Kulbhushan Jadhav: Pakistan Stands on the Wrong Side of Law
India can approach International Court of Justice seeking reversal of death sentence awarded to Kulbhushan Jadhav.
The sentencing of Kulbhushan Jadhav by Pakistan’s Field General Court Martial is miscarriage of criminal justice violating the fundamental human rights of free and fair trial. The issue with international human rights law is that though it created a treaty obligation, it does not really create any international obligation vis-à-vis another state.
Another problem with the violation of international human rights law is that there is no international judicial forum for such violation to be challenged by a State, albeit mechanisms are there for an individual to challenge a domestic court’s verdict, viz, European Court of Human Rights and Human Rights Council.
Such bodies can be only accessed by individuals provided their States have signed such international instruments.
However, India can take help from the UN and bring this matter before the International Court of Justice as a matter of violation of treaty obligation owed to India, therefore, creating an international obligation for Pakistan. Let’s see, how.
Vienna Convention on Consular Relations
The obligation in this case flows from the Vienna Convention on Consular Relations, 1963 (the Treaty), which came into force on 19 March 1967. India and Pakistan both signed and ratified the Treaty on 28 November 1977 and 14 April 1969 respectively.
The Treaty also has an ‘Optional Protocol’ to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963 (the Protocol). The Protocol entered into force on 19 March 1967. Interestingly both India and Pakistan are parties to this protocol too. The two countries became party to the Protocol on 28 November 1977 and 29 March 1976 respectively.
Two Different Vienna Conventions
It is imperative here to underscore the distinction between the two Vienna Conventions, one pertaining to diplomatic relations while the other one relates to consular relations.
1) The Vienna Convention on diplomatic relation are rules protecting the ambassadors by authorising them to carry out their duties in the Mission established in the receiving State.
2) The Consular Relations Convention deals with the establishment of consular post and empowering the consular to discharge its function as enumerated in Article 5 and Article 36 thereof, Article 5 of the treaty provides for the consular functions.
Subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests.Article 5, Consular Relations Convention
Article 36 provides for the right of the consular to communicate and contact the nationals of the sending States.
Consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State.Article 36, Consular Relations Convention
Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.Article 36, Consular Relations Convention
Approaching the International Court of Justice
India shall take this matter to the International Court of Justice (ICJ) because it is the only forum offering a ray of hope in Kulbhushan Jadhav’s case. India can take this matter to the ICJ under the protocol as both the countries have ratified it.
The protocol provides for compulsory jurisdiction of the ICJ for resolution of any dispute arising between parties of the treaty. It will be a sheer waste, being a member of the UN, if we don’t take recourse to it. India can invoke the jurisdiction of the ICJ from the protocol and not under Article 36, ICJ statute.
Earlier Precedents at the ICJ
There are three precedents at the ICJ where a national of another State has been prosecuted and sentenced, where both are parties to the treaty and the protocol. First is the instance of a dispute, Paraguay vs USA in 1998. The next in line is the dispute, Germany vs USA, 1999, it is also known as the La Grand case.
Lastly, the case of Mexico vs USA, 2003, also known as the ‘Avena and Other Mexican National’ case.
All the cases involved the death penalty awarded by the USA to the nationals of Paraguay, Germany and Mexico in violation of the treaty. Interestingly, all the petitioners, i.e. Paraguay, Germany and Mexico were provided with relief they were seeking, i.e. an injunction on the death penalty. Court ordered the USA not to carry out the execution till the issue of merit is settled.
India Has a Strong Case
Pakistan stands on the wrong side of the law in the case, first the trial itself is violative of the international human rights law. Secondly, Pakistan has violated Article 36 of the treaty; in the La Grand case, the ICJ had decided that violation of Article 36 requires a review and reconsideration of both the conviction and the sentence in this case (La Grand, 1999, ICJ, para 496-97).
La Grand also stated that no domestic law can deprive the right of an individual “which guarantees that full weight is given to the infringement of his rights as set forth in the convention”.
Let’s not make the UN membership a ceremonial exercise or use it as a platform for political rhetoric. Here is a chance we can use this platform to save a precious Indian life, let UN be useful to us.
(The writer is an author of the book Indian Capital Market: Legal Regime and currently a PhD fellow at Albrecht Mendelssohn Bartholdy Graduate School of Law, University of Hamburg. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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