COUNSELLOR ACCESS: ICJ GUIDELINES IN KULBHUSHAN JADHAV's CASE

Mitali Singh, Asian Law College, Noida

Kulbushan Jadhav and Pakistan

Kulbhushan Sudhir Jadhav (also spelt Kulbhushan Yadav) is an Indian national who was arrested in the Pakistan province of Balochistan on charges of terrorism and spying for India's Intelligence agency, the Research And Analysis Wing.

The Pakistan Government made a declaration that he was a commander in the Indian Navy who was involved in the disruptive activities inside Pakistan and he was arrested on 3 March 2016 during a counter-intelligence operation in Balochistan on the charges of Terrorism and Espionage. The Indian Government acknowledged Jadhav as a former Naval Officer but on the other hand, denied any current connections with him and also said that he took premature retirement. Jadhav remained in the custody of the Pakistani Government.

On 10th April 2017, Jadhav was sentenced to death by Field General Court Martial in Pakistan. India represented by the senior Supreme Court Advocate, Harish Salve moved to International Court Of Justice,

● Seeking a stay on his death

● Serious allegations on Pakistan for violating the 1963 Vienna Convention on consular relations.

● India had argued that consular access was being denied to its nationals.

What is Consular Access?


Consular Access is the ability of foreign nationals to have access to consulate or embassy officials of their own country in the host nation. It is nothing but the right or the ability of the foreign nationals who are arrested or detained to have the consular access. India egregiously accused Pakistan of not giving consular access to Jadhav and contended that Pakistan had violated the provisions of Vienna Convention on Consular Relations, 1963.

This treaty is an international treaty that explains the consular relations between independent states. A consul can better be explained as the representative of the foreign state in a country and who works for the interest of his countrymen in the host country.

India had demanded "immediate, unhindered and effective" consular access to Kulbhushan Jadhav from Pakistan and put serious allegations for violating the provisions of Vienna Convention on Consular Relations, 1963.

Article 36 of the Vienna Convention:

1(a) consular officers shall be free to communicate with nationals of the sending the State and to have access to them. Nationals of the sending state shall have the same freedom with respect to communication with and access to consular officers of the sending state;

(b)" if he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending state, if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any manner.

(c ) consular officers shall have the right to visit a national of the sending state who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.

To cut it short and make it more understandable, Article 36 of Vienna Convention states that foreign nationals who are detained or arrested be given notice without delay of their right to have consular access and notified about the arrest or detention. If the detained foreign national so requests, then the police must send the notice to the consulate. The notice to the consulate shall be as simple as fax, giving the person's name, place of arrest and if possible, something about the reason behind the arrest or detention.

INDIA'S PLEA:


Pakistan's Military Court had sentenced Jadhav to death on the charges of terrorism and espionage in April 2017 and also did not provide any consular access to Jadhav which led to the violation of the 1963 Vienna Convention.

India moved to the International Court Of Justice to serve it’s national, right to be heard. India approached ICJ in May 2017 against Pakistan for not providing consular access to Jadhav and for the violation of Article 36 of Vienna Convention on Consular Relations 1963. India had also challenged the "absurd" trial by the Military Court of Pakistan against the 48-year-old Kulbhushan Jadhav. The ICJ on May 18, 2017, had restrained Pakistan from executing Jadhav's death sentence till the adjudication of the case.

Basically, India based its case on two broad issues:

● the breach of the Vienna Convention on Consular Access and the process of resolution.

● Urged the ICJ to annul Jadhav's death sentence and order his immediate release from Pakistan, saying the verdict which was delivered by the Military court was based in a farcical case and it failed to satisfy even the minimum standards of due process.

ICJ GUIDELINES:


The International Court Of Justice held a four-day public hearing of the Jadhav case in February next year during which, both India and Pakistan submitted their pleas.

Instructions after hearing their pleas:

  1. The court ruled decisively in favour of India to allow full consular access to Jadhav which has been denied so far.

  2. In a 15-1 order, the ICJ upheld that Jadhav's execution will remain on hold.

  3. Directed Islamabad to "effectively review and reconsider" his conviction.

  4. The court, however, rejected India's plea for annulment of Jadhav's conviction by the Military Court in Pakistan and his immediate release.

  5. The Hague based International Court Of Justice concluded that Islamabad had violated Article 36 of the Vienna Convention of Consular Relations, 1963 by not informing New Delhi about Jadhav's arrest immediately after the Pakistan Army had taken Jadhav into custody.

  6. The court found that Pakistan deprived India of the right to communicate with and have access to Jadhav, to visit him in detention and to arrange for his legal representation and thereby breached obligations incumbent upon it under the 1963 Vienna convention.

After much delay, On September 2, Pakistan granted India consular access to Jadhav under the directions of ICJ. In December 2017, Jadhav's wife and mother were also allowed to meet him at the foreign office, but the meeting was conducted behind the glass screen.

Consular Meetings:

-Foreign Office spokesperson Mohammad Faisal declared consular Access for Jadhav will be provided on 2 September in line with the ICJ judgement and the laws of Pakistan. India's Deputy High Commissioner in Islamabad Gaurav Ahluwalia met death-row convict Jadhav.

-India had demanded "effective and unhindered" consular access to Jadhav and remained in touch with Islamabad through diplomatic channels.

-Pakistan did not permit the free and unhindered conversation.

Current Status:

-On July 17, 2020, Pakistan has offered third consular access to Kulbhushan Jadhav. This comes a day after when India stated that Jadhav was visibly under stress because Pakistan did not allow "free and unhindered" conversation between him and the consular officer.

REFERENCES:

  1. https://www.google.com/url?sa=t&source=web&rct=j&url=https://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf&ved=2ahUKEwiEjcyu_-3qAhXLc30KHQhsBG4QFjATegQIARAC&usg=AOvVaw2zhzLVmb0_XxoDzCzmkbc9&cshid=1595872584171

  2. https://www.google.com/amp/s/www.firstpost.com/world/kulbhushan-jadhav-case-pakistan-rules-out-deal-with-india-on-consular-access-says-steps-to-implement-icj-verdict-will-be-based-on-local-laws-7653561.html/amp

  3. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-6&chapter=3

  4. https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.icj-cij.org/en/case/168&ved=2ahUKEwjn_YOq_-3qAhUKbn0KHYe0B-QQFjAiegQIExAB&usg=AOvVaw0hH7mcRWr8aWe143UNeCJD&cshid=1595872613189

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