In a major win for India, the International Court of Justice today directed Pakistan to take “all measures at its disposal” to prevent the execution of Mr. Kulbhushan Jadhav, pending final judgment. In the unanimous decision, the Court instructed Pakistan to inform it of all measures taken in implementation of the order.
At the outset, the Court headed by President Ronny Abraham began by ruling that it has prima facie jurisdiction under Article I of the Optional Protocol. Article I provides that the Court has jurisdiction over “[d]isputes arising out of the interpretation or application of the [Vienna] Convention”. The Court noted that the parties have differed on the question of India’s consular assistance to Mr. Jadhav under the Vienna Convention. It further noted 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. The Court further observed that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.
The Court then ruled that the “rights alleged by India are plausible”. It 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 in Article 36, paragraph 1, of the Vienna Convention.
Further, noting that there exists a risk of irreparable prejudice and urgency, the Court observed 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. It further noted that Pakistan had given no assurance that Mr. Jadhav will not be executed before the Court rendered its final decision. In such circumstances, it was satisfied that there existed urgency in the present case.
It then went on to notice the establishment of link between the rights claimed and the provisional measures requested, observing that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved.
Read the Full Text of Order Here
Concurring Opinion of Judge Cançado Trindade
In his Concurring Opinion, Judge Trindade emphasized on the link between “the right to information on consular assistance with the guarantees of the due process of law” set forth in the instruments of the International Law of Human Rights (ILHR).
Commenting on the nature of provisional measures, he observed that even though the proceedings in contentious cases before the ICJ keep on being strictly inter-State ones, this in no way impedes that the beneficiaries of protection in given circumstances are the human beings themselves, individually or in groups.
Read Judge Trindade's Opinion Here
Declaration of Judge Bhandari
While agreeing with the decision of the Court, Judge Bhandari concluded that a clear case had been made out for indication of provisional measures under Article 41 of the Statute. He further observed that on a preliminary examination of the facts, the basic human rights of Mr. Jadhav have been violated by not allowing India to have consular access to him after his arrest and during the pendency of the criminal proceedings against him in Pakistan.
Read Judge Bhandari's Declaration Here
Mr. Jadhav was awarded death sentence last month by the Field General Court Martial in Pakistan, evoking a sharp reaction in India which warned Pakistan of consequences and damage to bilateral ties if the “pre-meditated murder” was carried out. While India acknowledges that Jadhav had served with the Navy, it denies that he has any connection with the Government.
The Appeal on Mr. Jadhav’s behalf was given last month to Pakistan’s Foreign Secretary Tehmina Janjua by Indian High Commissioner Gautam Bambawale, who also handed over a Petition by Jadhav’s mother, expressing the desire to meet him, and seeking the Pakistan Government’s intervention for his release.
In the Appeal, India has accused Pakistan of “egregious violations of the Vienna Convention”. It has contended that it was not informed of Mr. Jadhav’s detention until long after his arrest, and that Pakistan failed to inform him of his rights. It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Mr. Jadhav, despite its repeated requests.
It has brought to the notice of the Court that Pakistan had subsequently requested assistance in the investigation, and had informed India that consular access would be considered only in the light of India’s response to such request. This linking, India has now contended, is “by itself a serious violation of the Vienna Convention”.
India has thereafter pointed out that Mr. Jadhav’s execution “would cause irreparable prejudice to the rights claimed by India”. It, hence, demanded an immediate suspension of Mr. Jadhav’s death sentence, submitting that “[w]ithout the provisional measures requested, Pakistan will execute Mr. Kulbhushan Sudhir Jadhav before th[e] Court can consider the merits of India’s claims and India will forever be deprived of the opportunity to vindicate its rights”.
India has further sought a direction to Pakistan to annul the decision of the Military Court. In case Pakistan is unable to annul the decision, it has sought a declaration that the decision is illegal, being violative of international law and treaty rights.
Read the Order here.