Case BriefsInternational Courts

International Court of Justice (ICJ), Hague, Netherlands: A 16-Member Bench comprising of President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna ,Cancado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Jillani; pronounced the long-awaited verdict of a four day hearing in the Kulbhushan Jadhav Case unanimously with 1 dissenting opinion of the ad hoc Judge Gillani.

The present high-profile case, involving great significance for the Member States, India and Pakistan both, was carried on with keeping in mind the following facts:

Individual named Kulbhushan Sudhir Jadhav has been in the custody of Pakistani authorities. The circumstances of his apprehension remain in dispute between the Parties. According to India, Jadhav was kidnapped from Iran, where he was residing and carrying out business activities after his retirement from the Indian Navy. He was subsequently transferred to Pakistan and detained for interrogation. Pakistan contends that Jadhav, whom it accuses of performing acts of espionage and terrorism on behalf of India, was arrested in Balochistan near the border with Iran after illegally entering Pakistani territory. Pakistan explains that, at the moment of his arrest, Jadhav was in possession of an Indian passport bearing the name “Hussein Mubarak Patel”. India denies these allegations.

India filed an application for the institution of the proceedings on 08-05-2017 against Pakistan on grounds of the alleged violation of the Vienna Convention on Consular Relations by Pakistan pertaining to Kulbhushan Jadhav’s detention and his trial. Jadhav was accused of performing acts of espionage and terrorism on behalf of India and further sentenced to death by a Military Court of Pakistan in 2017. Therefore, India contended that Pakistan breached Article 36 of Vienna Convention:

  • By not informing India, without delay, of the detention of Jadhav;
  • By not informing Jadhav of his rights under Article 36;
  • By denying consular officers of India access to Jadhav

On 18-05-2017, Court indicated the following provisional measures –

“Pakistan shall take all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order.”

Further, Public Hearings of the said case were held from 18-02-2019 to 21-02-2019, in which India was represented by Deepak Mittal and Harish Salve, while Anwar Mansoor Khan, Khawar Qureshi presented arguments on behalf of Pakistan.

Claims made by India are as follows:

  • Relief by way of immediate suspension of death sentence
  • Relief by way of restitution in integrum by declaring the sentence of the military court arrived at, in brazen defiance of Vienna Convention rights under Article 36
  • Restrain and annul the decision of the Military Court of Pakistan
  • If Pakistan fails to annul its decision, then ICJ to declare it illegal and violative of International Law.

The objections placed by Pakistan in regard to the admissibility of India’s application are based on the following:

  • Abuse of process
  • Abuse of rights
  • Unlawful conduct

Court’s Analysis of the facts and contentions placed

ICJ notes that, Pakistan placed contentions in regard to the applicability of certain provisions of the Vienna Convention.

  • Pakistan argued that Article 36 of Vienna Convention does not apply in “prima facie cases of espionage”.
  • Customary International Law governs cases of espionage in consular relations and allows States to make an exception to provisions on consular access contained in Article 36.
  • Pakistan maintains that it is the 2008 Agreement on Consular Access between India and Pakistan rather than Article 36 of the Vienna Convention, which regulates consular access in the present case.

To all the above-stated contentions, Court concluded that the Convention is applicable in the present case, regardless of the allegations that Mr Jadhav was engaged in espionage activities.

Court infers that Pakistan did not inform Jadhav of his rights under Article 36, paragraph 1 (b), of the Vienna Convention, and thus concludes that Pakistan breached its obligation under that provision. In the Court’s view, there is no basis under the Vienna Convention for a State to condition the fulfillment of its obligations under Article 36 on the other State’s compliance with other international law obligations.

Therefore, the Court unanimously decided:

  • Application of the Republic of India is admissible.

Further, by a majority of fifteen votes to one, it was decided:

  • By not informing Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, Pakistan breached the obligations incumbent upon it under that provision.
  • India was deprived of the right to render the assistance provided for by the Vienna Convention to the individual concerned; Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of Vienna Convention on Consular Relations.
  • Pakistan deprived India the right to communicate with and have access to Jadhav to visit him in detention and arrange legal representation.
  • Pakistan is under obligation to inform Jadhav without delay regarding his rights to provide India consular officers access to him in accordance with Article 36 of VCCR.
  • Effective review and reconsideration of the conviction and sentence of Jadhav.[India v. Pakistan, General List No. 168, decided on 17-07-2019]

Hot Off The PressNews

International Court of Justice (ICJ), finds application of Republic of India admissible. Consular Access granted and the Court considers that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav.

15:1 Verdict.

