Maritime Laws and Regulatory Arbitrage Case Study

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Case before the International Court of Justice: Case NoteIntroductionArticle 36 of the Vienna Convention on Consular Relations states that “consular officers shall be free to communicate with nationals of the sending State and to have access to them.”[footnoteRef:2] The arrest, trial, and sentencing of Indian national Mr. Kulbhushan Sudhir Jadhav by Pakistan authorities was a violation of the Convention, as judged by the International Court of Justice in Jadhav (India v. Pakistan).[footnoteRef:3] India made three arguments—first, that Pakistan failed to inform it without delay of Jadhav’s arrest; second, that Jadhav had not been informed of his rights under Article 36 of the Convention; third, that India’s consular officers had been denied access to Jadhav while he was under arrest and therefore had been unable to assist in his legal defense.[footnoteRef:4] Pakistan had accused Jadhav of espionage and had sentenced him to be executed. India not only sought a stay of execution but also the return and safe passage of Jadhav. While the Court ruled that India’s three claims were valid and that Pakistan had violated the Convention on each of the three points, the Court ruled that India’s request “for the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, and its further request for the Court to direct Pakistan to take steps to annul the decision of the military court, release Mr. Jadhav and facilitate his safe passage to India” could not be upheld.[footnoteRef:5] Instead, the Court ruled that Pakistan was obligated to review and reconsider the conviction of Jadhav in light of its violations of the Convention’s Article 36. Curently, Jadhav remains in prison in Pakistan. The case is important to India and the global south because of the fact that it pertains to the rights of foreign nationals and their due process. If due process in accordance with the Vienna Convention on Consular Relations is denied them it risks the breakdown and deterioration of diplomatic relations. At the same time, the accusation of espionage is a serious charge that adds another dimension to the case. In the United Nations Charter (UN Charter), espionage is not explicitly addressed and remains a contested issue in international law.[footnoteRef:6] [2: Vienna Convention on Consular Relations, Art 36, 1963.] [3: Jadhav (India v. Pakistan) https://www.icj-cij.org/en/case/168] [4: Jadhav (India v. Pakistan) https://www.icj-cij.org/en/case/168] [5: Jadhav (India v. Pakistan) https://www.icj-cij.org/en/case/168] [6: Demarest 1996, 339; Chesterman 2006, 1072]Background and Summary of the CaseJadhav was arrested by Pakistan officials on 3 March 2016. On 25 March 2016, Pakistan’s Foreign Secretary raised the matter with the Indian High Commissioner in Islamabad, at which point India sought consular access to Jadhav. Between 30 March 2016 and 19 April 2017, fourteen requests for access were sent from India to Pakistan, and no reply was received.

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Pakistan had full knowledge that Jadhav was a foreign national and wanted India’s assistance—but India protested that “consular access to Mr. Jadhav would be an essential prerequisite in order to verify the facts and understand the circumstances of his presence in Pakistan.”[footnoteRef:7] India maintained that by denying access to Jadhav and “in conducting the trial without informing the accused of his rights under the Vienna Convention and granting consular access to India, Pakistan has conducted itself in a manner that constitutes an egregious violation of the Vienna Convention.”[footnoteRef:8] The International Court of Justice ruled in favor of these claims but denied India its petition for the safe passage return of Jadhav. The Court ruled that Pakistan was obligated to review the case in light of these transgressions of the Vienna Convention, but beyond that no…

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…own court system. India has appealed to the International Court of Justice, which has acknowledged the validity of India’s claims while at the same time refusing to order Pakistan to return the accused to India. Therefore, the Court acknowledges that Pakistan to some degree is within its rights to conduct the trial of the accused as it sees fit, while simultaneously ordering Pakistan to review the trial and sentencing of Jadhav in light of violations of the Convention. The Court itself appears unable to adequately resolve the matter due to the nature of the issue. For this reason, the international community should address the matter of espionage and accusations of espionage in peacetime with greater care. For India, the matter is of some import, since the accused has been convicted of espionage in Pakistan—but India without recourse to the law on matters of espionage has had to rely on the Convention to gain support for its rights. This reliance has had little effect on the matter other than to secure acknowledgment that Pakistan did violate the Convention’s Articles. Underlying the Court ruling is the sense that Pakistan is nonetheless protected by its right to sovereignty under the UN Charter to address matters of espionage as it sees fit. This leaves the two countries at an impasse and lays the groundwork for a deterioration of diplomatic relations in the future. The global south cannot risk such deterioration considering the fragile nature of its relations and the threat of instability that such deterioration brings......

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