Kulbhushan Jadhav Case

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• Pakistan’s Parliament passed the International Court of Justice (Review and Reconsideration) Bill, 2021, granting the right of appeal to Kulbhushan Jadhav, former Indian Navy officer on death row on espionage and other charges. 
  • The bill was enacted to implement an order of the International Court of Justice (ICJ).

Background on the issue

• International Court of Justice ruling of 2019: India expressed misgivings about the law, saying it still does not fulfil the terms laid down by the International Court of Justice (ICJ) in its 2019 ruling which included the provision that India should be allowed consular access to Jadhav.
• When was he arrested?
  • He was arrested in March 2016 and charged with espionage and sabotage against Pakistan’s security installations.
  • Pakistan blamed India for sponsoring cross-border terrorism targeting Balochistan.
  • India maintained that Jadhav was a former Navy official and that he had been denied rightful access to legal counsel.
  • India approached the ICJ.
• India’s argument at ICJ:
  • India had argued at the ICJ that Jadhav had been denied his rights under the Vienna Convention and Pakistan had “failed to inform” India about his arrest.
• ICJ ruling:
  • In 2017, a year after his arrest, Jadhav was sentenced to death by a military court in Pakistan for alleged acts of sabotage.
  • ICJ asked Pakistan to take “all measures at its disposal” to ensure that Jadhav is not executed pending its final decision.
  • It observed that Pakistan had violated Article 36 of the Vienna Convention by not allowing India consular access to Jadhav and by denying his right to a proper legal representation.

International Court of Justice (Review and Reconsideration) Act of 2021 

• Nothing new in the law: The law will end up as mere paperwork if Pakistan fails to provide verifiable legal access to Jadhav.
  • India has already expressed its misgivings.
• India’s stand: India said that the law is a repeat of the International Court of Justice (Review and Reconsideration) Ordinance, 2020 that India had rejected as inadequate for meeting the goals stated in the ICJ’s observations of 2019.
  • India said the ordinance did not “create the machinery of an effective review and reconsideration” as mandated by the ICJ.
  • India maintains that Pakistan cannot provide a “fair trial” for Jadhav.
• Pakistan’s stand: Pakistan anticipated that India was planning to go to the ICJ again to file a contempt notice against Pakistan and that this law had averted or preempted this possible Indian move. 
  • Following this new law, Pakistan is likely to claim that it has not just complied with the verdict of the ICJ but has also enshrined it as a law.
• Municipal courts: It invites municipal courts in Pakistan to decide whether or not any prejudice has been caused to Jadhav on account of the failure to provide consular access. 
  • This is clearly a breach of the basic tenet, that municipal courts cannot be the arbiter of whether a State has fulfilled its obligations under international law.
  • It further invites a municipal court to sit in appeal which shows that they have higher authority than the ICJ. 
• Appointing a defence counsel: The Pakistan government had filed a case in the Islamabad High Court in 2020 to appoint a defence counsel for Jadhav.
  • The court has since then repeatedly asked India to nominate a lawyer from Pakistan.
  • But, India has been seeking to appoint an Indian lawyer.

Source: TH