Dr. Syama Prasad Mookerjee Research Foundation

The Kulbhushan Jadhav Case at the International Court of Justice

In March 2016, Kulbhushan Sudhir Jadhav, an Indian national, was detained by Pakistan, accused of performing acts of espionage and terrorism on behalf of India. In April 2017, he was sentenced to death by a military court in Pakistan. On 8 May 2017, India filed a case against Pakistan at the International Court of Justice or ICJ in The Hague, alleging violations by Pakistan of its obligations under the Vienna Convention on Consular Relations of 1963. Article 36 of the Convention specifically required Pakistan to inform India, “without delay”, of the detention of Kulbhushan Jadhav, inform Kulbhushan Jadhav of his rights, and allow Indian consular officials access to Kulbhushan Jadhav.

Pakistan rejected India’s claims by using a variety of legal arguments during the hearing of the case at the ICJ. On 17 July 2019, the ICJ delivered its judgement, stating that the “Court finds that the Islamic Republic of Pakistan, in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav, has acted in breach of the obligations incumbent on it under Article 36 of the Vienna Convention on Consular Relations.”

In the landmark judgement, the ICJ unanimously asserted that it had jurisdiction over the case, since both India and Pakistan were signatories of the Vienna Convention. The ICJ rejected Pakistan’s efforts to divert the case to either an arbitral tribunal or a conciliation commission, holding that India had the right to approach the ICJ directly in this matter. The ICJ rejected Pakistan’s argument that the Vienna Convention did not apply to cases of persons detained for alleged espionage. The Court found that Pakistan, by not informing India for three weeks of Kulbhushan Jadhav’s arrest, and not providing India consular access, had violated its obligations under the Vienna Convention which required it to do so “without delay”. The ICJ rejected Pakistan’s attempt to apply its obligations under Article 36 of the Vienna Convention in a conditional manner, dependent on India’s actions on other issues.

The heart of the ICJ judgment is contained in Section 6, which recommends ways to remedy this violation of the Vienna Convention by Pakistan. Calling Pakistan’s denial of its obligations to uphold Kulbhushan Jadhav’s rights, including the right to consular access, “internationally wrongful acts of a continuing character”, the ICJ has asked Pakistan to comply with both obligations. It has opined that the “appropriate remedy in this case to be effective review and reconsideration of the conviction and sentence of Mr. Jadhav”, which “must be performed unconditionally” by Pakistan. This would include Pakistan “enacting appropriate legislation” if needed to ensure justice. Till then, the ICJ has ordered the “continued stay of execution” as an “indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav.”

As Prime Minister Narendra Modi said after the judgment, “Truth and justice have prevailed. Congratulations to the ICJ for a verdict based on extensive study of facts. I am sure Kulbhushan Jadhav will get justice. Our Government will always work for the safety and welfare of every Indian.”

The ICJ judgement is significant for at least three reasons. First, the judgement is binding on “the parties and in respect of that particular case” according to Article 59 of the ICJ Statute. Second, the judgement vindicates India’s consistent belief and advocacy in using the rule of law to ensure justice for her citizens, and the peaceful settlement of disputes between states. Third, implementing the judgement will act as a litmus test for the principle of international cooperation, on which the current multilateral system, including the rule of law, is founded.

In the wider framework, the ICJ judgment embellishes India’s track record since 1947 of giving substance to Article 13.1 of the UN Charter, which calls for “the progressive development of international law and its codification”. The provisions of the Vienna Convention on Consular Relations have been significantly amplified by this case.

(The writer is a former Permanent Representative of India to the United Nations, This has already been broadcasted by All India Radio)