Opinions poured in from all quarters when the International Court of Justice (ICJ) passed its verdict on Kulbushan Yadhav’s case recently. The ICJ asked Pakistan to ensure “effective review and reconsideration of…conviction and sentences” in the Indian spy’s case.
Opinions on the verdict were diverse and members of the legal fraternity as well as journalists had various interpretations. It was termed as a victory for Pakistan by Minister for Foreign Affairs Shah Mahmood Qureshi because he underscored that the convicted spy shall “remain in Pakistan” and would be “treated in accordance with the laws” of Pakistan. This aspect highlighted how the matter was left to Pakistani courts and the country was urged to reconsider and review the penalty. The verdict was also hailed as a victory by Foreign Office spokesman Dr Muahmmad Faisal who stated that Pakistan had “fought the legal case very well.”
It appears that Pakistan will have to review the situation carefully and adjudicate accordingly on the matter. International Legal Advisor for South Asia at the International Commission of Jurists Reema Omar highlighted that India’s appeal for Kulbushan Yadhav’s release was not granted by the court as it “rejected most of the remedies sought by India, including annulment of military court decision convicting Jadhav, his release and safe passage to India.”
Yadhav’s case is interesting because on the other side of the border, analysts and experts are also claiming victory and vindication of their stance. And although in some ways it was, it should be remembered that this is what ICJ had to say for on the allegation that Pakistan had violated Article 36 of the Vienna Convention: “It is not the conviction and sentence of Mr Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention.” Pakistan was only ordered to cease violation of the article and review it. Article 36 addresses communications between consular officers and nationals of the sending state. The convention provides that “consular officers shall be free to communicate with nationals of the sending state and to have access to them.” Pakistan has argued that this article is not applicable to people involved in espionage. With the verdict now out, Pakistan has been asked to suspend the death penalty awarded to Jadhav. Director General of Inter-Services Public Relations Major General Asif Ghafoor, while speaking to ARY News, applauded efforts of Pakistan’s legal team, “for the verdict to be upheld by an international court where there is no concept of capital punishment is a big victory for Pakistan.” He concluded his remarks by affirming that, “Pakistan will follow the law.”
Kulbhushan Yadhav is an Indian spy who was arrested in Balochistan. He was accused of espionage and terrorism. He was captured during an intelligence operation and at the time, the Indian government denied any association with him. They claimed that he was a former serving commander. He was then sentenced to death by a military court. This case highlights the struggle seen between a state’s municipal law and limitations of the state’s sovereignty by international law. It is important to note that two states use different laws and jurisdictions to form their own conclusions. Pakistan used territorial laws against Yadhav who had been conducting activities in Balochistan. This, however, led to a protest by the Indian government who claimed that Jadhav was an innocent former commander who was in Iran for his business activities. They claimed that his trial in a Pakistani military court was invalid as he was in no contact with the Indian military. India was denied access when it wanted to reach out to Jadhav. Later, the case became more controversial when a video of Jadhav was released in which he confessed his crimes and admitted to working with the Indian intelligence. He was found guilty as he took responsibility for stirring up an insurgency in Balochistan. His main aim was to destabilise the region. The case was then transferred to the ICJ in 2017. India appealed that Pakistan violated the Vienna Convention.
The initial dynamics of the case presented a conflict between the difference in municipal laws which caused tensions between the two neighbour states. However by transferring the case to the International Court of Justice, a shift has taken place. Under the Pakistani law, Jadhav was convicted for operations against Pakistan and his espionage activities for India. For India, the case was passed on due to denial of consular access to Jadhav. India argues that this becomes a violation of the Vienna Convention, which says that the state detaining an individual must provide the detainee with access to officers to visit them. Pakistan did not allow to do so, leading to a violation of the convention. Pakistan argued that they did not receive any request from the Indian government in this regard.
Another aspect of international law that has complicated the situation is that the law states no restrictions or punishments for espionage activities. Here, the law is vague and provides no clear boundaries. Similarly, we see how local laws are also vague and unclear. Despite this, it cannot be contested that Yadhav admitted to working with India’s intelligence and was captured due to his involvement in activities that threatened Pakistan’s sovereignty. Furthermore, we see how the two laws clash as the Vienna Convention is not fully in sync with Pakistan’s national laws of Protective Principles of Jurisdiction. Transferring to the ICJ may undermine Pakistan as internationally India holds more power in the community. Therefore, we see how this case has created tensions between the two neighbouring states as the international law is seen to have power to change national law with changing Yadhav’s death sentence. Pakistan has, however, held firm over the case in order to ensure that state sovereignty is not threatened.
States are sovereign entities that act in accordance to their own national interests. While international law has the power to change rulings of national law, the power remains in the hands of the state to decide whether to take the case to the International Court of Justice or to fight it on their own.
