The latest verdict in the Jadhav case underscores the importance of the provisions of the Vienna Convention on Advocacy as well as India's success in legal matters.
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On July 17, 2019, the International Court of Justice (ICJ) delivered its final verdict in the Kulbhushan Jadhav case between India and Pakistan. Ruling in India's favor with a 15-1 majority, the court also ruled that Pakistan had violated the 1963 Vienna Convention on the Procedure of Advocacy (VCCR). Legally, India has won an undisputed victory in this case, which will be explained later. However, despite the temporary relief granted by the International Court of Justice (ICJ), Kulbhushan Jadhav's arrest and death sentence remain unanswered.
The story so far: a review
Pakistan arrested Kulbhushan Jadhav on March 3, 2016 on suspicion that he was an Indian spy who had infiltrated Pakistan with the intention of carrying out subversive activities. After an unavoidable period of 22 days, India was informed of Kulbhushan's arrest. Kulbhushan Jadhav, an ordinary Indian running his own business in Iran, has been abducted and is being falsely accused of terrorism and espionage by India. To this end, India has consistently demanded that Kulbhushan Jadhav be admitted to the Indian Attorney General's Office, so that he can meet him and facilitate his legal aid. He also denied that Pakistan would seek India's help in investigating the Kulbhushan case from Delhi. Finally,
India then filed a lawsuit against Pakistan in the International Court of Justice on May 8, 2017, alleging that Pakistan was violating the 1963 Vienna Convention (VCCR). On May 18, the International Court of Justice ( ICJ ) upheld the final decision, forcing Pakistan to reverse its decision to hang Kulbhushan.
The observations made by the International Court of Justice (ICJ) in this case and the results they have given can be divided into the following three sections.
1. Pakistan failed to challenge the court and its acceptability.
Pakistan initially claimed that the case did not fall under the purview of the International Court of Justice. He went on to claim that India's side would not be heard in the International Court of Justice because India's side was not so transparent. Legal advice was also given in this case claiming that India was unable to seek legal redress as it did not assist in the search operation.
Both challenges were explicitly rejected by the International Court of Justice. The court ruled that the case was coming under the jurisdiction of the International Court of Justice (ICJ) as both countries are co-constituents of the VCCR.
2. India's victory is based on the judiciary
The VCCR Agreement is a point of contention here, according to which the Agreement was enacted to facilitate advocacy on matters relating to citizens in the countries concerned. Article 36 of the VCCR Agreement clearly states the powers of a political embassy in a country if a citizen of a country is arrested or detained or imprisoned in a foreign country.
These include the following points
- It is imperative that after the arrest of any foreigner, it is imperative to inform their counterparts in their country without delay.
- Giving the citizen of a foreign country the freedom to communicate and reach out to his lawyers.
- To meet the requirements of the Advocacy Authority and to obtain legal assistance on his behalf.
According to the International Court of Justice, Pakistan has flagrantly violated the above rights and duties of the treaty.
For the first time, Pakistan did not give Jadhav the freedom to contact his lawyer under the provisions of the VCCR agreement. Secondly, even after proving his Indian citizenship, Pakistan spent 22 days unnecessarily informing India of his arrest. Thirdly, despite repeated requests from India, he refused to contact the advocates, which is a very wrong method, and even went so far as to impose various conditions while seeking India's help in investigating the Jadhav case. The imposition of such preconditions, not only within the framework of the law, but also to persuade India to co-operate with Pakistan in this investigation, seems to have been done to force India to admit Jadhav's guilt. This is the first time that Pakistan has denied that the terms of the VCCR agreement apply to such terrorism and espionage.The provisions of the VCCR do not apply in sensitive cases (for political and security reasons) as per the 2008 bilateral agreement . The International Court of Justice, however, rejected Pakistan's claim on the ground that there was no such exception under the VCCR. He further added that if cases like terrorism or espionage were taken as exceptions, then even in controversial cases, compliance with the duties and restrictions under the VCCR would become a private matter for each country.
