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)