Jun 29 | 14:32 IST
Even ICJ couldn't trust Pakistan: Here's why the court ruled in India's favour
BT Online
New Delhi, Thursday, May 18, 2017 | 17:26 IST
Even ICJ couldn't trust Pakistan: Here's why the court ruled in India's favour

The International Court of Justice (ICJ) today stayed the execution of Indian national Kulbhushan Jadhav, who has been sentenced to death by a Pakistan military court on charges of espionage and subversive activities.

The International Court of Justice instructed Pakistan to take all "necessary measures at its disposal" to ensure that Jadhav was not executed pending a final decision by it. The decision of the 11-judge bench was unanimous, ICJ President Ronny Abraham said while reading out the verdict.

ICJ was convinced that there was threat to Kulbhushan Jadhav's life

The  Court examined  whether  there was  a  risk  of  irreparable prejudice and urgency in the case. The ICJ notes:  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.

ICJ on jurisdiction
Reasoning of 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 -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.

ICJ on consular notification and access
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.

ICJ on provisional measures
The  Court 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.

(With inputs from PTI)

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