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Kulbhushan Jadhav Case: Why India is likely to get Favourable ICJ Ruling Today

How a country deals with foreign citizens -- both as accused as well as victims of crime, reflects on the government and the justice delivery system of that nation.

Utkarsh Anand | CNN-News18

Updated:May 18, 2017, 1:51 PM IST
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Kulbhushan Jadhav Case: Why India is likely to get Favourable ICJ Ruling Today
Pakistan has denied as many as 13 requests for consular access to Jadhav that were made since his arrest (Image: NEWS18 Creatives)

New Delhi: How a country deals with foreign citizens -- both as accused as well as victims of crime, reflects on the government and the justice delivery system of that nation.

Add to this, in its readiness to comply with international treaties and conventions, one gets a fair idea of how much the country weighs its citizens' rights in the similar circumstances abroad and its own stature in the global arena.

Therefore, the maxim "do unto others as you would have them do unto you" is always a good rule to follow.

Nations have hence committed themselves to follow a set of defined rules, providing embassies and consulates the opportunity to help their citizens in times of adversity.

These obligations are contained in the Vienna Convention on Consular Relations (Vienna Convention) as well as similar treaties that countries may have bilaterally.

Under the Vienna Convention, when a law enforcement agency in a country arrests or detains a foreign citizen, the agency must ask that citizen if he or she wants his or her embassy notified of the arrest.

If they do, the agency is obligated to notify the foreign embassy or consulate without delay.

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Further, these agencies should also grant meaningful access by foreign consular officers to their arrested or detained citizens, consistent with their security regulations. And the rationale is simple: how a foreign national is treated in that country will guide other countries to treat its citizens overseas.

India is claiming its citizen Kulbhushan Singh Jadhav was denied consular access for almost a year he was in a jail in Pakistan and especially when Jadhav was being tried under stringent charges.

Jadhav, an Indian Citizen, was sentenced to death by a military court in Pakistan on April 10. He was awarded death sentence for his alleged involvement in "espionage and sabotage activities against Pakistan". There is, however, no denial of the fact that Jadhav was arrested on March 3, 2016.

On the other hand, India claims Jadhav was abducted from Iran in 2016, and that there has been no credible explanation by Pakistan how he was found there.

Besides, Pakistan has denied as many as 13 requests for consular access to Jadhav that were made since his arrest.

India approached International Court of Justice (CJI) complaining violation of Vienna Convention by Pakistan.

It sought to address the most urgent need at first instance -- to have Jadhav's execution stayed. So, while alleging the violation of Vienna Convention under Article 36, it also moved an application for 'Provisional Measures’, pursuant to Article 41 of the ICJ Statute and Articles 73, 74 and 75 of the Rules of Court, to ensure Jadhav is not executed.

The first success came for India when President of the Court, Judge Abraham issued an urgent communication to Pakistan, indicating India has moved the ICJ and the plea for 'Provisional Measures' i.e. stay of Jadhav's execution may not be frustrated before an adjudication.

Although this communication was not binding on Pakistan and it could have very well gone ahead with Jadhav's execution, Pakistan opted to contest the case in the ICJ, and rightly so because acting otherwise would have meant egregious contempt for ICJ and the countries constituting it.

Last week, the ICJ heard the counsel and agents for India and Pakistan, under the glare of international press and social media.

The way proceedings on 'Provisional Measures' have transpired, the balance is tilted in India's favour even though all three similar instances in the past have failed to bring relief to the applicant countries. Notably, the three instances involved the United States, which has a federal structure in matters of law and justice too, unlike Pakistan.

Why India should get a favourable order today at the ICJ:

1) India has been very meticulous and succinct in asking for a limited relief. What it prays for now is a stay on Jadhav's execution. If the stay is granted, not just that main relief will have to be adjudicated but India will get time to look for a diplomatic and political solution.

2) Its counsel Harish Salve has aptly pre-empted Pakistan's argument on the 2008 bilateral treaty between the two countries. While Pakistan contends India cannot be allowed to invoke Vienna Convention in the wake of the bilateral treaty, Salve has maintained that bilateral treaty cannot affect India's right to protect its citizens under the Vienna Convention. Salve was unequivocal that bilateral treaty between India and Pakistan is supposed to supplant other conventions in line with their common objectives and can't frustrate the goals.

3) Pakistan's argument that consular access is a matter of discretion for a law enforcement agency when the foreign national has been accused of spying has also been met by India. India has questioned various facts of the case, including how Jadhav was abducted from Iran, why India's repeated requests for consular access were shot down by Pakistan, a trial was conducted without informing Jadhav and without supplying a copy of the chargesheet or even the judgment. The moot point that India has appealed: Graver the charges, greater the need for continued adherence to the Vienna Convention, for it would involve the life of people and relations between States.

4) Pakistan has complained India is unwilling to explain the false passport, which bore a Muslim name and was found in Jadhav’s possession. But if Pakistan wants India to explain this, then why not grant the consular access thereby accepting India's role in the adjudication process. Pakistan may just fall in a trap of its own should the ICJ accept this argument.

5) Pakistan has also claimed that Jadhav's legal remedies have not exhausted and hence there is no "urgency" to seek "Provisional Measures". But India has successfully demonstrated there is no stay on Jadhav's execution and he could be executed any moment, necessitating the urgent intervention.

International law is as good a law as countries consider it to be. It is, after all, a law without direct sanctions and Pakistan may even choose to defy the order if it comes in India's favour. But it will do so at the peril of its international stature, obligation and future remedies that it may seek for its citizens.

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