India v. Pakistan
Click on the PDF link below for the full version including footnotes.
Introduction
The case of India v. Pakistan occurred at a time of growing tension between India and Pakistan, with both countries building stronger alliances and armies to rival each other. Since the partition of British India and the creation of India and Pakistan, the two countries have disputed over territories, including the most disputed, Jammu & Kashmir. The two countries, similar to the Soviet Union and the United States, rivaled each other in the nuclear arms race among others, and have continued to pit themselves against each other, creating tension on the border and between citizens.
Facts
Mr. Jadhav has been in Pakistani custody since March 3, 2016. The circumstances of his arrest are disputed by Pakistan, his prosecutor, and India, his home country. India claims that Mr. Jadhav was kidnapped when he was in Iran and illegally held in Pakistan for interrogation in captivity. Pakistan claims that Mr. Jadhav was committing acts of terrorism and espionage on behalf of the Indian government and was subsequently arrested near the Pakistani-Iranian border for illegally entering Pakistani territory possessing a fake Indian passport with the name “Hussein Mubarak Patel” at the time of his arrest. India denies these allegations completely.
Also, on March 25, 2016, Pakistan raised an issue with the High Commissioner of India in Islamabad, wherein they released a video in which Mr. Jadhav is shown to confess to crimes involving espionage and terrorism of behalf of India’s Research and Analysis Wing (RAW, for short) within Pakistani territory. The video was reviewed but it cannot be determined whether Mr. Jadhav was acting of his own free will or under the influence of external forces. Pakistan also notified the permanent members of the Security Council of the United Nations of the incident on the same day. Also that day, through a Note Verbale from the High Commission of India to the Ministry of Foreign Affairs in Pakistan, India acknowledged the “purported arrest of an Indian” and requested consular access “at the earliest” to “the said individual.” India has since sent more than ten Notes Verbales in which it identified Mr. Jadhav as a national of its country and requested consular access to him
Legal Background
First, the Court identified that India and Pakistan have been members of the Vienna Convention since December 28, 1977 and May 14, 1969 respectively, and at the time of their joining, they were both present to the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Dispute without raising any particular concerns. India wanted to seek the Court’s opinion on Article 36, paragraph 1, of the Statute and on Article I of the Optional Protocol, which states that any international dispute from the Convention must be resolved by the International Court of Justice.
Pakistan raised three objections to India’s argument, involving India’s “alleged abuse of process, abuse of rights, and unlawful conduct.”
Pakistan’s first objection was that India allegedly abused the process of law that needs to be followed. They mention that India failed to bring the Court’s attention to the existence of a constitutional right to create a clemency position, which means to grant someone a pardon for their crimes. Furthermore, on May 8, 2017, India did not consider the other dispute settlements in Articles II and III of the Optional Protocol. The Court rejected this argument.
Pakistan’s second objection focused on India’s alleged abuse of rights under International Law, in which they offered three main sub-arguments. The first sub-argument Pakistan used was that India refused to provide evidence for Mr. Jadhav’s Indian nationality with a passport containing his real name, even though they were legally obligated to do so. The second sub-argument was that India failed to request assistance into the criminal investigation of Mr. Jadhav and his activities in Pakistan. The third and final sub-argument Pakistan used was that India provided Mr. Jadhav with a fake passport so that he could perform acts of espionage in the country of Pakistan; Pakistan attempted to invoke counter-terrorism obligations created in UN Security Council resolution 1373. The Court rejected this argument as well.
Pakistan’s third objection involved asking the Court to dismiss the application solely due to India’s alleged unlawful conduct. Pakistan claimed that India did not respond when Pakistan requested assistance with the investigation into Mr. Jadhav, and that India provided Mr. Jadhav with a fake passport to enter Pakistan and used him to conduct illegal acts of espionage within Pakistan. The Court also rejected this third and final argument.
On the other hand, India claimed that Pakistan violated Article 36 of the Vienna Convention in three major ways: by not informing Mr. Jadhav of his rights under Article 36; by not informing India of the arrest and custody of Mr. Jadhav without delay; and by denying Indian consular officers access to Mr. Jadhav as is their legal right.
Regarding India’s first point, that Pakistan did not inform Mr. Jadhav of his rights under Article 36 of the Vienna Convention, paragraph 1(b) of Article 36 states that “the competent authorities of the receiving State must inform a foreign national in detention of his rights under that provision.” Pakistan, however, claimed that the Convention did not apply to espionage. From this, the Court concluded that Pakistan did not inform Mr. Jadhav of his rights under Article 36, paragraph 1(b) of the Vienna Convention.
In India’s second point, India claimed that Pakistan did not inform India of the arrest and detention of Mr. Jadhav “without delay.” Article 36, paragraph 1(b) of the Vienna Convention affirms that “if a national of the sending State is arrested or detained, and ‘if he so requests,’ the competent authorities of the receiving State must, ‘without delay,’ inform the consular post of the sending State.” The Court considered the fact that Pakistan notified India of the arrest of Mr. Jadhav three weeks after the arrest date, and deemed this to be a direct breach of Article 36, paragraph 1(b) of the Vienna Convention.
In India’s third and final point, India maintained that Pakistan did not provide consular access to Mr. Jadhav. Ultimately, the Court concluded that Pakistan breached its obligations under Article 36, paragraphs 1(a) and 1(c) of the Vienna Convention, by denying Mr. Jadhav the right to his consular officers and for them to speak with him and arrange his legal representation.
Holding & Reasoning
The International Court of Justice rejected the arguments of the Islamic Republic of Pakistan unanimously and accepted the arguments presented by the Republic of India. Therefore, because Pakistan did not inform Mr. Jadhav of his rights under the Vienna Convention, nor allow him to meet with his Indian consul or converse with them, a review must be made of the conviction and sentence of Mr. Jadhav. However, Judge ad hoc Jillani did dissent, finding India’s arguments inadmissible and arguing that the purpose of Mr. Jadhav’s alleged entrance into Pakistan was to commit acts of espionage and to undermine the Islamic Republic.
Analysis
The Court’s interpretation of the law was correct. Mr. Jadhav should have received proper counsel, Indian authorities should have been notified, and Pakistan’s attempt to portray Mr. Jadhav as a spy was questionable. Even if Mr. Jadhav was a spy, not notifying the Republic of India that they had him in custody was unfair, and a trial without counsel is completely ridiculous. The matrix of existing law should state that if the other country is notified and they choose to do nothing, it should be ignored. However, if the other country is not notified at all, as in the current case, it should be cause for serious concern.