Why consular access was denied to Kulbhushan Jadhav

Published: April 21, 2017
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Kulbushan Yadav. VIDEO SCREENGRAB

Kulbushan Yadav. VIDEO SCREENGRAB

The case of Kulbhushan Jadhav, in some respects, bears a striking resemblance to Soviet spy William Fisher, aka Rudolf Abel, one of the most well-known Soviet spies of all time. Abel, like Kulbhushan, was an intelligence colonel of the KGB. In 1948, he slipped into the United States illegally via Canada and lived there for nine years as a photographer and painter. He was tasked to transmit the US atomic secrets to the USSR. To his surprise, he was arrested in 1957 and was sentenced to 30 years in prison. However, in 1962, just after four years of his detention, he was released to the Soviet Union in exchange for captured US pilot Francis Gary Powers.

In recent history both Kulbhushan and Abel were possibly the highest-ranking spies to face espionage charges. However, unlike Abel, Kulbhushan’s active participation in some of the deadliest attacks and terror networks in Pakistan gives him a unique position in the long list of captured spies. An overview of the charge sheet against Kulbhushan lists some of the following activities: massive terrorist activities in the country; sponsoring attacks on Hazaras; the explosion of gas pipelines; funding of Baloch separatists and miscreants through hawala/hundi; subverting the local youth of Balochistan against the state of Pakistan; planning to sabotage CPEC, etc.

A few days ago, Adviser to the Prime Minister on Foreign Affairs Sartaj Aziz provided a timeline of the trial and proceedings against Jadhav. In response, Indian officials resorted to jingoistic statements merely adding fuel to the fire. New Delhi has consistently been protesting in the international media that it had sought consular access to Jadhav 13 times, but was refused each time, counting it as an affront to justice.

Let us examine the reasons for denying consular access to Kulbhushan Jadhav. The issue comes under the purview of national law and 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 that solely talks about the ‘consular right and privileges’ are empty of 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. In fact, the following para of the said Convention, Article 36 (2) makes it abundantly clear that this right “shall be exercised in conformity with the laws and regulations of the receiving State.”

Aziz shares charge sheet against Jadhav

Therefore, Pakistan has acted within the corners of its legal ambit by not providing consular access to Kulbhushan Jadhav. Had he been granted consular access it, would have been considered an ultra vires.

Furthermore, espionage is seen as inconsistent with international law since it constitutes an aggressive act against the territorial integrity of another state. Article 2(4) of the UN charter makes it very clear: “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.” On this subject, Quincy Wright, famous for his pioneering work and expertise in international law, says, “In time of peace […] espionage and, in fact, any penetration of the territory of a state by agents of another state in violation of the local law, is also a violation of the rule of international law imposing a duty upon states to respect the territorial integrity and political independence of other states”.

In view of consular access issues in the past, Pakistan and India signed a treaty on consular access to prisoners, “Pakistan-India Agreement On Consular Access, 21 May 2008”. In that treaty, both the states had agreed upon 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 unequivocally 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 seems to want to get out of an international agreement, which is entered into with open eyes, merely because it doesn’t suit them anymore.

Also, India has been excessively relying on the 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.

So concluded bilateral treaties on this subject like the one Pakistan have with India is perfectly legal and would supersede anything contained in the VCCR.

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 offences. As a result of which, consular access has been rightly denied to Jadhav as per the terms of the 2008 treaty.

India perplexed over spy’s death sentence

Let there be no doubt that Kulbhushan had committed an international wrong for which, subject to evidence, India as a state will bear responsibility under international law. That is because Jadhav’s actions cannot be attributed to ‘lone wolf’ terrorism. According to his own confessional statements, he was an agent (a state-actor), employed by an entity of India ie The Research and Analysis Wing (RAW), deputed in Chabahar, Iran, and was tasked to carry out espionage activities at the behest of RAW. Hence, a plausible case could be made against the state of India. In this regard, reliance should be placed on legally binding instruments such as Draft Articles on State Responsibility and United Nation General Assembly Resolutions 56/83 and 60/147 that are very clear that a breach of international law by a State entails its international responsibility.

Pakistan should forcefully argue its case at all international forums and employ a method to unveil India’s false, baseless and spurious propaganda against the state of Pakistan.

Published in The Express Tribune, April 21st, 2017.

