Five key questions in the Jadhav case the International Court of Justice will rule on today

The International Court of Justice is likely to announce its verdict in Kulbhushan Jadhav's case on Wednesday with the ruling important for both New Delhi and Islamabad's perspective and carry significant implications on their relationship and impact on regional politics.

What is the case at the International Court of Justice all about?

In essence, India wants the International Court of Justice to order Pakistan to release Kulbhushan Jadhav, a former Iran resident tried and sentenced to death as a spy by a military court in that country. Pakistan is reported to have arrested Jadhav on March 3, 2016.

India was informed of his arrest on March 25, 2016. New Delhi made sixteen requests for consular access to Jadhav.

Islamabad either denied those requests outright, or made consular access to Jadhav conditional on Indian assistance in investigation.

Then, on April 10, 2017, Pakistan announced Jadhav had been convicted and sentenced to death by a military court for “espionage and sabotage activities.”

The failure to give Jadhav consular access, India has argued, vitiates his entire trial.

What does consular access mean?

Foreign nationals arrested while overseas must be promptly informed of their right to communicate with their embassy or consular post, so they can receive adequate legal assistance. This right is guaranteed by the Vienna Convention on Consular Relations, 1963, and has been upheld in several International Court of Justice judgments.

Pakistan, however, that a bilateral agreement on consular access the two countries signed in 2008 overrides the Vienna Convention. That agreement says “each Government shall provide consular access within three months to nationals of one country under arrest, detention or imprisonment in the other country.”

What does India hope for from the International Court of Justice?

India wants the ICJ to restrain 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.”

In addition, it has demanded that Pakistan should not be allowed to try Jadhav again, even after granting him consular access, saying that country’s military court system “does not satisfy the standards of due process”.

Pakistan has not made Jadhav’s trial records public, which makes it hard to assess the evidence against him.  However, reports say he tried under the Official Secrets Act, 1923, for “espionage and sabotage activities against Pakistan”. Pakistan’s Army Act, 1952, allows military courts to hear cases that arise out of the Official Secrets Act.

Does the Vienna Convention apply to Jadhav?

Pakistan claims that the Vienna Convention cannot possibly apply to spies, since that would create an absurd situation: “Consular officials

However, the plain language of the Vienna Convention itself has no exception carved out for spies, terrorists or anyone else. Indeed, such a caveat would allow governments to deny consular access to foreign nationals by simply alleging that they were involved in such acts—thus defeating the point of having a treaty in the first place.

Is Pakistan obliged to accept the judgment of the International Court of Justice?

In theory, yes. The Vienna Convention includes an optional protocol, making it mandatory for signatory-nations to accept the jurisdiction of the International Court of Justice when disputes arise. Both India and Pakistan are signatories. The judgements of the International Court of Justice are binding.

There is a gap between theory and reality, though. In 2004, the International Court of Justice ordered that 51 Mexican nationals convicted by the United States of America be given fresh trials.

The United States Supreme Court, however, held that the judgement could not override national laws ruling out such a review. In 2005, the United States withdrew from the optional protocol. The United States continues to execute foreign nationals denied consular access during their trial, most recently Mexican citizen Roberto Moreno Ramos.