The much deliberated case of Kulbhushan Jadhav, a commander in the Indian Navy arrested on charges of involvement in espionage and terrorist activities in Pakistan as an Intelligence Agent of RAW has once again brought to light the various jurisdictional and legal issues that arise in international law and its applicability over independent sovereigns. The ICJ in the present matter has convened a special hearing under Article 74 of the Court Rules which gives it the power to the President, currently Ronny Abraham J. to act in a manner that will enable the Court to take provisional measures.
This is the fourth time India and Pakistan are appearing against each other before the ICJ, The first being in 1972 over the Jurisdiction of International Civil Aviation Organization (ICAO), the second being in 1973 regarding the Trial of Pakistani Prisoners of War, and the third in 1999 which was the Ariel incident of 10 August of 1999.
India has come before the Court under Article 36(1) of the Statute of the Court that confers the ICJ jurisdiction over all cases which the parties refer to it, especially matters for which treaties and conventions are in force.
The present case concerns Article 36(1) of the Vienna Convention on Consular Relations (VCCR) of which both India and Pakistan are parties. This Convention that came into existence on 24th April, 1963 is an attempt at promoting international peace and security believing that an international convention on consular relations, privileges and immunities would further the cause for which the United Nations was established, that is peace among nations. This convention does not aim at benefitting individuals but to ensure sovereignty of States over their subjects, so that rule of law prevails.
Sub-clause (c) of this Article grants consular officers the right to visit and arrange for legal representation to a national of their State who is in prison, custody or detention. India has filed an application contending it was not informed of Jadhav’s detention until long after his arrest and Pakistan failed to inform the accused of his rights. They have further violated the Vienna Convention by denying India its right of consular access to Mr. Jadhav, despite repeated requests and it was only from a press release that we found out about the death penalty imposed by the military court.
India thus alleges not only the violation of the VCCR but also of Article 14 of the International Covenant on Civil and Political Rights (1966) that bestows upon every individual, the right to a fair and public hearing by a competent, impartial and independent tribunal.
What is now to be seen is what prevails, the power of justice and fair trial, or the impunity of a sovereign state for its actions taken in its territory. Will India succeed in obtaining a suspension from his death sentence, and would it have been of use will be answered by two different courts, with powers though unique but unmatched by the other.