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Reader Comments (28)

  • Pukubanger
    Apr 21, 2017 - 10:34AM

    In the context of Pakistan there is no need of referring law books. The law itself occasionally gets revived between several deaths. The Author quotes an instance in history where law was bent to adjust with realities of state craft. Forget about consular access, we will get back this innocently trapped India. How? Please keep watching future episodes of the game. Recommend

  • sanjeev
    Apr 21, 2017 - 10:49AM

    Pakistanis forget that once they consider only confession as conclusive evidence, they will have to follow this logic to the end and accept confession as proof by every Pakistani caught by India in future. As against this, India had set free the two school children strayed into India who had confessed their hand in guiding Uri terrorists but GPS, technical and other evidence did not support it. You must be aware 218 Pakistanis are caught in Afghanistan on espionage charges. Will Pakistan accept their confession as evidence ? Recommend

  • Savvy
    Apr 21, 2017 - 10:54AM

    Only statements , with no solid proof , evidence or money trail. Just a forced video confession after torture and making 102 edits and cuts.
    You will be able to make an international case only if you will have evidence , so there will be none .. Not today not tomorrow. You can keep your spirits high meanwhile imagining articles such as these. Wait till he is swapped for your Lt. Col , I can bet 100% that he cannot be hanged. Recommend

  • GKA
    Apr 21, 2017 - 12:22PM

    The only people who agree with this article live inside Pakistan.

    There is no country that buys the story on Jadhav – the US NSA talked about proxies in Pakistan

    Pakistan forgets the strong reaction from Iran when Jadhav was arrested Recommend

  • sanjeev
    Apr 21, 2017 - 12:26PM

    Sartaz Aziz had confessed in the past that Pakistan has no evidence against Kulbhushan, but only statements. Now there is sudden u-turn when China wanted to retaliate for allowing Dalai Lama visit to Arunachal, without facing the consequences of direct confrontation themselves.
    This was bound to happen one day when Pakistan’s foreign policy is dictated by China to serve their foreign policy objectives at the cost of interests of Pakistan. That is the price you pay when something like CPEC is dangled before you as a bait. Soon Pakistan will become one more province of China and China will dictate every thing. I think Pakistan needs one more freedom movement to throw the yoke of a foreign dominance over their colony. That is – if Pakistan survives the big game. Recommend

  • Feroz
    Apr 21, 2017 - 12:34PM

    When the prosecutor, judge, jury and executioner are one how can we ever have any doubt about any verdict. Only God knew when trial was conducted, where it was conducted and whether such a trial was conducted. Of course such niceties as an accused having a lawyer in any such case can be dispensed with. Lucky Jadhav never confessed to 9/11 incident and 26/11 Mumbai massacre or arranging the safe house for Osama Bin Laden. Small mercies !Recommend

  • rich
    Apr 21, 2017 - 1:13PM

    time for indian govt to up the stakes

    we should keep an eye in all saarc countries for pakistani spies

    get all saarc countries to help us nap them

    from srilanka to bangladesh to afhghanistan

    and i am surre we will get quite a few, if they have not already escaped

    and once they confess it should be considered legal admision of wrongdoingRecommend

  • Ruby
    Apr 21, 2017 - 2:35PM

    Stupid logic by the author. By the same logic, India did not sign the International Treaty on Treaties. So India can withdraw from Indus Water Treaty without violating international law.Recommend

  • Paul
    Apr 21, 2017 - 3:08PM

    Agree with the author 100%. Kulbushan knew full well what he signed up for and what awaited him in the end.Recommend

  • Anwar
    Apr 21, 2017 - 3:22PM

    Loving the Indian trolls. Not a word of substance on the actual article but spreading their hate. You got caught red handed, get over it.Recommend

  • Zahoorul Haq
    Apr 21, 2017 - 4:03PM

    @Pukubanger:
    Innocent???? What was he doing in Pakistan with a false name and fake passport ???Recommend

  • Midas
    Apr 21, 2017 - 4:48PM

    Why should they? Khulbashan never entered Pakistan, he used an alias so why should Khulbashan have access to counsellor services.Recommend

  • Shamoon
    Apr 21, 2017 - 4:57PM

    Only one question from India: What was Kulbhushan doing in Iran, a country that is friendly to India, conducting lawful business under a false name and false passport? This is besides the point what was he doing in Pakistan when he was nabbed? He could’ve used his normal passport and normal name if he was doing ‘genuine’ business.
    OF course, Indians wont answer this question but put their heads in the sand and pretended they heard nothing.
    PatheticRecommend

  • Asad
    Apr 21, 2017 - 5:19PM

    @sanjeev:
    India denied him being a serving officer, then why asking for consular access? Recommend