Following is the operative part of the Judgment pronounced:

THE COURT,
(1) Unanimously,

Finds that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017;

(2) By fifteen votes to one,

Rejects the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible;

IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, CançadoTrindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;

AGAINST: Judge ad hoc Jillani;

(3) By fifteen votes to one,

Finds that, by not informing Mr. Kulbhushan Sudhir Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, the Islamic Republic of Pakistan breached the obligations incumbent upon it under that provision;

IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, CançadoTrindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;

AGAINST: Judge ad hoc Jillani;

(4) By fifteen votes to one,

Finds that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations;

IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, CançadoTrindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;

AGAINST: Judge ad hoc Jillani;

(5) By fifteen votes to one,

Finds that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations;

IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, CançadoTrindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;

AGAINST: Judge ad hoc Jillani;

(6) By fifteen votes to one,

Finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations;

IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, CançadoTrindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;

AGAINST: Judge ad hoc Jillani;

(7) By fifteen votes to one,

Finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention, taking account of paragraphs 139, 145 and 146 of this Judgment;

IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, CançadoTrindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;

AGAINST: Judge ad hoc Jillani;

(8) By fifteen votes to one,

Declares that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.

IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, CançadoTrindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;

AGAINST: Judge ad hoc Jillani.

Hot Off The PressNews

“India’s hands are sullied”

                                                  -Mr Khawar Qureshi (Representing Pakistan)

In the Kulbhushan Jadhav Case, ICJ will begin the hearing for the second round of oral arguments today, i.e. 20-02-2019. India will be placing its arguments before the Court today and tomorrow Pakistan will.

Pakistan in its arguments placed before the ICJ in yesterday’s hearing (19-02-2019) stated that:

“India’s Application should be declared inadmissible by reason of India’s conduct in this context manifesting abuse of rights, lack of good faith, illegality, lack of clean hand and misrepresentations.”

“India’s claim for “at least”, “acquittal, release or return”/annulment of the conviction is at best misconceived, at worst made in bad faith in the light of the Court’s previous decisions consistently rejecting such a claim.”

“India has not made any other relief, thus its application should be dismissed.”

Stay tuned for the Live Updates.


 

 

 

 

Image Credits: Indian Express


LIVE UPDATES: India v. Pakistan [India to begins with the second round of oral arguments]

“Government of India requests this court to adjudge and declare that Pakistan acted in egregious breach of Article 36 of Vienna Convention”, Stated Deepak Mittal (Govt. of India’s Agent) 

  • Harish Salve starts with oral arguments.
  • As old lawyer saying goes ‘When you are strong on the law you hammer the law, when you are strong on facts you hammer the facts and when you are strong on neither you hammer the table’.Berefet of a case, Pakistan has hammered the proverbial table.
  • Pakistan has mischaracterized India’s reading of the report on Military Courts as an attempt to mislead the Court.
  • Pakistan’s comments deriding Lahore High Court Bar Association yesterday are regrettable.
  • Harish Salve on Pakistan Counsel’s arguments: A criticism of a sovereign state of the case made out of the other state must be in language consistent with the dignity of other states. Humpty Dumpty has no place in this Court.
  • India never suggested estoppel.  At least we keep reminding ourselves that we are in an International Court, not Commercial Court.
  • Pakistan did not question Jadhav’s nationality when 13 reminders were sent from India.
  • “Indian nationals are not the kind whose nationality needs to be denied.”
  • Biodata mentions that Jadhav was a former Indian Navy officer. This would be proof of his Indian nationality. Indian nationals are not the kind whose nationality needs to be denied.
  • Salve mentions the Mumbai Attack in 2008.
  • “If Jadhav had been involved in subversive activities, irrespective of whether or not he had an Indian passport, he would have been tried for espionage.”
  • “Pakistan has nothing beyond a confession and Passport.” [Pakistan has nothing beyond the extracted confession on which Mr. Jadhav has been convicted of participation in the subversive activities. Possessing a passport does not make you party to offences. Your role in those offences is what gets you a conviction. Not having a passport which would enable you to sneak into a country, as you mean there was such a passport.
  • India has repeatedly asked for a copy of the judgment convicting Jadhav and charges against.
  • “Pakistan claims to have clinching evidence on the basis of articles in the Indian press.”
  • Supreme Court of Pakistan has suppressed operation of Peshawar High Court cited by Pakistan. On one hand, Pakistan is challenging that judgment in Supreme Court, on the other, it is citing it in ICJ, Salve.
  • Kasab’s case cited by Salve in regard to “review.” When we talk of review, I’d like to draw your attention in stark contrast in the Kasab case. where the Supreme Court in India held that since it is a case of death sentence we may examine the materials on record first hand. This is called a review.
  • Pulwama Terror Attack mentioned by Harish Salve in line of other terror attacks by Pakistan. [Kulbhushan Jadhav has become a pawn in Pakistan tool to divert international scrutiny from itself, Salve says. The Indian counsel then refers to the terror attack in Pulwama on February 14 that killed at least 40 CRPF personnel. [United Sates has even called upon Pakistan “to end immediately the support and safe haven provided to all terrorist groups operating on its soil, whose only goal is to sow chaos, violence and terror in the region.]
  • There was a time when Pakistan was respected but not anymore.
  • Jadhav’s trial was completed in 4-6 months. What happened to the 150 people killed in the Mumbai terror attacks?
  • “One of the reasons why India seeks Mr. Jadhav’s release, apart from showing propaganda, is that he has become a pawn and a convenient tool for Pakistan to try and unsuccessfully divert global attention from its own conduct.”
  • “The time has come for this Court to make Article 36 a potent weapon for the protection of human rights.”
  • Salve ends his arguments.
  • India’s agent Deepak Mittal placed the relief being sought by India before ICJ.
  • President Abdulqawi Ahmed Yusuf speaking on appointment for ad-hoc Judge for Pakistan.
  • ICJ President Abdulqawi Ahmed Yusuf then refers to Pakistan’s request to replace ad-hoc Pakistani judge Tassaduq Hussain Jillani, who had suffered a cardiac arrest on the first day of hearings. “Judge ad-hoc Gilani was given case files and participated in all court deliberations before these hearings,” he says. “He will receive all transcripts of oral proceedings. He will continue to participate.”
  • Sitting Adjourned.

