Key legal facts involved in Kulbhushan Yadav’s case

ISLAMABAD: Legal team of Pakistan on Monday told the International Court of Justice (ICJ) that it had no jurisdiction to review the proceedings in Pakistan and could not hand over the spy to India.

“We told the court (ICJ) that India was trying to create a smoke screen. We told the court that India was trying to mislead the world and the judges,” a member of Pakistan’s legal team told this correspondent. 

“Pakistan appeared in the ICJ and was represented by an eminent team of lawyers and despite paucity of time and resources we were able to put together a befitting response,” the eminent lawyer associated with the team said. Commander Kulbhushan was an Indian terrorist and a spy who was responsible for terror financing and master minding attacks on security installations, the legal team argued before the court. Indian spy was working undercover and could not be given access to its handlers and access to counsel from Indian Embassy was out of question, the team argued.

“They did not even once show to the court as to when and how he was kidnapped from Iran. Indians were in the habit of lying. First they denied that Khulbhushan was an Indian then waited for full one year to go to ICJ on false pretexts. Pakistan objected to the approach and cited precedents where India had itself stated that in matters of dispute between the two countries ICJ had no jurisdiction.” After hearing both sides judgment had been reserved, a team member added.

Kulbhushan Yadav’s case before the ICJ: 

A prominent lawyer Makhdoom Ali Khan who has put together some facts about this important case exclusively shared details with this correspondent.

Background: Pakistan has enacted the Diplomatic and Consular Privileges Act 1972 (“Act 1972”) to incorporate the Vienna Convention on Consular Relations 1963 (“VCCR”) and the Vienna Convention on Diplomatic Relations, 1961.

Through Section 2 of the Act 1972, provisions mentioned in Schedule I and II of the convention have force of law. These schedules do not list Article 36 of the VCCR that affords consular services, correspondence and legal services to individuals detained in another state. Under Article 36 (2), consular officers shall have the right to visit a national of the sending state who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. On April 10, 2017, Pakistan’s Inter-Services Public Relations announced that Kulbhushan Yadav, an Indian national, had been tried before a military court. He was sentenced to death on charges of espionage and sabotage activities. On May 8, 2017, the Republic of India (“India”) instituted proceedings in the International Court of Justice (“ICJ”) to obtain a stay against Yadav’s death sentence. The application stated that Pakistan is in violation of Article 36 of the VCCR.

India’s application seeks following relief: India sought a relief by way of immediate suspension of the sentence of death awarded to the accused. It also sought a relief by way of restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36. India argued that Pakistan is unable to annul the decision, then this court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian national forthwith. India requested the ICJ to implement provisional measures that Islamabad may take all measures necessary to ensure that Kulbhushan Sudhir Yadav is not executed. It may ensure that no action is taken that might prejudice the rights of the Republic of India or Kulbhushan Sudhir Yadav with respect of any decision the court may render on the merits of the case.

The effect of public international law in Pakistan: Najib Zarab Ltd Vs the Government of Pakistan (PLD 1993 Karachi 93)- discusses the relationship between international and domestic law.

The court stated: “we are of the view that nations must march with the international community and the municipal law must respect rules of international law, even as nations respect international opinion;  the community of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with the Acts of Parliament (emphasis supplied).” Pakistan has also ratified the International Covenant on Civil and Political Rights. Denying an individual access to a defence or to a trial under this Covenant can amount to a breach of fundamental human rights, guaranteed under the UN Charter. The responsible state may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this part. India and Pakistan are both parties to the Optional Protocol to the VCCR concerning the Compulsory Settlement of Disputes, 1963. India acceded to in November 1977. Pakistan acceded to it March 1976.