7 PM | Not the final word from Islamabad and Delhi | 10th August, 2019

Context: The recent judgment by International Court of Justice (ICJ) in Kulbhushan Jadhav case.

More in News: The International Court of Justice on 17th July 2019 asks Pakistan to review conviction and sentencing of Jadhav, rules in favour of consular access.

History of the case:

  • Kulbhushan Jadhav (alias Hussain Mubarak Patel) is an Indian national arrested in Balochistan, Pakistan, over charges of terrorism and spying for the Research and Analysis Wing intelligence agency. Pakistan claims Jadhav of being tasked by Indian agencies to organise espionage and sabotage activities on its soil, which have been denied by India and other countries.
  • The Indian government recognizes Jadhav as a former naval officer, however denies his links with the government; and maintains that he took premature retirement and was possibly abducted from Iran.
  • On April 10, 2017, Jadhav was sentenced to death by the Pakistan Court. 
  • India approached the International Court of Justice (CJI) on May 8, 2017. The CJI ruled that Pakistan’s treatment of Jadhav is a gross violation of international laws and stalled his execution.

Recent Judgment:

  • Pakistan was guilty of multiple violations of the Vienna Convention on Consular Relations (VCCR) by failing to inform Mr. Jadhav of his rights under Article 36 of the treaty, by neglecting to notify India of his arrest without delay, and by denying him consular access.

International Court of Justice (ICJ):

  • The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN).
  • It was established in June 1945 by the Charter of the United Nations and began work in April 1946.
  • The seat of the Court is at the Peace Palace in The Hague (Netherlands).
  • The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.
  • The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council.

Vienna Convention on Consular Relations (VCCR):

  • The Convention was adopted in 1963 by the United Nations Conference on Consular Relations held at Vienna, Austria with a belief that an international convention on consular relations, privileges and immunities would also contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems. 
  • The Conference also adopted the Optional Protocol concerning Acquisition of Nationality, the Optional Protocol concerning the Compulsory Settlement of Disputes.

The International Covenant on Civil and Political Rights (ICCPR):

  • It is an international human rights treaty adopted by the United Nations (UN) in 1966.
  • It is one of the two treaties that give legal force to the Universal Declaration of Human Rights (the other being the International Covenant on Economic, Social and Cultural Rights, ICESCR).
  • ICCPR commits the states signed up to it to protect and respect the civil and political rights of individuals. 
  • The ICCPR obligates countries that have ratified the treaty to protect and preserve basic human rights, such as: the right to life and human dignity; equality before the law; freedom of speech, assembly, and association; religious freedom and privacy; freedom from torture, ill-treatment, and arbitrary detention; gender equality; the right to a fair trial; right family life and family unity; and minority rights.

The Case:

  • India’s case hinged on Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees individuals the right to a fair trial. 
  • However, the ICJ chose to hinge its jurisdiction in this case on Article 1 of the Optional Protocol to the VCCR, which grants the ICJ compulsory jurisdiction only over disputes arising out of the application or interpretation of the Consular Convention. 
  • ICJ denied India’s prayer to set aside Mr. Jadhav’s conviction by the military tribunal, and for his release.
  • Instead, it ruled that the appropriate remedy would be for Pakistan to carry out an “effective review and reconsideration” of the tribunal’s conviction and sentence.

ICJ judgment is a bitter pill to swallow for both India and Pakistan:

  • For Pakistan, making a significant alteration to its legal system would amount to an admission that the ICJ’s judgement was a public admonition of Pakistan’s judicial review mechanism: a prospect Pakistan is unlikely to welcome.
  • For India, any review mechanism that fails to acquit Mr. Jadhav will be seen as procedurally unsound, and an attempt by Pakistan to further shirks its international legal responsibilities.

Conclusion: The publication of the International Court of Justice’s award in the Kulbhushan Jadhav case on July 17, 2019 was heralded by both India and Pakistan as a victory to their side; the truth probably lies somewhere in between. There are already signs that the Kulbhushan Jadhav case between Pakistan and India might return to the ICJ.

Source: https://www.thehindu.com/opinion/op-ed/not-the-final-word-from-islamabad-and-delhi/article28968924.ece

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