhav was carrying out a business in Iran and was maliciously implicated in the case. Islamabad’s military court in 2017 sentenced Jadhav to a death sentence despite a plethora of requests from the Indian side to ensure that proper legal representation of the accused is carried out. However, this did not deter Pakistan to fabricate the allegations. Following the gag order, the Indian government filed a formal complaint against Pakistan in the International Court of Justice (ICJ) in 2018.
The contentions raised by India
The primary rationale put to the fore by the Indian legal representatives in the ICJ was that the Pakistani authorities have violated the basic principle of natural justice and denied legitimate legal representation to Indian citizen Kulbhushan Jadhav. India asserted that Pakistan has grossly violated the fundamental principles of the Vienna Convention on Consular Relations (VCCR) of 1963 also known as the Vienna Convention and thereby ought to be stopped for this gross infringement. The Indian side averred that as per the Article 36 of the Vienna Convention, the consular officers of a state ought to have the accessibility to contact their nationals who are present in foreign lands. Thereby the denial of the Indian requests by the Indian side to grant consular access to Kulbhushan Jadhav is in dissonance with international laws and regulations. As per this rule of the international convention, a consular is entitled to free passage to meet the national in a foreign land and arrange for subsequent measures for an adequate legal proceeding. India even pointed out the “unprecedented” delays in informing the country of the detained person about the arrest. Another fact that was underscored was the deliberate and desperate court conviction by the Pakistani military court which runs in contravention to the due diligence procedure of law.
The contentions raised by Pakistan
On the Pakistani side, the major contentions raised were that the proceedings at the International Court of Justice are not legally valid in the present scenario. It had averred that India ought to first exhaust its legal remedies and then only the ICJ’s jurisdiction would be applicable to the situation. Pakistan invoked that since the passport procured with Jadhav did not mention that he was an Indian national, therefore there is no veracity of the Indian arguments. It also highlighted that the authorities have followed their own due course process to investigate a potential case of espionage. Pakistan even contended that the Vienna Convention did not refer to cases of espionage therefore, the present laws are not applicable to the case at hand. Therefore, the Indian authorities have no locus standi in the case and it must come with “clean hands” was the contentions raised by the Pakistani side.
International Court of Justice
The ultimate question raised before the ICJ was about the application of the due diligence process and the right to fair, just and transparent justice proceedings for the Indian national. Subsequently, after hearing both parties to the dispute, the ICJ pronounced an unambiguous order with a 15:1 majority asserting Pakistani side had flouted the Vienna Convention of 1963. The Pakistani side’s contentions regarding the abuse of power and dominance by the Indian side were blatantly rejected and the Indian contention that Pakistani authorities infringed upon Article 36 of the Vienna Convention was taken into consideration. The ICJ pronounced that Pakistan has an obligation to provide the Indian national, Kulbhushan Jadhav with proper access to legal representation and consular access. Despite the international law stating that the accused has a legitimate right to appeal in the further courts about the verdict, the same was denied in the Kulbhushan Jadhav case. Therefore, this was in stark contrast to the basic fundamental right that every accused is entitled to even in case of being held in a foreign land. The ICJ asked the Pakistani authorities to review its judicial stance and stayed the death sentence granted to Kulbhushan Jadhav. Despite the international order emphasising the imperative nature of following due legal process, there have been legitimate apprehensions regarding the effective and timely execution of the order. The international intervention does open a window for diplomatic talks to be carried out however if the Pakistani authorities will comply with the verdict and make all the fundamental rights of an accused accessible to Kulbhushan Jadhav is still under suspicion.
The verdict passed by the ICJ in favour of the Indian side was definitely a glimmer of hope to set free Kulbhushan Jadhav from the fabricated case built up by Pakistan. However, a bleak implementation procedure of the ICJ’s order glaringly put forward the visible gey areas in the international laws where certain aspects can be manipulated to grind one’s own axe. Thereby ensuring comprehensive and well-vetted rules and regulations are contrived in order to maintain that all basic fundamental rights and other human rights are guaranteed by states all across the globe. The cornerstone of the long legal battle between India and Pakistan casts doubts over the legitimacy and efficiency of these international laws. Ergo, for democratic practice to sustain a complete overhaul in the international legal framework, is a sine qua non.
Author(s) Name: Aditi Saxena (Rajiv Gandhi National University of Law, Patiala)