Kulbhushan Jadhav

The Curious Case of Kulbhushan Jadhav- Part I

by Ragini Gupta*

On April 10, 2017, Pakistan’s Inter-Service Public Relations announced that Kulbhushan Jadhav, a retired Indian navy officer, had been tried before a military court and awarded the death sentence ‘for involvement in espionage and sabotage activities against Pakistan’. [1] The Indian external affairs ministry reacted strongly to this announcement, describing the court proceedings that led to the death sentence as “farcical,” further stating that the death sentence, if carried out, would be regarded as “pre-meditated murder.”[2] A bitter controversy has ensued: In India, parliamentarians from the opposition and the government have proclaimed that Jadhav is innocent, with the Pakistan military court being referred to as a ‘banana court’[3]” on the other hand, the Prime Minister Advisor on Foreign Affairs in Pakistan claimed that the trial was carried out in a “fully transparent manner,” and the sentence based on “credible, specific evidence.[4]” On April 14, India sought consular access to Jadhav, citing international law and humanitarian considerations. This, however, was denied for the 14th time since Jadhav’s arrest in March last year. Subsequently, India initiated proceedings against Pakistan in the International Court of Justice, accusing it of violating the Vienna Convention on Consular Relations, 1963, and sought, at the same time, provisional measures against Jadhav’s execution. On May 18, the ICJ passed an order placing a stay on the execution until the final judgment in the case. In this post, we shall discuss the international law pertaining to right to consular access and its applicability to the present controversy.

The International Law on Consular Access

Until May 8, 2017, all action taken by the Indian government in relation to this issue was through diplomatic means. However, there existed a legal remedy as well. Both India and Pakistan are parties to the Vienna Convention on Consular Relations, 1963 (“VCCR”) [5]. Consular functions, broadly speaking, consist of protecting the interests of a state and its nationals in the territory of another state [6]. Article 36 (1) (c) of the VCCR provides that consular officers shall have the right to visit a national of the sending State (in this case India) who is in prison, custody or detention to converse and correspond with him and to arrange for his legal representation. Also, communication addressed to the consular post by a person who has been detained is required to be forwarded by the authorities in the receiving State (in this case Pakistan)[7]. Importantly, these authorities have been placed under an obligation to inform such a person of his rights without delay. Despite India’s repeated requests, Pakistan has denied India consular access to Jadhav. Indeed, at this time, the Indian authorities are not even aware of Jadhav’s exact location in Pakistan.[8] This should constitute a breach of Pakistan’s obligations under the VCCR.[9]

It is pertinent to note that besides being parties to the VCCR, India and Pakistan had entered into a bilateral agreement on consular access on May 21, 2008. According to this agreement, each Government is required to “provide consular access within three months to nationals of one country under arrest, detention or imprisonment in the other country.”[10] It is interesting to note that the practice between India and Pakistan with respect to this Agreement has been inconsistent, and it is not as if the obligations it lays down have always been ignored. In January this year, India and Pakistan exchanged lists of nationals[11]of each country lodged in the jails of the other, consistent with the provisions of the Agreement. In fact, in 2012, in a Joint Statement issued by India and Pakistan, Ministers from both States agreed that the Agreement on Consular Access should be implemented in letter and spirit.[12]

This Agreement also contains a rather vaguely worded provision stating that in case of arrest, detention or sentence made on political or security grounds, “each country may examine the case on its merits”. It is this provision which Pakistan has relied on, asserting that India’s request for consular access in this case “would be decided on the basis of merit.”[13] Considering that the VCCR contains a provision to the effect that provisions of the Convention “shall not affect other international agreements in force as between States Parties to them,” it could possibly be argued that this situation would be governed by the 2008 Agreement, and Pakistan has not violated its obligations under international law. On the other hand, it can also be argued that such an interpretation, which essentially allows a State party to unilaterally decide when and when not to honour its obligations, defeats the very purpose of entering into an agreement in the first place, would deprive the Agreement of any legal effect and is hence impermissible. It can also be argued that while the Convention expressly provides that States are not precluded from concluding international agreements “confirming or supplementing or extending or amplifying the provisions thereof,[14]” it does not say the same for agreements that diminish or lower the standards it lays down, leading to the conclusion that to interpret the 2008 Agreement as Pakistan is doing is impermissible by implication. A detailed analysis of this question will be discussed in another blog post. For now, it is sufficient to say that this issue deserves to be resolved judicially, and pending the judgment by the ICJ, the provisional measures are likely to save Jadhav’s life, at least until the final order is passed by the ICJ.

Why is Consular Access crucial?

