Kulbhushan Jadhav ICJ Verdict: What India Got and Where Failed

KULBHUSHAN JADHAV ICJ CASE VERDICT: WHAT INDIA GOT AND WHERE FAILED 

Author: Mr. Shivam Sharma, IME Law College, Delhi.

According to me the decision given by the ICJ in the Kulbhushan Jadhav case is a huge step towards ensuring a globally just society. International organizations like the UN and ICJ play a very important role in maintaining global relations between different nations across the globe. Herein as well, the ICJ reaffirmed people’s faith in the international justice system by prioritizing human rights, rule of law and due process. However, a major issue that went unaddressed is that of the execution of the said decision. The decision given by international organizations are not always binding and their enforcement power is often subject to various conditions. Thus, powerful countries often end up not adhering to their judgments as done by China. Further, the facts that act of Pakistan of trying him under military laws in a military court was a clear violation of the rules laid down in the Vienna Convention and provisions of ICCPR indicate that a stricter action should have been taken against Pakistan. The court should have laid down clearer guidelines and procedures as to what is to be done further in view of the given circumstances to ensure that henceforth Jadhav’s rights are respected. Nevertheless, granting consular access to Jadhav alongside an order of review of the death penalty awarded to him is a small yet significant victory in itself.

The judgment to effectively reconsider and review the death sentence to Kulbhushan Jadhav by Pakistan’s Military Court, who is accused on charges of espionage and terrorism in Pakistan, is considered a major international win for Indian Government, especially after continuous pressure by Indian Government on Pakistan to mend its ways with India in recent times. ICJ’s decision has upheld the sanctity of the Vienna Convention once again and reiterated that no nation can take arbitrary and unreasonable actions with nationals of other nations. The procedure has to be followed by all signatories of the convention is once again well established.

However, not all went in India’s favor. The order does not favor India’s argument to annul Pakistan’s court order on a death sentence. The reason given by the International Court was that the conviction and sentence of Mr. Jadhav do not form a part of the violation of Article 36 of the Convention. The Court should have considered the sentence on its merits too. Nevertheless, strong-worded order should play a major role in the further development of the case.

According to me that the verdict given by ICJ is absolutely relatable and just as no provision of Vienna Convention aims, directly or indirectly, at the exclusion of the point of consular access and restriction of any right of an accused.

In my opinion, there are even no sufficient bases behind the objection raised by Pakistan pertaining to the bilateral agreement between Indian and Pakistan which restricts India from approaching ICJ for such matters.

The stay on the execution by Pakistan till the final adjudication is made has been rightly put forward by the unanimous decision of ICJ.

Since Pakistan is also the signatory of the Vienna Convention, Pakistan has to legally comply with the provisions of Vienna Convention.

However, the verdict has given a moral victory to India but on the other side, Pakistan can stick to its objection regarding the jurisdiction of ICJ to adjudicate the matter in their final arguments when they will be held.

I feel that such disobedience by Pakistan would look terrible in the international frame but it would give a sense of satisfaction to Pakistan for winning on the stride of immorality. 

So in my opinion, if Pakistan complies with the orders of ICJ and mandates the procedure by providing consular access to Kulbhushan Jadhav, then it would be a great decision for Kulbhushan Jadhav as he would get a day more to get his innocence proved and return back. But, having said that, if Pakistan doesn’t comply, then it would only remain as a moral victory for India and nothing for Kulbhushan Jadhav.

According to me that the decision given by the ICJ in the Kulbhushan Jadhav case is a huge step towards ensuring a globally just society. International organizations like the UN and ICJ play a very important role in maintaining global relations between different nations across the globe. Herein as well, the ICJ reaffirmed people’s faith in the international justice system by prioritizing human rights,  rule of law and due process. However, a major issue that went unaddressed is that of the execution of the said decision. The decision given by international organizations are not always binding and their enforcement power is often subject to various conditions. Thus, powerful countries often end up not adhering to their judgments as done by China. Further, the fact that the act of Pakistan trying him under military laws in a military court was a clear violation of the rules laid down in the Vienna Convention and provisions of ICCPR indicate that a stricter action should have been taken against Pakistan. The court should have laid down clearer guidelines and procedures as to what is to be done further in view of the given circumstances to ensure that henceforth Jadhav’s rights are respected. Nevertheless, granting of consular access to Jadhav Pakistan had 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 with no sufficient grounds to do so, thereby Pakistan breached obligations incumbent upon it under the Vienna Convention. The bench ruled that Pakistan had violated India’s rights to consular visits after his arrest. Alongside an order of review of the death penalty awarded to him is a small yet significant victory in itself.

• What went in favor of India?

● Suspension of the death sentence by the Pakistani military court.

● Directed Pakistan to review the entire trial process. 

●Consideration of breach of obligation by Pakistan under Article 36 of the Vienna Convention on consular relations

• What went against India?

●Non-acceptance of annulling the military court.

●Nonacceptance of India’s argument to direct Pakistan to provide a safe passage for Kulbhushan Jadhav to return home.

Thus, after evaluating both sides we can easily say that the verdict given by ICJ is a diplomatic victory for India.

What if Pakistan does not adhere to the guidelines of ICJ?

International Court of Justice on July 17th, 2019 gave its verdict on the Kulbhushan Jadhav’s case. The verdict was given with a ratio of 15:1 where the only dissenting opinion was of the judge of Pakistan. 

The court held that Pakistan must inform Kulbhushan about his rights and provide him with consular officers of India for proper legal representation in accordance with the Vienna Treaty.  The court also held that there will be a stay order on the death sentence of Kulbhushan Jadhav given by the military court of Pakistan. 

The court did not uphold India’s contentions to annul the decision of the military court and handover Kulbhushan to India.

We all are happy and proud that the decision of ICJ favored India but what if Pakistan disobeys the guidelines? The ICJ can implement its decisions through the UN Security Council but will it do so? Security Council comes into action only when it sees international peace at stake. The countries that are permanent members of the UN can use their veto power (maybe China) to stop the implementation of the decision. So what will India do then is the real question?