The writer is a student of International Relations at Kinnaird College
Opinions on the verdict were diverse and members of the legal fraternity as well as journalists had various interpretations. It was termed as a victory for Pakistan by Minister for Foreign Affairs Shah Mahmood Qureshi because he underscored that the convicted spy shall “remain in Pakistan” and would be “treated in accordance with the laws” of Pakistan. This aspect highlighted how the matter was left to Pakistani courts and the country was urged to reconsider and review the penalty. The verdict was also hailed as a victory by Foreign Office spokesman Dr Muahmmad Faisal who stated that Pakistan had “fought the legal case very well.”
It appears that Pakistan will have to review the situation carefully and adjudicate accordingly on the matter. International Legal Advisor for South Asia at the International Commission of Jurists Reema Omar highlighted that India’s appeal for Kulbushan Yadhav’s release was not granted by the court as it “rejected most of the remedies sought by India, including annulment of military court decision convicting Jadhav, his release and safe passage to India.”
Yadhav’s case is interesting because on the other side of the border, analysts and experts are also claiming victory and vindication of their stance. And although in some ways it was, it should be remembered that this is what ICJ had to say for on the allegation that Pakistan had violated Article 36 of the Vienna Convention: “It is not the conviction and sentence of Mr Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention.” Pakistan was only ordered to cease violation of the article and review it. Article 36 addresses communications between consular officers and nationals of the sending state. The convention provides that “consular officers shall be free to communicate with nationals of the sending state and to have access to them.” Pakistan has argued that this article is not applicable to people involved in espionage. With the verdict now out, Pakistan has been asked to suspend the death penalty awarded to Jadhav. Director General of Inter-Services Public Relations Major General Asif Ghafoor, while speaking to ARY News, applauded efforts of Pakistan’s legal team, “for the verdict to be upheld by an international court where there is no concept of capital punishment is a big victory for Pakistan.” He concluded his remarks by affirming that, “Pakistan will follow the law.”
Opinions on the verdict were diverse and members of the legal fraternity as well as journalists had various interpretations
Kulbhushan Yadhav is an Indian spy who was arrested in Balochistan. He was accused of espionage and terrorism. He was captured during an intelligence operation and at the time, the Indian government denied any association with him. They claimed that he was a former serving commander. He was then sentenced to death by a military court. This case highlights the struggle seen between a state’s municipal law and limitations of the state’s sovereignty by international law. It is important to note that two states use different laws and jurisdictions to form their own conclusions. Pakistan used territorial laws against Yadhav who had been conducting activities in Balochistan. This, however, led to a protest by the Indian government who claimed that Jadhav was an innocent former commander who was in Iran for his business activities. They claimed that his trial in a Pakistani military court was invalid as he was in no contact with the Indian military. India was denied access when it wanted to reach out to Jadhav. Later, the case became more controversial when a video of Jadhav was released in which he confessed his crimes and admitted to working with the Indian intelligence. He was found guilty as he took responsibility for stirring up an insurgency in Balochistan. His main aim was to destabilise the region. The case was then transferred to the ICJ in 2017. India appealed that Pakistan violated the Vienna Convention.
The initial dynamics of the case presented a conflict between the difference in municipal laws which caused tensions between the two neighbour states. However by transferring the case to the International Court of Justice, a shift has taken place. Under the Pakistani law, Jadhav was convicted for operations against Pakistan and his espionage activities for India. For India, the case was passed on due to denial of consular access to Jadhav. India argues that this becomes a violation of the Vienna Convention, which says that the state detaining an individual must provide the detainee with access to officers to visit them. Pakistan did not allow to do so, leading to a violation of the convention. Pakistan argued that they did not receive any request from the Indian government in this regard.
Another aspect of international law that has complicated the situation is that the law states no restrictions or punishments for espionage activities. Here, the law is vague and provides no clear boundaries. Similarly, we see how local laws are also vague and unclear. Despite this, it cannot be contested that Yadhav admitted to working with India’s intelligence and was captured due to his involvement in activities that threatened Pakistan’s sovereignty. Furthermore, we see how the two laws clash as the Vienna Convention is not fully in sync with Pakistan’s national laws of Protective Principles of Jurisdiction. Transferring to the ICJ may undermine Pakistan as internationally India holds more power in the community. Therefore, we see how this case has created tensions between the two neighbouring states as the international law is seen to have power to change national law with changing Yadhav’s death sentence. Pakistan has, however, held firm over the case in order to ensure that state sovereignty is not threatened.
States are sovereign entities that act in accordance to their own national interests. While international law has the power to change rulings of national law, the power remains in the hands of the state to decide whether to take the case to the International Court of Justice or to fight it on their own.
The writer is a student of International Relations at Kinnaird College