Headline : Consular access to Kulbhushan Jadhav: What ICJ ordered; Pakistan has ‘offered’ to India
- Pakistan has offered India consular access to Kulbhushan Jadhav, the India who’s been in jail in Pakistan since 2016.
- India is “evaluating” the Pakistani proposal which comes with some strict conditions.
- Kulbhushan Jadhav is a former Indian Navy officer, who was arrested by Pakistani officials in 2016, on suspicion of spying and obstructing activities against the country.
- Claiming that Jadhav was an Indian spy, the Pakistani military court sentenced him to death.
- However, India insists that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy and that he has no links with the government.
- As a last resort of appeal, India went to the International Court of Justice (ICJ), which stayed the execution.
- India accused Pakistan of violating the Vienna Convention by failing to provide Jadhav with consular access, as well as breaking human rights laws.
- On 17 July 2019, International Court of Justice (ICJ) ordered Pakistan to undertake an “effective review and reconsideration” of Jadhav’s conviction and sentencing, and grant consular access to him without delay.
- The ICJ also upheld India’s stand that Pakistan is in egregious violation of the Vienna Convention on Consular Relations, 1963.
What is the concept of “consular access”?
- Consular access simply means that a diplomat or an official will have a meeting with the prisoner who is in the custody of another country.
- The Diplomat will first confirm the identity of the person, and then will ask some basic questions on his treatment in the custody and about his needs.
- Depending on the response, the diplomat/official will report back to his/her government, and the next steps will be initiated.
- The principle of consular access was agreed to in the 1950s and 60s.
About Vienna Convention on Consular Relations (VCCR)
- The Vienna Convention on Consular Relations (VCCR) is an international treaty that defines consular relations between independent states and was framed in 1963, at the height of Cold War.
- During the Cold war era, “spies” from the US and USSR were caught in each other’s countries and across the world, and the idea was to ensure that they were not denied consular access.
- All countries agreed to the principle, and more than 170 have ratified the Vienna Convention, making it one of the most universally recognised treaties in the world.
- The object and purpose of the Vienna Convention is to contribute to the development of friendly relations among nations.
- Under Article 36 of the VCCR,
- At the request of a detained foreign national, the consulate of the sending State must be notified of the detention “without delay”.
- The consulate has the right “to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation”.
Challenges in the implementation of the treaty:
- The ability of a consulate to provide effective aid has been heavily dependent on the prompt receipt of information of the detention, and timely access to the detainee.
- No time interval is indicated for granting consular access.
- However, consular access must be provided in all cases where a foreigner is “arrested or committed to prison or to custody pending trial or is detained in any other manner”, regardless of the circumstances or charges.
- After the ICJ verdict, Pakistan has finally offered India consular access to Kulbhushan Jadhav.
- Pakistan’s Proposal: Pakistan has laid down 3 conditions for consular access to Jadhav:
- The presence of a Pakistani official in the room where Indian officials will speak to Jadhav.
- The room to have CCTVs
- Sound recording facilities in the room.
- Pakistan’s proposal violative of Article 36, 1 para (a) of VCCR:
- According to Article 36, 1 para (a) of the Vienna Convention on Consular Relations (VCCR): Consular officers shall be free to communicate with nationals of the sending State (India) and to have access to them.
- Nationals of the sending State (Kulbhushan Jadhav) shall have the same freedom with respect to communication with and access to consular officers of the sending State (India).
- The conditions being laid down by Pakistan are violative of that spirit of free access to Jadhav.
- India is evaluating the Pakistan proposal in light of the ICJ judgment and will maintain communication with Pakistan on this through diplomatic channels.
- While Islamabad has given a date and time, it is unlikely that India would accept such a monitored meeting.