Moneycontrol
May 18, 2017 05:36 PM IST | Source: Moneycontrol.com

Saving Kulbhushan: What ICJ said while delivering its verdict

The court stated that Pakistan should ensure that no execution takes place until the final hearing by the court and that Pakistan shall inform the court of all measures taken in implementation of the final order.

Saving Kulbhushan: What ICJ said while delivering its verdict
kulbhushan Jadhav

The International Court of Justice (ICJ) on Thursday stayed the death sentence given by a Pakistan military court to former Indian Navy officer Kulbhushan Jadhav, whom Islamabad claims is a spy.

Minutes before the verdict was due, a Pakistani Foreign Office Spokesperson said that ICJ has no jurisdiction to hear case of the Indian RAW agent as it pertains to the security of Pakistan.

However, the judge said while reading out the verdict that the court has jurisdiction under the Vienna Convention, which he said does not exclude spies. It said Pakistan should ensure that no execution takes place until the final hearing by the court and that Pakistan shall inform the court of all measures taken in implementation of the final order.

Below are the key observations the court:

On jurisdiction 

The court 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 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 Vienna Convention on diplomatic relations.

In the view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of - 2 - 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.

On consular access

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, 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.

Validity of measures India sought

The Court then focused 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.

Jadhav's executive risk

The Court then examines whether there is a risk of irreparable prejudice and urgency. It considers that the mere fact that 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 observed that Pakistan has indicated that any execution of 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 noted that Pakistan has given no assurance that 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.

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