Commander Kulbhushan Sudhir Jadhav of Research and Analysis Wing (R&AW) is sentenced to death by the Field General Court Martial (FGCM) under Section 59 of the Pakistan Army Act, 1952, ISPR. In an application filed in the International Court of Justice (ICJ) on Monday, India stated that Pakistan has repeatedly denied consular access to Jadhav, a press release issued by The Hague-based ICJ.
The Court does not have jurisdiction in these proceedings, even prima facie. There is no dispute between the parties as to the interpretation of Article 36 of the Vienna Convention nor is there a dispute as to its application. The objections raised by India do not constitute a dispute concerning the interpretation or application of the Vienna Convention; and there is no entitlement to restitutio in integrum under the terms of that Convention. ICJ should not be concerned with the authority of the domestic courts of Pakistan to sentence a death penalty for the atrocities committed. The function of the Court is to resolve international legal disputes between States, inter alia when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal.
Incorporated in 1946, ICJ has two jurisdictions, advisory and contentious. Advisory jurisdiction pertains to providing of an advisory opinion. The contentious jurisdiction of the ICJ serves as a deciding body between states, in case of a dispute. There are some requirements to invoke contentious jurisdiction of the ICJ;
The states party to the ICJ statute may at any time, under Article 36, declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning, the interpretation of a treaty, a question of international law, any fact which may be deemed a breach of international obligations, and if a breach of obligations has been determined. The treaty invoked, was concluded by two or more states, encloses within a clause of deciding the dispute through ICJ.
ICJ holds absolutely no enforcement mechanism except to the nature or extent of the reparation to be made for the breach of an international obligation. The decision of the Court has no binding force except between the parties and in respect of that case, states Article 59. India claims that “linking assistance to the investigation process to the grant[ing] of consular access was by itself a serious violation of the Vienna Convention”, as per the ICJ Press Release. The principle of ‘reciprocity’ dealt under international law was not honoured by India. India should have responded positively to Islamabad’s correspondence.
Vienna Convention on Consular Relations 1963 was agreed upon by taking into account the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations. Jadhav is convicted of instigating terrorism in Balochistan. India showed lack of respect towards regional peace and development in South Asia in the aftermath of CPEC. All the international law instruments are subject to norms of international law, whether UDHR, ICCPR, ICESCR, Vienna Conventions etc. Under Article 2(4) of United Nations Charter, ‘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.’ India herself is in severe violation of norms of international law and Charter of United Nations, a ground norm of international law.
Vienna Convention under Article 55, directs the counsellors that without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of the State. In public international law, the concept of jurisdiction is strongly connected with the notion of sovereignty. A state’s domestic courts have jurisdiction over offenses committed in its country and abroad under territorial jurisdiction, Pakistan is on track convicting the Indian spy.
India also has jurisdiction to try the convict in her territory but conditioned with existence of an extradition treaty between India and Pakistan, ancillary to other requirements. The futility of India’s exercise has further demystified her subversive ambitions to conflagrate the regional peace. Excessive hue and cry without any evident substance to wash the taint of espionage from the profile of Kulbhushan Jadhav will only strengthen the resolve of the Islamic Republic of Pakistan to enforce justice.