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INDIA AND Pakistan presented their initial arguments on the Kulbhushan Jadhav case in front of the International Court of Justice (ICJ) Monday, but a bilateral consular access agreement in 2008 between the two countries may hold the key to this complex, legal matter. Clause 6 of the “Agreement on Consular Access” signed in Islamabad on May 21, 2008, by the high commissioners at the time, Shahid Malik of Pakistan and Satyabrata Pal of India,states: “In case of arrest, detention, or sentence made on political or security grounds, each side may examine the case on its merits.”
The phrase “political or security grounds” is critical, because it refers to what is known as “spies” in common parlance. Essentially, the agreement exempts spies from being given the same privileges that signatories to the Vienna Convention (like India and Pakistan) must grant each other’s citizens in jail.
The cases of these political or security prisoners, which will be examined by each country “on its merits”, means that a political judgement will be made by each government on the treatment that should be meted out to them.
So if relations are good, then the government holding such a prisoner may find it of “merit” to quietly repatriate him to his home country. If relations are not so good, then a high-profile spat like the one presently taking place is much more likely. Lawyers also say that India must now be prepared for Pakistan to retaliate and pay India back in the same coin by internationalising bilateral disputes in third-party forums.
“Approaching the ICJ is a legal strategy which achieves the objective of pointing out that the Pakistan justice delivery system (shows) lack of respect for international convention.But we should be prepared for expert claims by Pakistan in the ICJ and other forums,” senior counsel Sidharth Luthra told The Indian Express.
Asked if an ICJ verdict would open the door to greater third-party intervention, which India has abhorred so far, Luthra said, “The door was always open. The scope of application of international treaties at the ICJ does not create new access, but merely signals internationalisation of human rights issues which can play both ways.” Nafees Zakaria, the Pakistan foreign ministry spokesman, indicated his government’s preference for the 2008 bilateral agreement at a briefing on April 27.
“We have made it clear time and again that Pakistan and India have signed an agreement on consular access in 2008, and according to clause 6 of that agreement… in cases where detentions and arrests relate to political or security matters, the request of consular access will be decided on merits of the case. This remains our consistent position,” he said.
Jadhav, said Zakaria, was “working for (the) Indian intelligence agency R&AW and was caught red-handed. He made confessions and was tried for espionage activities”. Meaning, the Pakistan state has characterised Jadhav as a “security prisoner,” and would rather apply the 2008 bilateral agreement to him than the Vienna Convention. However, Indian officials insist the 2008 agreement and Clause 6 cannot contravene the 1963 Vienna Convention of which both countries are party.
According to Article 36 of the Vienna Convention, consular officers “shall be free to communicate with nationals of the sending state” (the country whose national is in jail), “shall have the right to visit a national of the sending state who is in prison,” and “the receiving state (the country in which the national is jailed) shall, without delay, inform the consular post of the sending state (that) a national of that state is arrested or committed to prison.”
It is the difference of understanding on this procedural aspect that the Indian case at the ICJ essentially rests.