Pakistan will present its final round of arguments tomorrow, i.e. 21-02-2019.

Hot Off The PressNews

As reported by PTI, a four-day public hearing in the case of Kulbhushan Jadhav, a Retired Indian Navy officer sentenced to death by a Pakistani military court on charges of espionage would begin today.

ICJ has set a timetable for the public hearing in the high-profile case from 18-02-2019 to 21-02-2019 at the Peace Palace in The Hague, the Netherlands. India will argue first on February 18, Pakistan will get its chance to make submissions on February 19. Then India will reply on February 20 while Islamabad will make its closing submissions on February 21.

It is expected that the ICJ’s decision may be delivered by the summer of 2019.

Please refer the link for the background of the case: Kulbhushan Jadhav Case

[Source: PTI]


Live Updates: [First Day of Hearing] [India v. Pakistan]

  • Harish Salve is representing India and Kulbhushan Jadhav.
  • Kulbhushan Jadhav in respect to the facts was not made aware of his consular access.
  • Harish Salve: there are only two broad issues in the Kulbhushan Jadhav case. The first issue relates to the construction of Article 36 of the Vienna Convention. The second issue relates to relief.
  • It is an egregious violation of the Vienna Convention.
  • Jadhav’s purported confession clearly appears to be coaxed. India reminded Pakistan that it’s Pakistan government which hasn’t ratified SAARC convention on legal assistance in criminal matters.
  • Salve: ICJ has already upheld the importance of consular access under Article 36.
  • Article 36 facet of the due process.
  •  Article 36 of the Vienna Convention cannot be modified by Bilateral treaties, could only supplement it.
  • Article 36 becomes a vital cog in the wheel of justice.
  • Pakistan should’ve provided a substantial explanation for why it needed 3 months for providing consular access, upon which it could’ve claimed that it has complied with the treaty obligation. Even on the erroneous premise that para 4 applies, Pakistan hasn’t complied treaty obligations.
  • Article 73(2) of the Vienna Convention will apply in the present case. Article 30 of the said convention does not override Article 73(2).
  • Break of 10 minutes.
  • The hearing resumes after the break.
  • Salve: Article 36 has been recognized as a rubric for human rights.
  • Trial by military court fails to satisfy even minimum standards of due process and should be declared “unlawful”.
  • Salve states that: “Disrespectful allegations against India”. Cases cited by Pakistan have no relevance in the present case.
  • Despite repeated attempts by India to sign a treaty for mutual legal assistance, Pakistan has refused. The reason is that there are several pending cases that involve terrorism.
  • Pakistan has always been offered consular access even when its citizens have been caught red-handed in acts of terrorism.
  • “Proceedings in Pakistani military courts fall far short of international standards. In the 2 years military courts have been allowed to convict civilians, 161 civilians have been given death sentence in an opaque manner.” 90% of convictions are based on confessions and the reasons are not made public.
  • Military proceedings are kept totally secretive, due to which detainees are bound to torture.
  • I would invite this court to keep in mind the relief to be granted in the backdrop of the fact that his trial has been conducted by a military court, states Salve.
  • “Pakistan has knowingly, willfully and brazenly violated Article 36 of the Vienna Conventions in respect of Kulbhushan Jadhav Case. Therefore, consequences may follow.”
  • Pakistan’s conduct doesn’t confirms that Jadhav would receive justice in Pakistan.
  • De-humanizing behaviour towards Jadhav’s family.
  • A resolution was passed by Lahore Bar Association threatening anyone who would dare appear for Jadhav in Pakistan courts. Bar Association also criticised ICJ’s grant of provisional measures
  • Pakistan has acted illegally, Salve.
  • Pakistan used Jadhav to build a narrative against India.
  • Kulbhushan Jadhav case used as propaganda by Pakistan.
  • Salve emphasizes: Review and reconsideration of the case would be inadequate. The relief should be in the form of a direction to set Jadhav free.
  • India: It has established that not allowing consular access is gross violation of Article 36 of the Vienna Convention by Pakistan.
  • In the present case, relief of review & re-consideration would be highly inadequate, considering facts & circumstances.
  • India seeks annulment of Jadhav’s conviction and a direction that he be released.

