Advocacy, Interventions & Practice

JADHAV CASE

(INDIA v. PAKISTAN)

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Table of Contents
Issue.................................................................................................................................................3

Rule of law.......................................................................................................................................4

Analysis...........................................................................................................................................6

Arguments....................................................................................................................................7

Contention by Republic of India..................................................................................................8

Contention by Republic of Pakistan.............................................................................................9

Abuse of power..........................................................................................................................10

Conclusion.....................................................................................................................................10

References......................................................................................................................................13

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Issue
On 8th may, 2017 the case was filed for the purpose of the proceedings to be carried out on the
basis of conflict conducted against the Vienna convention. It was highly alleged on the basis of
the matter dealing with detention, as well as the trial of an individual from India. Mr. kulbhushan
Sudhir Jadhav was sentenced for the purpose of death by the Pakistan military court.

On 3 March 2016, Kulbhushan Jadhav has been arrested by Pakistan, following which on 24
March 2016 it was established by the law enforcement agencies that they have accused Jadhav of
acting as a spy. He has acted for crossing over and landing in Pakistan from unfair means of
acting from Iran and he was caught in the middle of south Pakistan. Moreover, Pakistan also has
shared certain video clips as evidence where Jadhav has been seen confessing these allegations
imposed upon him. Followed by which next year, on 23 January 2017 the matter hiked up with
the external affairs ministers of Pakistan who sent an assistance letter following a criminal
investigation against the Indian national named Kulbhushan Sudhir Jadhav. It was contended that
no responses were received, followed which India has also claimed previously on 29 March 2016
upon the allegation against Jadhav to be acting baseless.

It was contended by Indian courts that Jadhav was illegally kidnapped by the authorities of
Pakistan from Iran and he was not acting against any rules and regulatory bodies. Moreover, the
Indian government has also sought the matter with the consular for Kulbhushan Jadhav in
Islamabad which was further denied. In New Delhi, moreover, 16 requests were made that were
turned down by Pakistan for one year. On 10 April 2017, the military court of Pakistan sentenced
Kulbhushan to be hanged to death for terrorism and espionage (Icj, 2022). The major demand by
the Indian government on 14 April 2017 was related to the authenticated copy to be provided
with the sheet as a verdict for the military court of Pakistan for sentencing Jadhav to death. This
demand was further requested by the consulate to have access to Jadhav. On 8 May 2017, the
cooperation granted the consular access to meet Kulbhushan Jadhav where India approached the
International Court of Justice dealing with the Netherlands for the appeal for Pakistan military
court award for a death sentence. International Criminal Court has been taken into the Picture for

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sorting out the matter of inter-state, where no court has particular jurisdiction over the matter and
the matter comprises different state laws.

With such deliberations and negotiations intended between Islamabad and New Delhi, on the
date 10 November 2017 Pakistan has allowed Jadhav‘s wife to visit on the purpose of
humanitarian grounds. It was further extended for the meeting of the mother that has made India
assured for the safety purposes of the visitors with free movement (Timesnownews, 2022). It can
be stated that Sudhir Jadhav was a 50-year-old individual acting as an Indian Navy officer who
was sentenced to be punished by the court of Pakistan.

The major issues were framed:

1. These charges against him were for the purpose of terrorism or not?
2. The major issue arises in this case for the consideration of the court of Pakistan to
sentence Jadhav on the grounds of terrorism was valid and maintainable?
3. Whether the sentence awarded by Pakistan military court was questionable in front of the
international criminal court based upon the standards laid out in the Vienna Convention
on the consular relationship as well as ICCPR is the international covenant on civil and
political rights which was not granted to Kulbhushan Jadhav?
4. Another issue is laying in the scenario was dealing with the jurisdiction of the
international court of justice to be presented for entertainment purposes on the application
provided for the case of Pakistan, based upon the Vienna convention explicitly upon
terrorism?
5. Whether Pakistan has been correctly demanding Indian assistance for investigation for
Jadhav to serve for the pre-conditional aspect of consular as per Article 36 accepted the
obligation to be unconditional?

