Kulbhushan Jadhav case: India calls for immediate provisional measures; hearing concluded

International Court of Justice at the Hague begins hearing the submissions of India in the matter relating to Kulbhushan Jadhav’s execution order by Pakistan. India had, on 08.05.2017, initiated the proceedings before ICJ against the execution of the death sentence imposed upon an Indian National Kulbhushan Jadhav, alleging that Pakistan kidnapped Kulbhushan Jadhav from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan on 3 March 2016. On 09.05.2017, Judge Ronny Abraham, President of the ICJ  stayed the execution of Kulbhushan Jadhav under Article 74, paragraph 4, of the Rules of Court. Harish Salve and Khawar Qureshi are representing India and Pakistan, respectively.

India’s submissions:

  • Dr. Deepak Mittal, appearing as the agent of India: The fact that the hearing in Kulbhushan Jadhav matter is taken up within 7 days is testamentary of urgency of the matter. Pakistan has denied the right to proper legal representation to Kubhushan Jadhav.
  • V.D. Sharma, appearing as co-agent of India: Pakistan failed to comply with provisions under Vienna Convention. It denied consular access to India.  Bilateral agreement cannot supersede Vienna Convention and Pakistan can’t invoke it before ICJ.
  • Harish Salve begins his submissions
  • Consular access denial by Pakistan:  India has made innumerable request since March, 2017 for consular access but Pakistan has refused to communicate to the consular officer. Pakistan asserted in press report that Kulbhushan Jadhav was not entitled to consular access.
  • Pakistan’s communication dated 12.05.2017: Communication dated 12.05.2017 by Pakistan fails to provide assurance that the death sentence will not be executed. Pakistan’s communication that remedies are available to Kulbhushan Jadhav are to be viewed in the light of the facts of the case. Pakistan communicated that the whole nation is united against the threat to Pakistan’s security and that Kulbhushan Jadhav was tried in fully transparent manner. However, the communication lacks credibility as no consular access provided. Pakistan has not provided any explanation for the same. India has not been given copy of charges or verdict. Hence, India seeks annulment of the deaths sentence.
  • Jurisdiction of ICJ: In case of several titles of jurisdiction, parties can rely on any title; India relies on jurisdiction of ICJ. A subsequent declaration on the title of jurisdiction does not limit the jurisdiction of an old declaration/treaty. Arts. 36 (1) and 37 of the Statute it becomes irrelevant to consider other possible Jurisdictions. Taking about the provisional orders under Art. 41(1) of the Rules of ICJ as sought by India, he said that measures under Art. 41(1) preserve the rights of the parties in case of urgency and it can be granted if the concern of the party are plausible. Considering the state of affairs, urgent provisional measure needed. India has a strong prima facie as to the jurisdiction of ICJ for provisional measure.
  • Bilateral Agreement on consular access: The agreement does not need to relied upon by India. India’s claim is based on Vienna convention only.
  • Vienna Convention: After one year of India’s attempt to seek consular access, Pakistan sent a letter stating that consular access will be provided only if India provides assistance to Pakistan. However, no exception as to grant of consular access is mentioned in Vienna Convention. The letter from Pakistan seeking assistance establish that Kulbhushan Jadhav was forced to confess and was ill-treated. on 10.04.2017, after awarding death sentence to Kulbhushan Jadhav, Pakistan again said that Consular access will be considered in the light of India’s assitance. It shows the blatant breach of Vienna Convention. Vienna convention embodies a code of conduct that gives right to trial. When the rights of an individual are violated, consequences must follow. The graver the charges, the greater is the need for procedural safeguards.
  • India has prayed that

(a) the Government of the Islamic Republic of Pakistan take all measures necessary to ensure that Kulbhushan Sudhir Jadhav is not executed;

(b) the Government of the Islamic Republic of Pakistan report to the Court the action it has taken in pursuance of sub-paragraph (a); and

(c) that the Government of the Islamic Republic of Pakistan ensure that no action is taken that might prejudice the rights of the Republic of India or Kulbhushan Sudhir Jadhav with respect to any decision the Court may render on the merits of the case

Pakistan’s submissions:

  • Khawar Qureshi begins his submissions
  • Jurisdiction of ICJ: India has used ICJ as a stage for political theatre but we have no desire to waste Court’s time in trying to score political point. India generated a sense of urgency not Pakistan and has now shifted the position on as to what urgency is. India earlier used words like “Any day” “about to be committed” for the execution of the sentence, but today used the words “6 months” before the Court. 6 months is not in any way urgent or immediate. Stating that action is “likely” to be taken does not warrant ICJ’s jurisdiction. India seeks annulment of the order but it’s not realistic to seek such relief before ICJ. Provisional measures cannot be taken when no relief can be sought. Court should be cautious when no realistic relief is sought.
  • Condition of providing assistance to seek Consular access: It wasn’t a condition on consular access but a fundamental requirement to provide assistance to Pakistan. There is material misrepresentation by India. Pakistan said that Consular Access will be provided as per the Bilateral agreement on Consular Access.
  • Bilateral agreement on Consular access: The agreement is relevant because of the nations relation. Technical argument has been brought before the Court in order to persuade the Court. Why was it not relevant is not explained. It is a binding agreement on both the nations and provides understanding of Vienna Convention.
  • Vienna Convention: India says that Vienna Convention was adopted with the intention to establish friendly relation between nations but the same does not apply when a spy is sent by the applicant to it’s neighboring nation. Hence, provisions beyond Art. 36 of the convention need to be considered. Art. 36(1) (c) cannot be applied to cases relating to espionage or spying. Stating that Pakistan breached Vienna Convention is plainly wrong. Art. 55 makes it clear that there must be no interference in the internal affairs of the receiving nation. Espionage is one such instance.
  • Kulbhushan Jadhav’s Confession: Video of Kulbhushan Jadhav’s confession is publicly available. Viewers can decide if confession was given under force. Argument that Kulbhushan Jadhav was kidnapped from Iran in order to extract a confession is far fetched.
  • Kulbhushan Jadhav’s Passport: We have a passport recovered from Kulbhushan Jadhav that bears a Muslim name and the same is yet to be explained. India hasn’t established Kulbhushan Jadhav’s nationality. No proof of his nationality has been provided by India.
  • The concerns of India over Kulbhushan Jadhav’s life are not well founded. There is no immediate risk to his life. The hearing was not necessary.
  • Pakistan has prayed that India’s request for the indication of provisional measures be rejected.

The Court noticed that it will communicate the date of the order to the parties as soon as possible.

 

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