Consular Access is not a mere formality. It can have massive consequences for people who have been detained in foreign countries, and this is more so in cases involving capital offences, such as this one. The assistance that a consulate can provide is ‘unique;[15] ’it can provide an explanation of the receiving state’s legal system along with an explanation of how that system differs from the sending state’s system, assistance which can be invaluable because cultural misunderstandings can lead a detainee to make mistakes in how he interacts with law enforcement officials and judges.[16] Most importantly, the consulate can help a defendant in obtaining evidence or witnesses from the home country that the detainee’s attorney may not know about or be able to obtain.[17] Further, consular agents, in their visits, can also determine whether nationals have faced physical abuse and whether they are being detained in adequate conditions.[18] The fact that foreign nationals are placed at a natural disadvantage [19] when accused of a capital offence has been acknowledged: Christopher Heyns, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (‘UNSRESAE’) has observed that foreign nationals remain disproportionately affected by the death penalty in several States.[20] He further stated that it can be ‘empirically shown that the provision of consular assistance can materially diminish the likelihood of the imposition of a death sentence.[21]’

Thus it is possible that had Jadhav been given consular access earlier, as India has been requesting all along, he may never have been sentenced to death in the first place. Now, Jadhav has been given the right to appeal against his death sentence within 60 days[22] and to arrange consular access for him has become even more crucial at this point because, for the reasons explained above, doing so will enable him to make use of this right effectively. As things are, presently India has not even been supplied with a copy of the judgment by which Jadhav was held guilty and sentenced to death, making it impossible to verify the claim that the trial was fair. In this situation, consular access is critical and repeated requests through diplomatic means have failed. What, then is the legal alternative? In the next post we shall discuss the provisional measures that the ICJ has allowed in cases like these and how they may come to the rescue of a person facing capital punishment in a foreign state.

[*Ragini Gupta is a fourth year student at National Law University, Jodhpur. Her areas of interest include public international law and intellectual property rights. She can be contacted at raginigupta615@gmail.com.]

……………………..

[1] https://www.ispr.gov.pk/front/t-press_release.asp?id=3906&print=1#pr_link3906

[2] India says Kulbhushan Jadhav’s trial by Pakistan farcical, hanging will be ‘premeditated murder’, HINDUSTAN TIMES ( April 15, 2017) available at http://www.hindustantimes.com/india-news/kulbhushan-jadhav-trial-by-pakistan-farcical-india-says-hanging-will-be-premeditated-murder/story-J8vAKFhLXaZTcHonWHcHrL.html

[3] Rohini Chatterji,The Entire House Is With Him‘: How Kulbhushan Yadav United A Bickering Parliament, THE HUFFINGTON POST (April 11, 2017) available at http://www.huffingtonpost.in/2017/04/11/the-entire-house-is-with-him-how- kulbhushan-yadav-united-a-bi_a_22034723/

[4] Pakistan makes details of Kulbhushan Jadhav trial public, rubbishes Indian allegations, THE NEWS ( April 14, 2017) available at https://www.thenews.com.pk/latest/198581-Pakistan-makes-details-of-Kalbushan-Jhadav-trial-public-rubbishes-Indian-allegations

[5] The Convention can be accessed here: http://www.fuech.eu/pdf/viennaconvention.pdf

[6] Cindy Galway Buys et al., Do unto Others: The Importance of Better Compliance with Consular Notification Rights, 21 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW 461-502 (2011)

[7] Article 1 (b), VCCR

[8] Nayanima Basu, Jadhav case: India makes another consular access request to Pakistan, THE HINDU BUSINESSLINE (April 14, 2017) available at http://www.thehindubusinessline.com/news/jadhav-case-india-makes-another-consular- access-request-to-pakistan/article9640436.ece

[9] Obviously, at this point it is not possible to know whether the competent authorities notified Jadhav of his right to seek consular access.

[10] Agreement between India and Pakistan on Consular Access, clause (iv) [ Those interested in reading the text of the Agreement can access this report and turn to page 1329: https://www.mea.gov.in/images/pdf/main_2008.pdf]

[11] Exchange of Lists of Prisoners between India and Pakistan (January 1, 2017) available at http://mea.gov.in/pressreleases.htmdtl/27884/Exchange_of_Lists_of_Prisoners_between_India_and_Pakistan

[12] Joint Statement issued by India and Pakistan during the visit of External Affairs Minister to Pakistan (September 8, 2012) available at http://mea.gov.in/bilateral-documents.htmdtl/20530/Joint+Statement+issued+by+India+and+Pakistan+during+the+visit+of+External+Affairs+Minister+to+Pakistan

[13] Consular access to Kulbhushan Jadhav to be decided on ‘basis of merit’: Pakistan, HINDUSTAN TIMES ( April 21, 2017) available at http://www.hindustantimes.com/india-news/consular-access-to-kulbhushan-jadhav-to-be-decided-on-basis-of-merit-pakistan/story-wa8tITnpa0BOZCFtV1qt1O.html

[14] Article 73

[15] Supra note 6

[16] This is an observation that was made by a U.S. court in the case of Osagiede v. U.S., 543 F.3d 399, 403 (7th Cir. 2008)

[17] Id.

[18 ] S Adele Shank and John Quigley, ‘Foreigners on Texas’s Death Row and the Right of Access to a Consul’ (1995) 26 ST MARY’S LAW JOURNAL 719, 720

[19] Id.

[20] Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, GA Res 67/168, UN GAOR, 70th sess., Agenda Item 73(b), UN Doc A/70/304 (7 August 2015).

[21] Ibid.

[22] Kulbhushan Jadhav has right to appeal against death sentence within 60 days: Pak, HINDUSTAN TIMES ( April 16, 2017) available at http://www.hindustantimes.com/india-news/kulbhushan-jadhav-has-right-to-appeal-against-death- sentence-within-60-days-pakistan-defence-minister/story-0x2QN1rkd4ddml0S12jkWJ.html

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