  • Veggiebanger
    Apr 21, 2017 - 8:54PM

    @Pukubanger:
    hahaaa…keep dreaming. you have nothing to play, nothing you can do. your dhoti wearing PM is helpless, clueless, beefless (and these days cashless). hahahahahahaha..Recommend

  • Veggiebanger
    Apr 21, 2017 - 8:57PM

    @GKA:
    iran can do nothing, they are subservient to pakistan in this scenario since he was using iranian soil to destabilize pakistan. he will be punished- stay tuned. hhahahaRecommend

  • Veggiebanger
    Apr 21, 2017 - 8:58PM

    @sanjeev:
    how do you know this? are you a lawyer? were you present for his military trial? have you seen any of the evidence presented against him or for him? stop panicking. we’ll send you back his body. hahahahhaRecommend

  • Veggiebanger
    Apr 21, 2017 - 9:02PM

    @sanjeev:
    hahaa….the only question is not whether pakistan will survive the big game, but whether india will. look around the neighborhood, the only true friend you have is bangladesh and nepal. russia, china, former soviet republics, even iran now are seeing eye to eye with pakistan as a result of pak army’s and gov’ts efforts in afghanistan. they all realize how much geo-economic importance pakistan has. your veggie loving PM will be left in the dust, as the mayhem he had hoped would stop CPEC has not materialized, and there are signs that other countries want to take part and strengthen it further. no worries, perhaps when you receive yadav’s body back you’ll feel some remorse and rectify yourself. hahahahahaRecommend

  • mad mamluk
    Apr 21, 2017 - 9:04PM

    well done jahanzaib!! kudos on this article! the modi toadies are rattled to the core! hahahaRecommend

  • Shah
    Apr 22, 2017 - 1:38AM

    @rich: Next on the list is Ajit Doval…. he better run … ; There is no way Pakis will leave him… so sit back and watch the show; Recommend

  • rama
    Apr 22, 2017 - 6:36AM

    According to his own confessional statements, he was an agent (a state-actor)

    Mere extracted statement from accused, based on the circumstantial evidence may be acceptable in Pakistan (which is know for its JUDICIARY) but not in the international judiciary standards !!! Recommend

  • Manu
    Apr 22, 2017 - 7:57AM

    Basically Jadhav might be a spy but except for his passport Pakistan has no evidence to support the argument of terrorism and sabotage. Moreover not trying him in civilian court and entire judicial process in secrecy will not support their stand internationally. The only fear is given the bad track record of Pakistani jails he might face the same fate as Sarabjit Singh.Don’t worry Pakistan will not ‘legally’ execute him because India has given a strong reaction and International reputation of both nations are different now.Recommend

  • FAZ
    Apr 22, 2017 - 1:11PM

    @Savvy:
    Evidences are not shared in public. Only “relevant” people know about it. We have lost a lot many colonels and majors thanks to Indian sponsored terror. Loosing one more wont matter. Good luckRecommend

  • Gulzaib Durrani
    Apr 23, 2017 - 1:04AM

    Mr.durrani the only thing I would like to say is that ‘Your article has become a news. It is still trending with 396 shares!! Indians(RAW) are clearly not happy with u. You got them riled up!” Keep up the good workRecommend

  • Mostly Bull
    Apr 23, 2017 - 9:40AM

    Kulbhushan Jadhav has already attained his jannat; no amount of consular access is going to help him now.Recommend

  • sanjeev
    Apr 23, 2017 - 12:00PM

    @Asad:
    I hope you are aware, retirement does not take away his citizenship. He is still an Indian citizenship and all his rights will be guarded by India.Recommend

  • omer ali
    Apr 23, 2017 - 5:24PM

    @sanjeev: spies have no rights.Recommend

  • sanjeev
    Apr 24, 2017 - 11:01AM

    @omer ali: : You have to first prove conclusively that the person is a spy. There has to be evidence. Your Sartaz Aziz himself had confessed that there is no evidence against Kulbhushan. https://www.youtube.com/watch?v=b-Bj9il7tGw And if only confession is to be taken as conclusive proof india will give such proof against each Pakistani caught (including 218 people caught in Afghanistan). And Pakistan will have no choice but to accept their guilt. Even two Pakistani school children had confessed their involvement in guiding terrorists in Uri attack. But there was no technical or any other proof and hence they were set free by India. You are putting horse before the carriage when you say spies have no rights. Recommend

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