Daily Editorials: The legal and political conundrum of Kulbhushan Jadhav case

Context

The alleged Indian spy Kulbhushan Jadhav was arrested by Pakistan authorities for sabotaging ‘China-Pakistan Economic Corridor’ and fomenting secessionist tendencies in Baluchistan.

Pakistan military court system has henceforth declared his execution by blatantly refusing to adhere to international standards of diplomacy and justice.

Issues involved

• India has asserted that he was in his individual capacity doing business in Iran and was picked by Pakistan from there by deceit.
• Therefore, Iran has categorically reaffirmed the support to India’s cause and accused Pakistan of creating divide between New Delhi and Tehran.
• The opaque nature of the trial in Pakistan military court has exposed various faultlines in the diplomatic process.
• India has not been allowed to provide consular access to an Indian citizen arrested in a foreign state, according to Vienna Convention 1963 to which both India and Pakistan are parties.

Background

• The contestation in Baluchistan has shaped the politics between India and Pakistan significantly in the recent times, with the Prime Minister proclaiming human rights violations in Baluchistan (not independence per se).
• The mention of Baluchistan first came in India-Pakistan joint statement on the sidelines of NAM summit in Egyptian Sharm el-Sheikh, which was considered tacit acknowledgement of India’s involvement in Pakistan’s internal affairs in Baluchistan. It needs to be noted that it came months after 26/11 Mumbai attacks in 2009.
• The CPEC project, propounded as an investment in strategically strong relationship of Pakistan and China, is an attempt to encircle India by pushing its influence in its supposed dominance in the Indian Ocean region. The fact that the project has its major element in the Baluchistan region offers India a ploy to play against to protect its vital interest.
• India has always been seeking a transit route to Afghanistan and beyond to Central Asia which the Pakistan-China combine keeps rejecting. The alternate was conceived as Chabahar port in Iran where Kulbhushan has business interests given that he was erstwhile Indian Navy officer. The Gwadar port being developed by China in Baluchistan is not very distant from Chabahar port.
• The spontaneous furore created over the Kulbhushan case is also said to be a front opened by China to counter-balance India’s aggression on Tibet issue when Dalai Lama visited Twang in Arunachal Pardesh.

What are the immediate options available to India?

• The negative sentiment towards Pakistan state for its dubious role in sponsoring terrorism within India, often targeting civilians, creates a public anger which no government in a democracy can choose to ignore when the critical national issues are involved.
• Therefore the fact that Kulbhushan has been denied consular access from Indian diplomatic authorities to the extent India is not aware about his condition and whereabouts, it is a case of violation of Article 36 of Vienna Convention, 1963.
• India can seek a “review and re-consideration” of the conviction and death sentence awarded to him in the light of the rights set forth by Article 36 in International Court of Justice (ICJ).
• A pending case in the ICJ would deter Pakistan from executing him before the final decision of the ICJ. Further, it may prevent something like this from happening in the future on the part of either country.

Vienna Convention on Consular Relations 

• TheVienna Convention on Consular Relations of 1963 is an international treaty that defines a framework for consular relations between independent states.
• A consul normally operates out of an embassy in another country, and performs two functions:
  1. Protecting in the host country the interests of their countrymen,
  2. Furthering the commercial and economic relations between the two states.
• While a consul is not a diplomat, they work out of the same premises, and under this treaty they are afforded most of the same privileges, including a variation ofdiplomatic immunity called consular immunity.
• The treaty has been ratified by 179 states.
• The treaty is an extensive document, containing 79 articles, the important ones being
• Article 5. Thirteen functions of a consul are listed, including protecting in the receiving state the interests of the sending state and its nationals, as well as developing the commercial, economic, cultural, and scientific relations between the two states.
• Article 23. The host nation may at any time and for any reason declare a particular member of the consular staff to be persona non grata. The sending state must recall this person within a reasonable period of time, or otherwise this person may lose their consular immunity.
• Article 31. The host nation may not enter the consular premises, and must protect the premises from intrusion or damage.
• Article 35. Freedom of communication between the consul and their home country must be preserved. A consular bag must never be opened. A consular courier must never be detained.
• Article 36. Foreign nationals who are arrested or detained be given notice “without delay” of their right to have their embassy or consulate notified of that arrest. If the detained foreign national so requests, the police must fax that notice to the embassy or consulate, which can then check up on the person. The notice to the consulate can be as simple as a fax, giving the person’s name, the place of arrest, and, if possible, something about the reason for the arrest or detention.

Way forward

While the case involves complex geopolitical games, the basics of the game remains still simple which can be sorted out amicably between the states.

One, like USA and USSR during the cold war epoch, India and Pakistan can reach a comprehensive understanding on how to treat caught spies and the modalities of their exchange, given that espionage is as old as statecraft and cannot be ruled out even between friendly states.

Two, the outstanding issues between India and Pakistan can be given a backstage as they are highly politicised issues like Kashmir, and work on improving the trade and capitalising on shared cultural history while working to eradicate poverty from the subcontinent ( as suggested by PM Modi).

Practice Questions

1. How is the consternate bilateral relationship between India and Pakistan affecting the lives of individual civilians of both countries? What can be done to enhance people to people contacts?
2. How has the geopolitical games, particularly by China and USA affected the future of the South Asian region?