Rule of law
The major purpose of the Vienna convention has to act with the aim of protecting the
corporations amongst nationals. It enhances the exchange of information which affects human
activities as well as the purpose of the ozone layer. It functions for policy-making in adopting
different measures to combat which is the responsibility of depletion and acting from a human
perspective with administrative measures. Article 36 of the Vienna Convention on consular
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relationships has been combined by 117 nations as a party. The convention provides protection
from the arrest of an individual belonging to a foreign country or detaining. This article also
focuses on the notification to be provided to the foreign national for the right of consular access.
The major rule to be held by the detail of an individual of a foreign country is to function as per
the obligation of informing the consular without acting with negligent behavior, without any
delay as per Article 36. The ICCPR is the key instrument of the human rights treaty which
functions for the range of international covenants on civil and political rights (Icj, 2022). With
the documentation of rights, human declaration rights and international covenants upon
economic, social as well as cultural rights are combined to act on the humanitarian ground. The
key function is to range the protection of every individual from the perspective of civil as well as
political rights. The ICCPR has covered the entire concept of international covenant based upon
economic, social, and cultural rights which are required to be considerate of the human rights of
every individual to preserve those with dignity and equality before the law (Robinson, et al.,
2019). It has emphasised freedom of speech, and assembly along with the religious freedom of
every individual privacy of freedom from any torture or arbitrariness or ill-treatment from
detention, gender equality, fair trial, right to family life as well as family unity.

The UN General assembly set up this entire measurable administrative understanding in the year
1966 which has been in force until the year 1976 to be carried out as a covenant for the rights.
The major background scenario of these rights has been to acting as an optimal protocol
collectively for the human right recognition with the inherent dignity of each and every
individual in the situation or non-breaching of their rights in any scenario and promoting it
within states. The recognition of ICCPR has been inherent with dignity that is an inalienable
right to be imposed upon all the members of the family for the foundation of freedom to be
emphasised and peace in the world. Its articles have clarified the basic procedure of freedom
from torture in cruel behavior, in human behavior or any degrading treatment to be understood
under article 7 (Nyulawglobal, 2022). The right to life perspective has been given under article 6
and carried by which different articles as demonstrated the key learning of the basic rights of
humans with respecting the protectiveness of individual rights. Article 16 of the Vienna
convention can be contended on the grounds of the declaration to be provided by the Pakistan
government. The declaration is covered under the failure of information to be provided to the
foreign country for the detention of an individual from their nation. Apart from this information

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on the rights of that individual is a part of article 36 of the convention-based upon consular
rights, 1963. Article 36 of the Vienna convention also abides the country to promote the rights on
humanitarian grounds for the individual who has been in custody or detained for legal
representation. The convention has been mandated upon the receiving state, committing to act
for the prison custody (Ulfstein, 2020). India has argued on the basis of the arrest of Jadhav with
the implications of the Vienna convention and other legislative principles.

Analysis
It has been contended that India and Pakistan were the bodies of the Vienna convention from
1977. They were a part of the application that was filed for the optional protocol to be enhanced
with reservation integration. India seeks for the course to the section under article 36 which
declares the understanding of the statute. The optional protocol has been emphasised on the basis
of dispute interpretation to be conducted for the conventional jurisdiction of the international
court of justice. The dispute has arisen upon the question of considered assistance which
functions with arrest and detention, as less intensive on Mr. Jadhav. The court has contended that
Pakistan has not contested the dispute regarding the interpretation of the Vienna convention. The
court notably returns upon the pleadings based upon final submission for India seeking the court
to declare Pakistan to be violative against Mr. Jadhav for the elementary human rights. The
discussion has been carried out in the international Court along with ICCPR (Jiwaji, 2022).
Moreover, the court has observed the convention with the perspective based upon an article
called the protocol that describes the functional understanding of termination for the breaches of
international law that obligates upon the Vienna convention. The argument is carried forwarded
on the basis of the admissibility of the Indian application. For the purpose of which the objection
has been raised for attention from unlawful conduct.

