By Punsara Amarasinghe and Prof.Sanjay Rajhans
When Indian national Mr. Kulbushan Jadhav was arrested in 2016 by Pakistan alleging him as a RAW operative and the reaction came from New Delhi was based on their interest in providing consular access to Mr. Jadhav and strongly denied any espionage link. Nevertheless the judgment given by a military tribunal in Pakistan in 2017 affirmed death sentence to Mr. Jadhav led to a storm in media, politics and public opinion in two countries filled with paroxysm of aged long Indian Pakistan rivalry. Yet, the diplomatic initiative taken by government of India sent its resentment about the death sentence to Mr. Jadhav, which was portrayed as a premeditated murder and took the matter to ICJ in 2017 May asserting Pakistan denied India’s right of consular access to Mr. Jadhav was a violation of Vienna Convention.
However, after two years of judicial proceeding in Hague much awaited ICJ judgment on Kulbushan Jadhav was delivered on 17thof July. Firstly court has unanimously rejected by fifteen votes to one , the objections raised by Pakistan to the admissibility of the application filed by India to ICJ and court has found that application is admissible and more importantly court held Pakistan deprived the right of India to communicate with its citizen in order to arrange his legal representation , which basically breached the duties elucidated by Article 36 paragraph 1 of Vienna Treaty of Consular Relations as Pakistan being a state party to the particular convention of 1963. In its defense Pakistan tried to prevent the admissibility of the case by bringing international legal principles like Ex injuria jus non oritur (law does not arise from injustice) and Ex turpi causa non oritur actio (From a dishonorable cause action does not arise) in order to prove that the matter cannot be admissible and moreover Pakistan argued that Article 36 of Vienna Convention on Consular Relations cannot be applied in prima facie case of espionage.
However, none of the objections raised by Pakistan could make any decisive impact in favor of them as ICJ palpably admitted the breach of Article 36 of VCCR by Pakistan for three main reasons. Firstly Pakistan had not granted his rights to Mr. Jadhav without a delay under Article 36 of VCCR, secondly Pakistan has not given access to India for its consular assistance for their citizen under custody and thirdly court held Pakistan has violated its obligation under VCCR to inform relevant Indian consular posts in Pakistan about Mr. Jadhav’s detention without a delay.
One of the most interesting legal interpretations arose from the verdict was that manner ICJ rebutted the contention brought by Pakistan claiming the issues on consular access is governed by 2008 bilateral agreement between the two countries. In its response ICJ clearly stated that 2008 bilateral agreement would not impede ether party from their obligation to VCCR. It is important to understand the ruling of ICJ will not flat out the release of Mr. Jadhav , it would seem likely that , unless a diplomatic solution is found , he will have to stand trial again in Pakistan.
In examining the Kulbushan saga since his arrest in 2016, it becomes clear that Islamabad played its cards well at outset as Pakistan launched a campaign to tarnish India as the villain who sent its operatives to sabotage the internal stability. But, it seems to indicate that the diplomatic encounter started by Pakistan boomeranged upon them after the terrorist activities carried out by militants in Indian soil and Delhi strategically swept over Islamabad by lobbying international community for isolating Pakistan diplomatically. Especially after the attack on Indian paramilitary forces in Pulwama which killed 40 Indian soldiers, the blatant reply came from Delhi jeopardized Pakistan internationally. Especially listing Jaish-e-Mohammad chief Masood Azhar as a global terrorist at United Nations Security Council in May 2019 was a tremendous diplomatic success for Delhi which has finally escalated international pressure upon Pakistan to arrest the Islamic militants operating in their territory. India’s attempt to list Masood Azhar had been constantly thwarted by China at Security Council for several years, yet for the biggest surprise China prevented herself form vetoing the resolution to list Azhar as a global terrorist despite Beijing has stronger ties with Islamabad.
All in all, the diplomatic campaign launched by India has brought a heavy success and considering the situation sparked by the events from Pulwama attack to UN Security Council decision to listing Azhar , the ICJ verdict on Mr. Kulbushan Jadhav has become the culmination of the diplomatic chaos envisaged by Pakistan recently. However, the outcome emerging from the verdict would not entirely become a jubilant one for India and it should be noted ICJ ruling would not fundamentally bind Islamabad to handover Mr. Jadhav to New Delhi in the most submissive way.
One of the remedies India anticipated from the court was to compel Pakistan to release Mr.Jadhav and to provide him a safe passage to India. But ICJ denied granting such a remedy by claiming that their jurisdiction is confined to interpret and measure the scope of VCCR on the matter and not beyond it. In the oral submission of the counsel appeared for Pakistan at ICJ declared that Article 10 A of Pakistan Constitution has guaranteed the right to fair trial and that right to a fair trial is absolute and cannot be taken away. But Court has clearly mentioned in its verdict violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process.
Reaction came from Pakistani media after the verdict was rather misleading as they attempted to illustrate the judgment as a loss for India due to ICJ’s rejection over India’s request to release Mr. Jadhav. Yet, they avoided highlighting ICJ verdict affirming that Pakistan has breached Article 36 of VCCR, in fact the phrases filled with jingoism and popular slogans are not strange for India Pakistan affairs generally, but verdict of ICJ on Mr. Jadhav’s issue has given some negative vibes to Islamabad indicating that Pakistan is under the global gaze. Also, this has been the second case Pakistan lost internationally for past two week and the diplomatically Islamabad should play much cautiously with this unfavorable circumstances.
Punsara Amarasinghe is a PhD researcher in International Law at Institute of Law and Politics at Scuola Superiore Sant Anna, Pisa, Italy. Prof.Sanjay Rajhans is the deputy chair of Department of Public Policy at National Research University Higher School of Economics in Moscow, Russia.