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Breaking : ICJ Directs Pakistan To Review Kulbhushan Jadhav's Death Sentence And To Give Consular Access [Read Judgment]

Live Law News Network
17 July 2019 1:25 PM GMT
Breaking : ICJ Directs Pakistan To Review  Kulbhushan Jadhav
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[Story updated with judgment]

In a major win for India, the International Court of Justice on Wednesday held that Pakistan violated Vienna Convention on Consular Relations 1963 by not informing Kulbhushan Jadhav without delay of his rights under Article 36(1)(b) to have consular access.

"the Court is of the view that Pakistan is under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Vienna Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraph 1 (a) and (c).",ordered the ICJ.

The ICJ has directed Pakistan to provide effective review and reconsideration of his conviction and the death sentence. The choice of means is left to Pakistan. The Court noted that the higher courts of Pakistan can review the judgment of military court. Pakistan law provides for clemency petitions for Jadhav as well.

"the Court finds that Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. 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 Vienna Convention", said the Court.

It said that the stay of execution ordered on May 17 will continue until Pakistan takes "effective review and reconsideration of the conviction and sentence of Mr. Jadhav".

The Court has however rejected India's prayer for annulment of the military court's conviction of Jadhav saying that his conviction cannot be regarded as a breach of Vienna Convention.

"With regard to India's contention that it is entitled to restitutio in integrum and its request to annul the decision of the military court and to restrain Pakistan from giving effect to the sentence or conviction, and its further request to direct Pakistan to take steps to annul the decision of the military court, to release Mr. Jadhav and to facilitate his safe passage to India, the Court reiterates that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention", the Court observed in this regard. 

The President of the Court Justice Abdulqawi Ahmed Yusuf read out the order.

The objections raised by Pakistan against admitting India's application on grounds of abuse of process were rejected by the Court by 15 :1 majority, with the Pakistani judge Justice Jilani voting in favour of Pakistan.

Espionage not an exception to right to consular access

The Court rejected Pakistan's argument that right to consular access is not applicable to persons accused of espionage by 15:1 majority.

The Court observed that Article 36 of the Vienna Convention, when read in its context and purpose, does not exclude persons suspected of espionage. The text and purpose of Article 36 does not support the argument that it does not apply to categories of persons suspected of espionage, said the Court. 

The second argument by Pakistan that rules of customary international law permit it to deny consular access to spies was also rejected. In this regard, the Court noted that Vienna Convention consolidated the law on the subject, and since India and Pakistan are both signatories to the Convention, customary law will not govern the matter.

The third argument by Pakistan that 2008 bilateral agreement between India and Pakistan will govern the issue was also rejected. The Court expressed the view that the clauses of the agreement cannot be read as denying consular access to citizens arrested in the other country on political grounds. On the other hand, the agreement unequivocally reflected the intention of both the countries to extend humanitarian treatment to arrested persons belonging to the other nationality.

The Court inferred from Pakistan's position that Vienna Convention will not apply to Jadhav that it had not complied with its obligations under the Convention.

The UN court had held public hearings from February 18 to February 21 in the case concerning the execution of former Indian Navy Officer Kulbhushan Jadhav, who was sentenced to death by a Pakistani Military Court on espionage charges.

India had approached the UN court alleging that Pakistan had violated Article 36 of the Vienna Convention on Consular Relations 1963 by failing to inform India of Jadhav's arrest and by refusing consular access to him.

On the other hand, Pakistan argued that Vienna Convention on Consular Relations was not applicable to persons detained on charges of espionage.

Pakistan claimed that its forces arrested Jadhav from Balochistan province on March 3, 2016, after he allegedly entered from Iran.However, India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy.

Senior Advocate Harish Salve appeared for India before the ICJ.  Salve submitted that Jadhav's conviction was based on extracted confessions and that the military court had not followed due process.

Queens Counsel Khawar Qureshi for Pakistan disputed Jadhav's Indian identity. There was no proof of him being retired from armed forces. He was in possession of an Indian passport with a Muslim cover name, Qureshi submitted. He cited articles written by Indian journalists Karan Thapar, Praveen Swami and Chandan Nandy to state that Jadhav was a spy planted by India in Pakistan on an espionage mission.

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