Pakistan’s round of arguments to begin tomorrow. [19-02-2019]

Stay tuned for tomorrow’s hearing.

 

Case BriefsHot Off The PressInternational CourtsNews

International Court of Justice at the Hague pronounced it’s verdict in favour of India. It said that the conditions required to indicate provisional measures are met, hence, it is appropriate to order that Pakistan should ensure that Kulbhushan Jadhav is not executed pending the final decision. The provisional order under Article 41(1) has binding obligation.

On the Jurisdiction of ICJ, the Court said that any reservation made in Bilateral Agreements cannot limit this Court’s jurisdiction under Vienna Convention. The provisions of Bilateral Agreement on Consular Access, 2008 do not expressly limit this Court’s jurisdiction. India has maintained at various times that Kulbhushan Jadhav should be given consular access, however, Pakistan maintained that it will be granted only if India provides assistance. It establishes that the Court has jurisdiction as the acts alleged by India are capable of falling under Article 36(1) of Vienna Convention. The alleged failure by Pakistan to allow communication and access to Kulbhushan Jadhav is enough to fall under provisions of Vienna Convention. Also, Vienna Convention does not exclude the persons accused of acts of espionage. Hence, the Court has prima facie jurisdiction to entertain the plea.

The Court said that the rights invoked by India under Article 36(1) of Vienna Convention are plausible. A link exists between rights claimed by India and the provisional measures being sought. The Court observed that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized inArticle 36(1) of the Vienna Convention, and that India has alleged violations of this provision.

On Irreparable prejudice and urgency of the matter, ICJ said that as far as that is concerned the mere fact that that Kulbhushan Jadhav might be executed is sufficient to indicate the urgency. Pakistan has indicated that any execution of Kulbhushan Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case It is not clear as to when he might be executed. Pakistan has given no assurance that he will not be executed before the Court renders it’s final decision.

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 represented India and Pakistan, respectively.

The hearing in the matter took place on 15.05.2017. Read the submissions by India and Pakistan, here.

Click here to read the order of the Court.

Hot Off The PressNews

The International Court of Justice will deliver its Order on the request for the indication of provisional measures made by India in the Jadhav Case (India v. Pakistan), tomorrow. A public sitting will take place at 03:00 PM at the Peace Palace in The Hague, during which Judge Ronny Abraham, President of the Court, will read the Court’s Decision.

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 represented India and Pakistan, respectively.

The hearing in the matter took place on 15.05.2017. Read the submissions by India and Pakistan, here.

Hot Off The PressNews

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.

 

Case BriefsInternational Courts

On 10.05.2017, the International Court of Justice at Hague (ICJ) notified that it will hold public hearing on 15.05.2017 in the proceedings initiated by India against Pakistan in the Kulbhushan Jadhav matter.

The hearings will be streamed live on the Court’s website www.icj-cij.org/multimedia, as well as on UN Web TV, the United Nations online television channel. The press release also mentioned that hearings will also be covered by the United Nations television broadcasting service (UNifeed, New York).

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.

To read the full text of ICJ’s press release, click here

Hot Off The PressNews

In the proceedings initiated by India on 08.05.2017 before the International Court of Justice against the execution of the death sentence imposed upon an Indian National Kulbhushan Jadhav, the International Court of Justice stayed the execution of the sentence. The information was shared by the External Affairs minister Sushma Swaraj. She also informed that Senior Advocate Harish Salve is representing India before the International Court of Justice.

India has alleged that Pakistan has violated the Vienna Convention on Consular Relationsin the matter of the detention and trial of Kulbhushan Jadhav, who has been sentenced to death by a military court in Pakistan.

India’s case before the ICJ is 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, and that the Indian authorities were notified of that arrest on 25 March 2016. India had sought consular access to Mr. Jadhav on 25 March 2016 and repeatedly thereafter.

To read International Court of Justice’s press release on the matter, click here