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ICJ stays execution of Kulbhushan Jadhav: Full text of the verdict

LiveMint logoLiveMint 18-05-2017 Livemint

New Delhi: India on Thursday won its case at the International Court of Justice (ICJ) for the immediate suspension of the death sentence handed to Indian national Kulbhushan Jadhav for alleged espionage in Pakistan.

In its verdict, ICJ ruled “unanimously that Pakistan shall take all measures that Mr Jadhav is not executed” pending the court’s final verdict on the matter.

The ICJ verdict, read out by court present Judge Ronny Abraham of France, also was in favour of India on several other counts, including that Jadhav was entitled to consular access despite being tried as an alleged spy and that the Vienna convention was overridden by a bilateral pact signed between the two countries in 2008.

The ICJ also said that its interim order were binding on Pakistan.

Read the full text of the ICJ ruling below:

Jadhav Case (India v. Pakistan)

Provisional Measures

The Court indicates to the Islamic Republic of Pakistan that it must take “all measures at its disposal” to prevent the execution of an Indian national, Mr. Kulbhushan Sudhir Jadhav, pending final judgment of the Court

THE HAGUE, 18 May 2017. The International Court of Justice (ICJ), principal judicial organ of the United Nations, today indicated to the Islamic Republic of Pakistan that it must “take all measures at its disposal” to ensure that Mr. Kulbhushan Sudhir Jadhav, of Indian nationality, is not executed pending a final judgment of the Court in the Jadhav Case (India v. Pakistan).

In its Order indicating provisional measures, which was adopted unanimously, the Court also stated that the Government of Pakistan shall inform it of all measures taken in implementation of that Order. It further decided to remain seised of the matters which form the subject of the Order until it has rendered its final judgment.

History of the proceedings

India filed its Request for the indication of provisional measures on 8 May 2017, the same day that it initiated proceedings against Pakistan in a dispute concerning alleged violations of Article 36 of the Vienna Convention on Consular Relations of 24 April 1963 with respect to an Indian national, Mr. Jadhav, sentenced to death in Pakistan.

Reasoning of the Court

The Court begins by considering whether it has jurisdiction prima facie to hear the case. It recalls that India seeks to ground its jurisdiction in Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over “[d]isputes arising out of the interpretation or application of the [Vienna] Convention”. In this regard, the Court notes that the Parties do indeed appear to have differed, and still differ today, on the question of India’s consular assistance to Mr. Jadhav under the Vienna Convention. It further notes that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Convention. In the view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol. The Court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.

The Court then turns to the question whether the rights alleged by India are at least plausible. It observes 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 in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the Court, therefore, it appears that the rights alleged by India are plausible.

The Court then focuses on the issue of the link between the rights claimed and the provisional measures requested. It considers that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved. Therefore, a link exists between the rights claimed by India and the provisional measures being sought.

The Court then examines whether there is a risk of irreparable prejudice and urgency. It considers that the mere fact that Mr. Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The Court further observes that Pakistan has indicated that any execution of Mr. 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. The Court also notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case.

The Court concludes by indicating the following 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. The Court also decides that, until it has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.

Composition of the Court

The Court was composed as follows: President Abraham; Judges Owada, Cançado Trindade, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian; Registrar Couvreur. Judge Cançado Trindade appends a separate opinion to the Order of the Court; Judge Bhandari appends a declaration to the Order of the Court.

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