International Court of Justice (ICJ) operates under the UN to decide cases of contentious issues between the States on application by one of the parties. It, however, can neither deal with a dispute on its own initiative nor it is permitted under its Statute to investigate and rule on acts of sovereign States as it chooses. The States involved in the dispute ‘must consent to the Court’s considering the dispute in question’.
ICJ has violated sheer violation of its own rules to give relief to India which remained unchallenged by our legal team. Why ? I have examined the matter related to the case of Kulbushan Yadav which was purely a proven crime of espionage against Pakistan, hence, ICJ had no legal jurisdiction to take up this matter.
It was a failure on part of our legal team and foreign office in protecting the sovereign rights of Pakistan. The two nations can go to ICJ with only signed and mutual consent on any matter. Pakistan neither gave consent nor it opposed its trial and it is stated in judgement that Pakistan did not raise their right of objection as stated below in my detailed analysis.
The court, on application by the government of India, took cognizance of the alleged violations of Article 36 Vienna Convention 1963 by Pakistan by denying consular access to Kulbhushan Jadhav, an Indian spy arrested from Balochistan and made a judicial confession for sabotage activities. Briefly, India contended that:
1. Allegedly Pakistan failed to inform Mr. Jadhav of his rights under Article 36, paragraph 1(b) of Vienna Convention.
2. Allegedly Pakistan failed to inform India, without delay, of arrest and detention of Mr. Jadhav.
3. Allegedly Pakistan failed to provide consular access, thus breach its obligations under Article 36 of the convention.
The court assumed its jurisdiction to adjudicate the application of India against Pakistan under Article I of Optional Protocol to Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes. It concluded that it had compulsory jurisdiction under the said Article.
Pakistan on the other hand contended that the provisions of Article 36 of the Vienna Convention do not apply to the person arrested on espionage charges, whereas we should have boycotted the proceedings and should have gone to UN and filed a complaint against illegal proceeding in violation of ICJ’s own law.
Although Article 36 VCCR does not expressly state that the right to access consular assistance can be refused where a national is accused of espionage, nevertheless, Pakistan justified its decision to refuse consular access to Mr Jadhav on three grounds:
1. Pakistan argued that Article 36 VCCR was never intended to apply to spies. Hence, and contrary to what Pakistan had claimed, the failure of the drafters to build an espionage exception into Article 36 does, in fact,indicate that they intended for the protection afforded by this provision to be available to all individuals, including spies.
2. Pakistan maintained that customary international law permits states to refuse to nationals the right to access consular assistance in the event that they are accused of spying. Pakistan’s central claim was that, because the Preamble to the VCCR affirms that ‘rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention’, this agreement does not cover in to all matters pertaining to consular relations.
3. The 2008 Agreement on Consular Access between Pakistan and India prevails over the VCCR, which allows states to deny consular access where it is necessary to maintain national security yet the ICJ rejected all three of Pakistan’s arguments.
It was the argument of Pakistan that the Agreement of 2008 was meant for case to case basis that this agreement was signed keeping in view the spirit of the Vienna Convention. However, India did not agree to the argument of Pakistan and the court, unfortunately, sided with India and ruled that the agreement of 2008 does not overrule Article 36 of the Vienna Convention.
The court held Pakistan guilty of breach of Vienna Convention by majority votes (by 15 to 1) and ordered as under:
147. To conclude, the Court finds that Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention, taking account of paragraphs 139, 145 and 146 of this Judgment.
While delivering the judgment, the court, however, observed that Pakistan never raised objection to the jurisdiction of the court under Article I of Optional Protocol to Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes. This observation of the court needs to be thoroughly investigated to find out why and by whom it was chosen not to challenge the jurisdiction of the court under the said article. And the public has right to know about this legal mishaps
Surprisingly, there was only one ad hoc judge from Pakistan in a bench of 15 judges. The judgement clearly demonstrates a tilt of the court towards the arguments advanced by India and rejected every argument of Pakistan.
The court did not accept Pakistan’s stand that the mutual agreement between Pakistan and India in 2008, which deals with the consular access, was reflective of the spirit of the Vienna Convention. The question of consular access, under the agreement, to those arrested on espionage charges was clearly separated from those arrested on ordinary charges. The court, however, ruled, by accepting the argument of India, that this agreement does not overrule Article 36 of the Vienna Convention.
In fact, the basic trial of this case was against the law and it was like predetermination to give relief to India. Pakistan has amended the law giving the right of appeal to Kulbhushan Yadav, but that does not qualify him to get himself exonerated.
The law and punishment for a spy/person accused of espionage is still intact and let us see if he is hanged for his crimes against innocent Pakistanis or not. I expect that law will come into force to create deterrence and deliver a strong message that there is no mercy for those who are involved in acts of espionage against our people. The views expressed above are solely mine & in the national interest and do not necessarily represent the views of my party.
The writer is former Interior Minister of Pakistan, author of five books, Ex-Chairman Senate Standing Committee on Interior and Chairman Institute of Research & Reforms (IRR) Islamabad. He can be reached at: firstname.lastname@example.org, Twitter @Senrehmanmalik
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