The objection includes the abuse of process, which was objected to by the administrator of
India’s application. Pakistan has set the court to rule upon India for accusing corporate
procedures of advancement of instruments provisional measures. India has failed to draw their
attention to the basis of the existence of regarding Pakistan dealing with material facts more
crucially on a constitutional basis. With the pendency of 150 days period, Mr. Javed has attained
the state for the execution for the possibility of statement. Pakistan has submitted on the basis of

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institutionalising the proceedings where India has failed to give their consideration for dispute
settlement. Article 2 as well as at 3 of the convention mandate for the provisional aspect of
notification critics has been seen (Gragl, and Fitzmaurice, 2019). To bring the interpretation and
applicability of the Vienna convention for the institutionalisation on the basis of Pakistan that is
meant for indicating the professional measures for the consequences of the situation imposed on
Jadhav as per Pakistani law for the petition of appeal.

Arguments
It has been supported with the claim in the case of India v Pakistan included all the inter-alia of
uncertainty for deciding petition on the basis of maintainability. It is executed and concluded the
concept of abuse of power by Indian procedural rights by request in the court for the purpose of
indicating the measures in the said case. With the further arguments contended by both the
parties, the court has noted that the provisions were used for the optional protocol that relied
upon the Pakistan contentions for the conditions of exercising the jurisdiction (Kilian, 2020).
Regard to which article 2, has been constrained which stated the period of two months after
which one party can be notified for the opinion disputed systems and resort on the basis of the
international court of justice with the arbitral tribunal. With the expiry of the period, either of the
party can enhance their dispute in front of the court for their application. The interpretation of the
provisions concerning the case of United States of America v Iran ruled on the basis of Articles
2 and 3 of the protocol of the Vienna Convention on diplomatic relationships(Wasilewski, and
Żenkiewicz, 2018). Under this case, every condition as part of the applicability of categorical
provisions was enhanced as per article 1.

It has established a compulsory jurisdiction of the court for dispute that arises and interpretation
on the basis of the understanding of the Vienna convention. Moreover, India has no obligation at
present, in the above case of Jadhav to institutionalise the proceedings. Pakistan objects to non-
compliance by India with article 2 as well as article 3 of the convention to be situated. With the
recalling of the claims and validity of the jurisdiction, the ground of abuse of process can be
contended with the evidence to be used. The arguments for the Republic of India, have been
carryforward with the understanding of article 36 of the convention against Pakistan. The statute
of the International Court of Justice has contended with article 1 which is the optional protocol
for the Vienna Convention on consular relations that concern the settlement of disputes which

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alleges on the basis of violations conducted by Pakistan. The council has apprehended the
military court of Pakistan which had sentenced Kulbhushan Jadhav to death (Kattan, 2020). A
request has been formulated for the grant to consider accessing the Jadhav related to the matter
of right of every individual as per article 36 with complying with VCCI. Pakistan has
furthermore denied the request almost 16 times which was clear by the fact that it has violated
the article 36 clause 1 of VCCR in the action Pakistan.

With the understanding of article 73 clause 2 of VCCR, it has been contended with the
conventional understanding of precluding the Supplementary or amplifying with the provisions
for no circumstances to be seen for violated agreements among the parties. India and Pakistan
were not set to be at the supremacy with the established provision of VCCR are as well as the
provisions will take its supremacy for the applicability of the matter. These applications have
been enhanced by Pakistan on the basis of bilateral treaties but not diluted with the affirmation of
authority to which a petition is conducted by the clauses of VCCR. The general principles of the
treaty have been established with the understanding of article 41 on the convention upon the law
of the treaty (TRIVEDI, 2021). These reservations were precluded for article 36 (2), the
international court of justice statute that was independently acting contrary. With the authority of
the powers under article 36 clause 1, ICJ statute has been acting as per VCCR which was the
rightful authority to be referred for the council and matters access. Furthermore, the conventional
framework of argument is contended by both parties.

The contention by the Republic of India

The counsel on the behalf of India has suggested upon the lawful right to be detained for the
person in the alien state is a direct controversial concept of national supremacy. The concept of
fair trial has been denied as per the phenomena that govern consular access. With the
situationally access it has been submitted by India that the council officer should be given the
right of conversing as well as communicate with the visitor detainment of an individual in a
country that is considered to be an alien country with the matter of detainment for foreign
territory. In respect to which complete freedom as well as respect to be provided for the purpose
of communication to the individual (Wasilewski, and Żenkiewicz 2018). Moreover, the right for
legal representation has been denied, without any matter of consideration, the consular access
has been denied that the main perquisites of providing a fair trial of consideration as per the

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ambit of international law as well as humanitarian law from a national perspective. In simple
understanding, Pakistan had not respected the covenant dealing with ICCPR, ICJ statute, and
VCCR. A gross error has been seen in the applicability of the international court of justice which
has provided inadequate information to India for the detention held by Mr. Jadhav for a long
period of time. This delay has been considered to be a violation of all the principles construed in
the conventional procedure (Javed., 2019). Furthermore, the information for the detainee has not
been provided which was a legal right as well as a remedy that should be provided to any
individual under the humanitarian grounds.

