KARACHI: India’s reliance on the Vienna Convention on Consular Relations in the case of Kulbhushan Jadhav is misplaced and subverts the very object and purpose of the convention.
This was the opinion of former chief justice of Pakistan Tassaduq Hussain Jillani, who wrote a dissenting opinion in his capacity as an ad hoc judge during the International Court of Justice trial regarding the case of the Indian spy.
Justice (retd) Jillani considered that the court should have found India’s application to be inadmissible in light of its conduct in the case, noting that the Vienna Convention is an agreement that is stated to desire “the development of friendly relations among nations”. He opined that it would be unlikely for the drafters of the convention to have intended for its rights and obligations to apply to spies and other foreign nationals sent on secret missions to threaten and undermine the national security of the receiving state.
The Pakistani jurist noted that Jadhav had an authentic Indian passport with a false Muslim name – Hussain Mubarak Patel. He added that three renowned Indian journalists – Karan Thapar, Praveen Swami, and Chandan Nandy – had debunked the Indian government’s defence on the passport issue.
The judge said Jadhav made a confession before a magistrate wherein he admitted to having organised and executed acts of terror which caused the loss of lives and property at the behest of India’s premier spy agency, Research and Analysis Wing (RAW).
“By ignoring this aspect, the court’s judgment sets a dangerous precedent at times when states are increasingly confronted with transnational terrorist activities and impending threats to national security. Terrorism has become a systemic weapon of war and nations would ignore it at their own peril,” he added while explaining that such threats may legitimately justify certain limits to the scope of application of Article 36 of the Vienna Convention in terms of bilateral relations between any two states at any given time.
Justice Jillani also noted that despite several requests from Pakistan, India did not assist in the investigation of the case, which is in violation of the UN Security Council Resolution 1373, which enjoins member states to provide assistance in connection with criminal investigations relating to financing or suppression of terrorist acts.
In the dissent, he opined that the court misconstrued and rendered meaningless Article 73, paragraph 2, of the Vienna Convention on Consular Relations, which does not preclude state parties from entering into subsequent bilateral agreements. “Notwithstanding that, the Court ignored the legal effect of the 2008 agreement and specifically point (vi), which provides that in “case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”.
In the view of the judge, by concluding the 2008 Agreement, the parties aimed to clarify the application of certain provisions of the Vienna Convention to the extent of their bilateral relations, namely by recognising that each contracting state may consider on the merits of whether or not to allow access and consular assistance to the arrested or detained nationals of the other contracting state.
He said the provision is further consistent with customary international law, which provides for an exception to consular access and assistance for nationals of sending states that have engaged in espionage or terrorist activities in the receiving state.
The ad hoc judge also regretted that the Court did not take into account the rather strained historical and political context which has defined the diplomatic relations between the two countries and despite which, they executed the 2008 Agreement.
In its memorial, India itself referred to a press briefing by a Pakistani spokesman on human rights violations in Kashmir, which “is reflective of how the Kashmir dispute has partly defined the diplomatic relations between India and Pakistan,” he added.
Explaining the impact of the Kashmir dispute on bilateral relations including the non-implementation of the UN Security Council Resolution 47 of 1948, which requires a plebiscite in the disputed state to decide its future, the judge said the situation was further confounded by acts of terror perpetrated by non-state actors and led to the exchange of allegations and counter-allegations of interference.
He noted that illegal border crossings do happen with some regularity, sometimes inadvertently and sometimes with “political” or “security” dimensions. The latter, he said, need to be investigated and each state may be sensitive about providing either immediate consular access or release.
As the Vienna Convention does not specifically deal with arrest and detention on political and security grounds, India and Pakistan negotiated and entered into an agreement within the meaning of Article 73, paragraph 2, of the Vienna Convention with a view to “supplement” and “amplify” its provisions. Jhadav’s case is a classic example of the kind of situations both countries had in mind when inserting point (vi) in the 2008 bilateral agreement.
Even if the Vienna Convention is applicable in the case of Jadhav, Justice Jillani was of the view that Pakistan’s conduct does not constitute a breach of its obligations under paragraph 1 of Article 36.
With regard to the seriousness of offences committed by Jadhav, the threat these have posed to the national security of Pakistan, the fact that several of his named accomplices still have to be investigated, as well as India’s consistent non-cooperation in the investigation, the former CJP was of the view that Pakistan’s conduct does not constitute a breach of Article 36, paragraph 1, of the Vienna Convention.
Finally, Justice Jillani considered that the existing judicial review procedures in Pakistan already substantially respond to the relief ordered by the court. In his view, the court noting that Pakistan should, if necessary, adopt appropriate legislation for effective review and reconsideration, is uncalled for and the court’s reasoning deviates from its existing jurisprudence. He explains that it also sets a dangerous precedent of dictating to states how they must perform their obligations.