3. This decision, however, will not get what India wants.
The International Court of Justice granted India the status of ‘reinstated’, meaning that the appellant party was reinstated to the place where it was located. The court also held that India had not violated any of the terms of the VCCR agreement. Through this decision, the court ordered Pakistan to "immediately review and reconsider" the case of Jadhav's conviction and the sentence passed on him "at its own discretion." In this regard, Pakistan needs to keep in mind that the accused has a "full" right to a fair trial and in this case he cannot be "deprived". In addition, Jadhav should be allowed to seek the help of his advocates, as well as the consequences of violating Section 36, and if there are any biases, it should be investigated.
However, the measures required by India have not been met by the court. The International Court of Justice has not overturned the death sentence handed down to Jadhav by a Pakistani military court, nor has it ordered his extradition to India. This is understandable, as the International Court of Justice cannot play the role of a criminal appeals court in a two-nation case, and to suggest such a solution is entirely outside the jurisdiction of the International Court of Justice.
Earlier cases under section 36: Enforcement issues
Against the backdrop of this decision of the court, it would be useful to examine what the results were after the implementation of the decisions given by the court in such a case. In the VCCR, with reference to Article 36, the facts and conclusions in the Kulbhushan Jadhav case are in line with the earlier (between Germany and US) Lagrand case and ( between Mexico and US) Avena . In both cases, the International Court of Justice (ICJ) found that the United States had violated Article 36 of the VCCR and ordered an "effective review and reconsideration" of the punishment meted out to its citizens.
Unfortunately, the research paper of these cases made it clear that the actual implementation of these measures was very weak and needed to be improved. A number of U.S. rulings have argued that Article 36 cannot be applied to an internal court, and that even if this section is violated, no settlement can be reached under internal law. The so-called ‘effective review and reconsideration’ was carried out by several internal courts but did not even mention the facts found in the cases of ‘Lagrand’ and ‘Avena’. Moreover, the internal courts have ruled that section 36 cannot erase the instructions in the previous procedure, for example, if a foreigner has confessed to his crime during the period of violation of section 36, he cannot later deny it. If so,
Against this backdrop, it is now up to us to see how effective a 'review and reconsideration' of Pakistan's military tribunal will be. Although Pakistan has been instructed to give a fair trial, India will have very little control over the proceedings under which India will proceed. If the case goes to civil court, there will be some glimmer of hope, but if the case goes to military court, there will be no neutral justice. Much depends on how liberal Pakistan's approach is towards rules, principles and public international law. We cannot hope for this because Pakistan's past history has never been satisfactory in terms of compliance with international laws and regulations.
Settlement beyond the reach of the International Court of Justice
Now at this stage, if India is allowed to go to the bar, we can try to acquit Jadhav as legally as possible under Pakistani law. Apart from this, if Pakistan's decision is unsatisfactory, India has other options open to it. Although the decision of the International Court of Justice is final and cannot be appealed further, India has some issues on the basis of which we can appeal to the International Court of Justice again.
- If there is any difference between India and Pakistan in knowing the meaning and scope of the judgment of the International Court of Justice, seek an explanation of the judgment.
- If India finds any new and important facts, to demand improvement in the given results.
Even if he could not file a petition, it would provide a complementary way for India to get a little leeway on the right basis.
If Pakistan is not willing to implement the decision of the International Court of Justice, India can appeal to the UN Security Council. This committee has the power to impose certain binding measures to enforce the decision of the International Court of Justice. Of course, this action depends on the unanimous decision of the P-5, which also includes China, a close ally of Pakistan. At the individual level, India can sever political ties with Pakistan, seek revenge through consent, and publicly protest Pakistan's actions at the international level. Of course, while using these tools on behalf of India, it is also important to ensure that there is no escalation of conflict between the two countries.
Legally, India's victory in the Jadhav case is decisive, but it also clarifies what duties are binding on a country under the Vienna Convention on Advocacy. However, given the results of previous VCRs, the chances of its implementation seem slim. The Indian public has been worried about Kulbhushan Jadhav's safety since the issue was raised by the media. While India is reluctant to take advantage of political negotiations, including a 'review and reconsideration' of the Jadhav case, it is also likely to find some desired solution to the current situation.
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