The all famous “Indian Spy” case has been the talk of the town, for some time now. Weather this case, will further sour the relations between the two nations remains to be seen, but one thing is for sure that a win in this case will go a long way in improving India’s image at the ICJ. India has suffered some major losses in the principal Judicial organ of the UN, including the loss against the Marshal Islands. In the current case, referred as the Jadhav Case( India v Pakistan), one Mr Kulbhushan Sudhir Jadhav, is said to be kidnapped from Iran where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan” on 3rd March 2016, and that the Indian authorities were notified of the at arrest on 25th March 2016. India claims to have sought consular access to Mr. Jadhav on 25 March 2016 and repeatedly thereafter, but was denied. Mr. Jadhav was tried in the Military court and was subsequently given Death Sentence. India had thereafter on 8th May 2017 instituted proceedings against the neighbor in the ICJ, accusing later of egregious violations of the Vienna Convention on Consular Access, 1963. India, ably represented by Senior Counsel Harish Salve, did the smart thing by simply attacking the legal front.
The Court, while giving this judgment has discussed and relied upon three main components, including Jurisdiction, Plausibility and Urgency of the matter. First of all the court began by considering weather it had jurisdiction prima facie to hear the case. By considering the Article I of the Optional Protocol, it decided that it had. Interestingly, there’s an agreement between the two Asian giants, regarding the consular access. Signed in 2008, it basically exempts spies from being given the same privileges, such as Consular access which the signatories to the Vienna Convention must grant to each other’s citizens in Jail. However, there’s more than what meets the eye. Article 102 of the UN Charter prohibits the invocation of any such treaties in any organ of the UN signed between the member nations, which are not registered before the secretariat of the United Nations, such as this treaty. Also Article 73 of the Vienna Convention, doesn't allow dilution of its provisions by introducing further agreements between the member nations, regarding the consular access. Secondly on the question of Plausibility, it observed that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. And therefore, it accepted that the rights alleged by India are plausible. Thirdly, the Court examined whether there is a risk of irreparable prejudice and urgency. It accepted that, the mere fact that Mr. Jadhav is under a death sentence and might therefore be executed, is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The Court further observed that Pakistan had indicated that any execution of Mr. Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case. The Court also noted that Pakistan had given no assurance that Mr. Jadhav will not be executed before its final decision. Therefore, it came as no surprise when the court observed that “ Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order.”
Weather, the final Judgment will go in India’s favour or Pakistan’s remains to be seen but the real cause of concern for India is that our noisy neighbor has not given any hint, on weather it will come in line with the said order or not. If it does not, then there will definitely be repercussions from the Indian side, but upto what extent, remains to be seen. Most Importantly, it will raise questions regarding the true impact of a world body, as big as the UN itself. Whatever the outcome, at this point of time, I am reminded of Donald Trump who said “ UN has become a club for people to get together talk and have a good time”