By denying any consular officer of India, the right has been violated for the consular access
which has been guaranteed as per article 36 of the Vienna convention. These conventional
creatures are considered to be an infringement of the human rights of Mr. Jadhav as well as a
violation of the convention that has been signed by Pakistan inclusive of India with other states.
With precluding rights, the abuse of rights has been seen along with the denial of prima facie
legal rights of Mr. Jadhav. By denying, not only the basic rights have been infringed but also the
concept of free trial has been violated with the precaution of delay in informing the Indian
consular for the detainment of Mr. Jadhav (Dhanotia, et al., 2019). And the major question of the
case has been baseless by Pakistan that focused upon terrorism as the proof was not sufficient
enough to mention that Kulbhushan Jadhav was considered to be an Indian national which was
seen in Pakistan for the purpose of being guilty of acting as a spy which is the Considerate
feature of acting as a terrorist.

The contention by the Republic of Pakistan

The conventions framed by the Islamic Republic of Pakistan have been for the counsel advocate
that apprehended upon the statement given by India. It has committed to the present scenario of
responding to the allegations. It has been submitted by Pakistan on the featuring of abuse of
procedure, rights, and unlawful conduct conducted by India by not accepting the fact with the
principles of VCCR that are not applicable for the jurisdictional perspective (Vučić, 2018). By
adjudicating the case, for terrorism as well as espionage, the inherent nature has been foreseen.
The bilateral agreement has been entered into the contract between India and Pakistan
formulated in the year 2008 which is required to be enforceable. The statement of simple
formulation of words that will lead to arrest, detention, as well as a sentence, is required to be

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secured on the political as well as security grounds. The states have been provided the free right
to decide upon the merits of the case with their own discretional methods. In 2008, a bilateral
agreement has existed between the parties, India and Pakistan in order to override the assistant
applicability of the concept of VCCR.

These reservations are made as per the article 36 clause 2 of the ICJ statute which is considered
to be admissible as well as acceptable in the situation. Article 36(1), has also been supposed to
be enforceable along with the treaty or an agreement made for the impossibility of law. The ipso
facto has been applicable with the valid treaty engagement between the parties. This principle of
ipso facto functions upon the facts or the act which are considered to be the inevitable results or
prima facie situations. Moreover, India has not invoked any of the jurisdictional concepts as per
article 36 of the VCCR in the situation above, and with the existence of a bilateral agreement
back in the year 2008, it is enforceable by the parties.

Abuse of power
The councils are required to apprehend the violator procedure to be the procedural right as well
as the validation of the Constitution of abuse of power. It has violated the procedure firstly, by
accepting or requesting ICJ for any resort or procedural understanding for Kulbhushan Jadhav.
Pakistan further stated that India has undermined the featuring of allowing Pakistan upon the
constitutional rights to file any clemency petition for the notice period of 150 days to be awarded
for a death sentence as it has also held in the case of Mr. Jadhav. Lastly, India has been
undermined with the principle contractual obligation with Pakistan to state for highly material
facts and violate the approachability in ICJ put the appropriate remedy is to be enhanced with the
execution of Jadhav (Kattan, 2020). With the exclusion of these contentions made by Pakistan,
India is considered to be violative of the provision of article 2 as well as 3 of the protocol cited
by VCCR by not allowing Pakistan to take their discretionary mechanism to be envisaged as per
the said articles. It was expected for the parties to act with notifications to each other for the
dispute arose and the matter in a period of two months (Jevglevskaja, 2018). They were not
considered to be approaching the international court of justice but appropriately acting with the
tribunal or a form with measurable understanding.

