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
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.
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
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
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
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
Apart from the legal
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 a freelance columnist.