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.”
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.
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.
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