Why consular access was denied to Kulbhushan Jadhav

By Jahanzaib Durrani

The case of Kulbhushan Jadhav, in some respects, bears a striking resemblance to Soviet spy William Fisher, aka Rudolf Abel, one of the most well-known Soviet spies of all time. Abel, like Kulbhushan, was an intelligence colonel of the KGB. In 1948, he slipped into the United States illegally via Canada and lived there for nine years as a photographer and painter. He was tasked to transmit the US atomic secrets to the USSR. To his surprise, he was arrested in 1957 and was sentenced to 30 years in prison. However, in 1962, just after four years of his detention, he was released to the Soviet Union in exchange for captured US pilot Francis Gary Powers.

In recent history both Kulbhushan and Abel were possibly the highest-ranking spies to face espionage charges. However, unlike Abel, Kulbhushan’s active participation in some of the deadliest attacks and terror networks in Pakistan gives him a unique position in the long list of captured spies. An overview of the charge sheet against Kulbhushan lists some of the following activities: massive terrorist activities in the country; sponsoring attacks on Hazaras; the explosion of gas pipelines; funding of Baloch separatists and miscreants through hawala/hundi; subverting the local youth of Balochistan against the state of Pakistan; planning to sabotage CPEC, etc.

A few days ago, Adviser to the Prime Minister on Foreign Affairs Sartaj Aziz provided a timeline of the trial and proceedings against Jadhav. In response, Indian officials resorted to jingoistic statements merely adding fuel to the fire. New Delhi has consistently been protesting in the international media that it had sought consular access to Jadhav 13 times, but was refused each time, counting it as an affront to justice.

Let us examine the reasons for denying consular access to Kulbhushan Jadhav. The issue comes under the purview of national law and as well as international law. Pakistan is a dualist state, ie, for international treaties signed by Pakistan to be binding on local courts; implementing legislation is required domestically through the federal legislature. From the perspective of national law, the process is considered the ratification of treaties signed earlier. Interestingly, Article 36 of the Vienna Convention on Consular Relations (VCCR) 1963, which “affords an individually enforceable right to consular access upon arrest or detention in a foreign country,” has not been transposed into domestic law by Pakistan in the Diplomatic and Consular Privileges Act of 1972. This single piece of legislation that solely talks about the ‘consular right and privileges’ are empty of any binding content purporting to provide consular access to foreign nationals arrested or detained on criminal or immigration charges. Thus Pakistan was not obligated to provide Kulbhushan Jadhav consular access as per our domestic law.

Furthermore, Article 36 of the Vienna Convention does not create a binding obligation on a state for providing consular access to foreign nationals arrested on criminal charges. In fact, the following para of the said Convention, Article 36 (2) makes it abundantly clear that this right “shall be exercised in conformity with the laws and regulations of the receiving State.”

Aziz shares charge sheet against Jadhav

Therefore, Pakistan has acted within the corners of its legal ambit by not providing consular access to Kulbhushan Jadhav. Had he been granted consular access it, would have been considered an ultra vires.

Furthermore, espionage is seen as inconsistent with international law since it constitutes an aggressive act against the territorial integrity of another state. Article 2(4) of the UN charter makes it very clear: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” On this subject, Quincy Wright, famous for his pioneering work and expertise in international law, says, “In time of peace […] espionage and, in fact, any penetration of the territory of a state by agents of another state in violation of the local law, is also a violation of the rule of international law imposing a duty upon states to respect the territorial integrity and political independence of other states”.

In view of consular access issues in the past, Pakistan and India signed a treaty on consular access to prisoners, “Pakistan-India Agreement On Consular Access, 21 May 2008”. In that treaty, both the states had agreed upon that the right of consular access should be subject to discretion in situations where the arrest was made on political or security grounds. Article 6 of that agreement unequivocally states, “In cases of arrest, detention or sentence, made on political or security grounds each side may examine any such case on its merit.” The agreement was signed between the two sovereign states and creates a binding obligation upon them to respect and comply with the agreed policy under the Vienna Convention on the Law of Treaties, 1969. India seems to want to get out of an international agreement, which is entered into with open eyes, merely because it doesn’t suit them anymore.

Also, India has been excessively relying on the VCCR 1963 in Kulbhushan’s case. However, it fails to acknowledge that Article 73 of the same Convention states, (1) The provisions of the present Convention shall not affect other international agreements in force as between States Parties to them. (2) Nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof.

So concluded bilateral treaties on this subject like the one Pakistan have with India is perfectly legal and would supersede anything contained in the VCCR.

Hence, keeping in view the charge sheet against Kulbhushan Jadhav, his case provides serious grounds of public policy and public security as he had been accused of a string of terrorism offences. As a result of which, consular access has been rightly denied to Jadhav as per the terms of the 2008 treaty.

India perplexed over spy’s death sentence

Let there be no doubt that Kulbhushan had committed an international wrong for which, subject to evidence, India as a state will bear responsibility under international law. That is because Jadhav’s actions cannot be attributed to ‘lone wolf’ terrorism. According to his own confessional statements, he was an agent (a state-actor), employed by an entity of India ie The Research and Analysis Wing (RAW), deputed in Chabahar, Iran, and was tasked to carry out espionage activities at the behest of RAW. Hence, a plausible case could be made against the state of India. In this regard, reliance should be placed on legally binding instruments such as Draft Articles on State Responsibility and United Nation General Assembly Resolutions 56/83 and 60/147 that are very clear that a breach of international law by a State entails its international responsibility.

Pakistan should forcefully argue its case at all international forums and employ a method to unveil India’s false, baseless and spurious propaganda against the state of Pakistan.