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Conclusion
With the consideration of abuse of rights, the counsel of Pakistan had contended on the basis that
was submitted by India to be held accountable for not correlating with the investigation
procedure in the Kulbhushan Jadhav case. India has acted bluntly by refusing their clarity upon
the nationality of Jadhav as well as a range of the Indian passport queries of his name with
explicit duties. India has also acted with a cold stance by helping Pakistan to carry forward their
further investigation where India was requested by the Republic of Pakistan to assist in the
criminal investigation. Lastly, India had also assisted Jadhav in the activities to relate with
terrorism and espionage for the purpose of evaluating material facts to prove the same
contentions. Pakistan has contended in its arguments by stating that India has provided
Kulbhushan Jadhav with a false name to be authenticated in the passport which was a violation
of anti-terrorism laws. The judgment has overwhelmed the majority contending with the ratio of
15:1 when the judgment delivered the pointing of questions of violation contented for article 36
of VCCR. With the observation of the court, the major dispute challenges between the countries
were assisted for arrest and detention purposes, leading to the trial and sentencing of Kulbhushan
Jadhav.

It was stated by the court that it has acted as a member of VCCR which was the conventional
basis of the optional protocol by virtue of acting under the Vienna convention for consular
relations concerning their settlement to be under the compulsory dispute resolution. These duties
were reserved for the declaration, where the court has further observed restrictions on
perspective as per article 1 of the optional protocol which was said to be breached under the
international treaty set aside for VCCR. The three objections above raised by the council of
Pakistan dealing with the abuse of power, abuse of rights as well as unlawful conduct by India
were considered to be dismissed. It was considered that the application held by India is
considered to be admissible in the International Court of Justice to be framed for acting with the
convention to be enforceable by law as a feature under article 36 of VCCR. The state of Pakistan
was held to be considered failing in informing India of the detention of Kulbhushan Jadhav in the
set time period as established as per convention. The rights of Kulbhushan Jadhav were also not
precluded to him on time. These aspects of not informing and detaining Jadhav are the denial of
consular rights and obligations as per VCCR agreements which are required to be agreed upon
by the parties upon the declaration.

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Hence, the court has stated upon finding that Pakistan has acted in violation of the perspective of
international laws with respect to which India has demanded restitution in integral. This
procedure of India has based upon the presumption that any partial or total annulment for
sentencing or convention should be based upon a necessary remedy to be solely based upon a
violation of article 36 of the Vienna convention. The court with respect to Pakistan arguments
has functioned with the detainees to be in question for guilty of offenses. The ICJ has been
successful in explaining the agreement of 2008 which has to be provided on the exercise of the
cases of merit. In the situation on basis of arrest, detention or sentences are required to be made
on political as well as security grounds. It can further be stated that they should not deny the
consulate access when the parties had the intention of restricting their rights to be guaranteed
under article 36. With regard to the claim contended by India, the court has correctly featured the
way mentioned by stating the sentence of Mr. Jadhav to be regarded as per the valuation of the
probation content. As per the contention framed by the duty of Pakistan, it can be stated that
Pakistan's duty to inform India as per the consular access. Pakistan has acted with the failure of
detailing an individual without complying with the provisions stated to Indian councilors.

The matter has been enhanced by fully understanding the honorable international court of justice
with the subsequent apprehension. There are few grounds that were based upon the refusal of the
agreement to be contended by a counterbalanced view for opinion and findings presented
conveniently. It can be critically evaluated on the basis of the decision given by the court which
was correct by stating that Pakistan was liable for the violation conducted under the provision of
ECCR, ICCPR as well as in compliance with the 2008 bilateral agreement between the parties.
The court has directly addressed the reasoning of article 1 contended under the protocol for
jurisdiction to be apprehended by ICJ for such matters. It can further be stated that the court has
dismissed correctly dismissed the stance of India with respect to restitution in antigram payment
of international law for the official secrets act in Pakistan for the purpose of enabling detainment
to review the petition for the deportation of Kulbhushan Jadhav to India principle of fairness.
The decision has contended on the applicability of the principle of VCCR which was researched
as per the provision of the 2008 bilateral agreement. This agreement was approached between
the parties for their own merit of sovereignty and the political apparatus of the country. With the
validation, the bilateral agreement stands for the harmonious regard for bilateral agreement of

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sale. The court has not majorly portrayed articles 2 and 3 of the protocol with the compulsory
settlement of the dispute, 1963.

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