Kulbhushan Jadhav case: Harish Salve begins submissions for India – Live Updates from the ICJ [Day 1]
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Kulbhushan Jadhav case: Harish Salve begins submissions for India – Live Updates from the ICJ [Day 1]

Bar & Bench

Hearings in the Kulbhushan Jadhav matter between India and Pakistan will commence today at the International Court of Justice (ICJ). The matter will be heard amidst high tensions between the two countries following the terrorist attack on February 14 that claimed the lives of 40 CRPF jawans.

India is seeking consular access for Jadhav, who was arrested in 2016 on charges of espionage. India will make its arguments today between 2:30 pm and 5:30 pm today.

Senior Counsel Harish Salve is leading the team of lawyers representing India. Khawar Qureshi QC will head the Pakistan team.

Live updates of the hearing follow:

  • Senior Advocate Harish Salve begins submission for India
  • First issue relates to construction of Article 36 of Vienna Convention. Second issue relates to relief. Restitutio in integrum is basic principle, Salve for India.
  • “Pakistan is embarrassed to disclose the judgment in the Jadhav case, the charges against him, and the evidence. The story has always been strong on rhetoric and weak on facts”, Salve
  • Salve going into facts of the case. Pakistan was bound to grant consular access. Facts seems to suggest that even Jadhav was not made aware of his right to consular access.
Harish Salve makes arguments for India before the International Court of Justice (ICJ) in the Kulbhushan Jadhav case
Harish Salve makes arguments for India before the International Court of Justice (ICJ) in the Kulbhushan Jadhav case
  • Salve on first issue: Article 36 requires officials of receiving state to inform sending state about the detention of the citizens of latter. Consular officers shall be free to communicate with nationals of the sending State and to have access to them.
  • Interpretation of Article 36 must be informed in relation to human rights, Salve
  • Salve cites precedents. Restrictive interpretation would be contrary to plain terms of Article 36. Consular access must be granted before trial is finished. This case involves an egregious breach of Article 36.
  • The more serious the charge, the greater the need for adherence to procedure. Serious charges of espionage and terrorism do not jettison Article 36, Salve quotes from cases.
  • Nothing to show that consular access would have hampered the investigation or Pakistan’s national security, Salve.
  • Bilateral treaties can only supplement Vienna Convention. Nothing in India-Pakistan treaty that goes against Article 36 of Vienna Convention, Salve.
  • Article 73(2) would apply to the case. Article 30 of the Vienna Convention on the Law of Treaties (VCLT) does not override Article 73(2) of the Vienna Convention on Consular Relations, Salve.
  • Salve quotes Article 5, 9, and 10 of Universal Declaration of Human Rights, which deal with rights of arrested and detained persons.
  • Sitting adjourned for ten-minute break.
  • Judges take their seats, Harish Salve resumes submissions for India.
  • Strictest and most rigorous guarantees must be undertaken in cases of death penalty, Salve cites from a judgment of an Inter-American court.
  • As per decisions in Medellin, Avena etc, Article 36 has been recognized as a rubric for human rights, Salve.
  • Salve now on the interplay between Article 36 of Vienna Convention and Article 14 of the ICCPR.
  • Cases cited by Pakistan have no relevance to present case, Salve.
  • Pakistan using ICJ as a platform for propaganda. That in itself in an abuse of the court process, Salve.
  • Despite repeated attempts by India to sign a treaty for mutual legal assistance, Pakistan has refused. The reason is that there are several pending cases that involve terrorism.
  • Pakistan does not even refer to the incidence for which Jadhav is being charged with espionage; claims to have obtained a confession even before FIR was filed.
India’s ambassador to the Netherlands, Venu Rajamony (L) and senior Indian diplomat, Deepak Mittal (R) at the ICJ hearing in the Kulbhushan Jadhav case
India’s ambassador to the Netherlands, Venu Rajamony (L) and senior Indian diplomat, Deepak Mittal (R) at the ICJ hearing in the Kulbhushan Jadhav case
  • India has always offered consular access to Pakistan even when its citizens have been caught red-handed in acts of terrorism. It is another matter that Pakistan has never availed the same, Salve.
  • Pakistan amended its Army Act to allow military courts to try civilians. The working of Pakistani military courts has been censured by European Parliament.
  • Proceedings in Pakistani military courts fall far short of international standards. In the 2 years military courts have been allowed to convict civilians, 161 civilians have been given the death sentence in an opaque manner.
  • Rights of Kulbhushan Jadhav and India have been brazenly violated by Pakistan. Consequences must follow, Harish Salve
  • Pakistan’s conduct does not inspire confidence that Jadhav will get justice in Pakistan, Salve
  • Salve quotes a resolution passed by Lahore Bar Association threatening anyone who would dare appear for Jadhav in Pakistan courts. The Bar Association also criticised ICJ’s grant of provisional measures.
  • In present case, review and reconsideration of case would be inadequate. The relief should be in the form of a direction to set Jadhav free.
  • India seeks annulment of Jadhav’s conviction and a direction that he be released. Harish Salve concludes for India.
  • Sitting adjourned for the day. Pakistan will make its first round of arguments tomorrow.

Pakistan makes their first round arguments on February 19, from 10 am to 1 pm.

India will make its second round of oral arguments on February 20, from 3 pm to 4:30 pm, whereas Pakistan will conclude on February 21, from 3 pm to 4:30 pm

In May this year, the ICJ granted India’s request for provisional measures in the Kulbhushan Jadhav case. Effectively, Jadhav’s execution was put on hold pending the court’s decision on merits.

Senior Advocate Harish Salve represented India, while Khawar Qureshi, QC appeared for Pakistan.

Kulbhushan Jadhav, an Indian national, was sentenced to death over allegations of espionage and terrorism by a military court in PakistanIndia approached the ICJ in May 2017, invoking its power under Article 74 of the Rules of the Court to grant provisional measures.

India has accused Pakistan of violating Article 36(1) of the Vienna Convention on Consular Relations, 1963, in that the latter failed to inform them of Jadhav’s detention until long after his arrest.

By way of relief, India had sought a suspension of the death sentence awarded by the military court, and has sought an order restraining Pakistan from giving effect to that sentence. It also asked the ICJ to grant interim relief by declaring the sentence violative of Article 36 of the Vienna Convention and Article 14 of the International Covenant on Civil and Political Rights, and has sought the release of Jadhav.

In its application, India has also stated that Jadhav would be executed should the ICJ not interfere, and that would cause “irreparable prejudice to the rights claimed by India”.

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