THE International Court of Justice (ICJ) has fixed the hearing of Kalbhushan case for February 19-25, 2019. The development follows the submission of the final counter memorial by Pakistan on July 18, 2018. After the award of death sentence to Kalbhushan by Field General Court Martial on April 10, 2017 India had taken the case to ICJ in May 2017 asserting that Pakistan authorities were denying India its right of consular access to Yadhav in violation of Vienna Convention. The ICJ after hearing the pleas from both sides stayed the execution of Yadhav. Since the halting of the execution India has made two written submissions to the ICJ and Pakistan accordingly has given rejoinders to them. India repeatedly requested Pakistan for consular access to the spy which was denied by the latter contending that spying and terrorism were not covered under the Vienna Convention. Similar position has also been taken by Pakistan at the ICJ. India even challenged the fairness of the trial calling it a ‘sham’. However on humanitarian grounds, Pakistan government did allow mother and wife of Kalbhushan to have an interface with him at the Ministry of foreign affairs; a gesture which did not go well with India who criticized Pakistan for handling the visit of the wife and mother of Yadhav saying they were harassed and prevented from talking to him freely. There are numerous examples at the international level where the spies have been denied consular access. The Kalbhushan case is not only related to espionage but also state sponsored terrorism as per confessions of Kalbhushan regarding his assignments and activities that the carried out to foment terrorism and insurgency in Balochistan. However, from the legal perspective it is imperative to see whether Pakistan is justified in denying the consular access to Yadhav or not.
The issue comes under the purview of national law as well as international law. Pakistan is a dualist state, ie, for international treaties signed by Pakistan to be binding on local courts; implementing legislation is required domestically through the federal legislature. From the perspective of national law, the process is considered the ratification of treaties signed earlier. Interestingly, Article 36 of the Vienna Convention on Consular Relations (VCCR) 1963, which “affords an individually enforceable right to consular access upon arrest or detention in a foreign country,” has not been transposed into domestic law by Pakistan in the Diplomatic and Consular Privileges Act of 1972. This single piece of legislation which solely talks about the ‘consular right and privileges’ does not have any binding content purporting to provide consular access to foreign nationals arrested or detained on criminal or immigration charges. Thus Pakistan was not obligated to provide Kulbhushan Jadhav consular access as per our domestic law. Furthermore, Article 36 of the Vienna Convention does not create a binding obligation on a state for providing consular access to foreign nationals arrested on criminal charges. Article 36 (2) of the said convention makes it abundantly clear that this right “shall be exercised in conformity with the laws and regulations of the receiving state” Therefore, Pakistan has acted within the ambit of its domestic law legal by not providing consular access to Kulbhushan Jadhav. Had he been granted consular access it, would have been considered an ultra vires.
Espionage is regarded inconsistent with international law since it constitutes an aggressive act against the territorial integrity of another state. Article 2(4) of the UN charter unequivocally stipulates: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Quincy Wright, a famous expert on international law said “In time of peace […] espionage and, in fact, any penetration of the territory of a state by agents of another state in violation of the local law, is also a violation of the rule of international law imposing a duty upon states to respect the territorial integrity and political independence of other states”. It is pertinent to mention that India and Pakistan also signed a treaty on consular access to prisoners known as “Pakistan-India Agreement on Consular Access, 21 May 2008”. In that treaty, both the states had agreed that the right of consular access should be subject to discretion in situations where the arrest was made on political or security grounds. Article 6 of that agreement unambiguously states, “In cases of arrest, detention or sentence, made on political or security grounds each side may examine any such case on its merit.” The agreement was signed between the two sovereign states and creates a binding obligation upon them to respect and comply with the agreed policy under the Vienna Convention on the Law of Treaties, 1969.
India has been excessively relying on the Vienna Convention Consular Rules (VCCR) 1963 in Kulbhushan’s case. However, it fails to acknowledge that Article 73 of the same Convention states” (1) The provisions of the present Convention shall not affect other international agreements in force as between States Parties to them. (2) Nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof”. Therefore, the bilateral agreements like the one Pakistan has with India is perfectly legal and would supersede anything contained in the VCCR. Hence, keeping in view the charge sheet against Kulbhushan Jadhav, his case provides serious grounds of public policy and public security as he had been accused of a string of terrorism offences as a result of which, consular access has been rightly denied to him.
Apart from the legal perspective the facts of the case and the revelations made by Kalbhushan himself have raised very serious questions about the stance taken by India on the whole issue. The spokesman of the ministry of foreign affairs in a briefing after the filing of the counter memorial sounded very confident about Pakistan’s chances of carrying the day. His confidence was premised on very pertinent questions i.e why commander Yadhav possessed a passport in the name of Hussain Mubarak Patel? If the passport was a fake document then how could he travel out of India 17 times, including from Mumbai and New Delhi? If it was real, how could he be in possession of a passport in a fake name? And if he was retired as per Indian claims then why did India fail to produce his retirement or pension papers? What will be the outcome of this battle cannot be predicted for sure but ostensibly Pakistan has a strong case. The questions posed by Pakistan would be difficult for India to answer to the satisfaction of the ICJ who believably would need authentic, credible and irrefutable evidence by India to nullify Pakistani stance on the issue.
— The writer is freelance columnist based in Islamabad.