Insights into Editorial: India seeks access to Jadhav

 


Insights into Editorial: India seeks access to Jadhav


kjadhav

India has again sought consular access to former Navy official Kulbhushan Jadhav now facing the gallows in Pakistan, which has not addressed 13 earlier requests for the same.

  • The decision has come at a time when the relations between the two neighbours are running through a particularly rough patch, with the two nations alleging sabotage and infiltration bids on each other.
  • India officially maintains that Jadhav had been abducted while on a business trip to Iran, and has lodged strong protests with the Pakistani government over the denial of consular access to him despite repeated requests.

 

Background:

Former Indian Naval officer Kulbhushan Jadhav, who was arrested last year in Pakistan on charges of spying, has been sentenced to death. Islamabad accused Mr. Jadhav of carrying out attacks inside Pakistan since 2014-15 but said that he will have the chance to appeal for mercy.

The death sentence comes month’s after Nawaz Sharif’s foreign advisor Sartaj Aziz said that there was not enough evidence against him. Ever since his arrest, Jadhav has been denied consular access. More worrying was instead of an open trial, Jadhav was tried in secret by military courts in Pakistan, set up to try terrorists.

 

What can India do now?

The right to consular access, encompassing the right of sending-state consuls to visit, converse with and arrange legal representation for nationals of the home-state in custody of the receiving-state, is provided for under article 36(1)(c) of the Vienna Convention on Consular Relations, 1963 (VCCR), to which both India and Pakistan are parties.

This protective work performed by the consulates-general of one state within the territory of another is necessary to ensure the wellbeing of sending-state nationals in a foreign land and is also one of the most fundamental duties a sovereign state owes its citizens.

Under the VCCR, the receiving state (Pakistan in this case) is obligated to facilitate this protection work by:

  • Promptly informing the competent consulate when one of their nationals is arrested or detained.
  • Inform the detained foreign national of his right to consular access with his home state.
  • Facilitate the protection work performed by the competent consuls in the form of visits, communications and legal arrangements made for the detainee.

 

What if Pakistan refuses?

Pakistan’s conduct in Jadhav’s case, wherein it failed to inform Indian authorities of his detention and refused to provide consular access to Indian authorities despite multiple requests, is in contravention to the obligations it has undertaken under the VCCR and international law.

  • Pakistan’s breach of international law and Jadhav’s death sentence may be effectively challenged by recourse to the ICJ. Such recourse, while not automatically available under most international agreements, is almost providentially open in Jadhav’s case by virtue of both India and Pakistan being parties to the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963.
  • The Optional Protocol, to which India and Pakistan acceded to in November 1977 and March 1976 respectively, provides that disputes arising out of the interpretation or application of the VCCR shall lie within the compulsory jurisdiction of the ICJ, and may accordingly be brought before the court by any party to a dispute.
  • The larger benefit of instituting an ICJ proceeding, however, would be the protection that it would offer Jadhav in the current situation. The ICJ, under the provisions of its statute, has ordered binding provisional measures against the execution of death sentences during the pendency of consular access disputes before it.

 

Way ahead:

The right to consular access is afforded to India under international law. At present, the government appears committed to pursuing the matter bilaterally through diplomatic representations and negotiations. Given the current ebb in relations, however, such bilateral efforts may be ill-conceived and ineffectual in securing access to Jadhav. Mindful of this, and in consideration of the mortal peril that may soon befall one of its nationals, India would be well-served in promptly initiating legal proceedings against Pakistan before the International Court of Justice (ICJ) for the violation of international law providing for consular access.

India’s recourse to the ICJ under article 1 of the Optional Protocol, and a subsequent request for provisional measures under article 41 of the ICJ Statute would be the most efficacious way of ensuring that Jadhav’s death sentence is not carried out before the resolution of the alleged improprieties and illegalities surrounding this case.