International Model United Nations 2018

International Court of Justice (ICJ)

The Kulbushan Jadhav Case

The Republic of India vs. The Islamic Republic of Pakistan

Memorial Brief In Support of The Republic of India

Submitted by Applicant
Hoang, Trang
 TABLE OF AUTHORITIES

 Vienna Convention on Consular Relations (1963)

 International Covenant on Civil and Political Rights (1996)

STATEMENT OF FACTS

Regarding an in-depth look into the matter of detention and trial of an Indian National (Mr. K.S.
Jadhav), sentenced to death (on 10. 04. 2017) by a Court Martial in Pakistan, Mr. Jadhav is an Indian
national and a former commander in the Indian Navy who was arrested during a counterintelligence
raid conducted by security forces inside Balochistan in Mashkel. To be more specific, Jadhav joined
the Indian National Defence Academy in 1987 and was commissioned in the engineering branch of
the Indian Navy in 1991. He was arrested by Pakistani officials on March 3, 2016, on suspicion of
espionage and sabotage activities against the country. Claiming that Jadhav is an Indian spy with a
video of him ‘confessing’ to being a spy for the Indian intelligence agency, the Research and Analysis
Wing (RAW) for the past 14 years, Pakistani military court convicted and sentenced him to death on
April 10, 2017. In response to this, according to officials, without any current links with the
government, Mr. Jadhav took premature retirement and was possibly abducted from Iran where he
was carrying on his business in Chabahar after retiring from the Indian Navy.

SUMMARY OF PLEADINGS

The Applicant contends that India was not notified of his arrest until several weeks after it occurred
and that Pakistan failed to inform the accused of his rights. Considering this, after acknowledging the
situation, from a press release, the Indian High Commissioner in Islamabad sought multiple requests
for consular access regarding the investigation of Mr. Jadhav but the military court of Pakistan did not
agree to any of these 16 requests. Pakistan has “refused to communicate, to consular officers, the
charges against Jadhav and the evidence and other material adducted against him in the so-called trial
so as to enable them to arrange for his legal presentation”, and “Islamabad has also not responded to
India’s requests for papers relating to his case,” notably when responding to the initial request for
consular access after over a year by saying “the Indian national is not eligible for consular access nor
will he be granted consular access.

PLEADINGS: THE ARGUMENTS

As subjects to international law, the rights of seeking and of having consular access and assistance are
applied to individuals and States. According to Article 36 of the Vienna Convention on Consular
Relations (1963) ratified by the United States in 1969, which indicates that “when a national of a
foreign country is arrested or detained on criminal or immigration charges, the detainee must be
advised of the right to have the detainees’ consulate notified and that the detainee has the right to
regular consultation with consular officials during detention and any trial.” With this, the Government
of Pakistan failed to comply with all its obligations under Article 36, in other words, blatantly violated
Article 36 of the Vienna Convention on Consular Relations.
More specifically, Article 36 of the VCCR was adopted with a view to setting up “standards of
conduct” contributing to the development of friendly relations among nations and “facilitating
the exercise of consular functions relating to nationals of the sending States”, with paragraph 1 as
follows:
a/ consular officers shall be free to communicate with nationals of the sending State and to have
access to them. Nationals of the sending State shall have the same freedom with respect to
communication with and access to consular officers of the sending State;
b/ if he so requests, the competent authorities of the receiving State shall, without delay, inform the
consular post of the sending State if, within its consular district, a national of that State is arrested or
committed to prison or to custody pending trial or is detained in any other manner. Any
communication addressed to the consular post by the person arrested, in prison, custody or detention
shall be forwarded by the said authorities without delay. The said authorities shall inform the person
concerned without delay of his rights under this subparagraph;
c/ consular officers shall have 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. They shall also have the right to visit any national of the sending State who is in
prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular
officers shall refrain from taking action on behalf of a national who is in prison, custody or detention
if he expressly opposes such action”

PRAYER OF RELIEF

That is to say, the way Pakistani authorities acted upon the Kulbushan Jadhav Case was against
international obligations and could be regarded as largely hostile and suspicious, particularly when the
relationships between the two neighbors are running through a rough patch due to a number of
historical and political events with numerous military conflicts fought between the two nations. With
this, it is urgent that the International Court of Justice (ICJ), in response to such violation, acts upon
India’s requests for the indication of following provisional measures and appropriate reliefs:
1/ relief by way of immediate suspension of the sentence of death awarded to be accused
2/ relief by way of restitution in interregnum by declaring that the sentence of the military court
arrived at, in brazen defiance of the Vienne Convention rights under Article 36, particularly Article 36,
para. 1 (b), and in defiance of elementary human rights of an accused which are also to be given effect
as mandated under Article 14 of the 1996 International Covenant on Civil and Political Rights, is
violative of international law and the provisions of the Vienna Convention; and
3/ restraining Pakistan from giving effect to the sentence awarded by the military court, and directing
it to take steps to annul the decision of the military court as may be available to it under the law in
Pakistan;
4/ if Pakistan is unable to annul the decision, then this Court to declare the decision illegal being
violative of international law and treaty rights and retrain Pakistan from acting in violation of the
Vienna Convention and international law by giving effect to the sentence or the conviction in any
manner, and directing it to release the convicted Indian National forthwith.

More importantly as a whole, in terms of “the extreme gravity and immediacy of the threat that
authorities in Pakistan will execute an Indian citizen in violation of obligations Pakistan owes to
India”, the Applicant requests that the President of the Court, in response to such matter of urgency,
delivers an Order indicating provisional measures directing the Government of Pakistan to take all
necessary measures immediately, “without waiting for an oral hearing”, to ensure that Mr. Jadhav is
not executed until the Court’s decision on the merits of the case.