Kulbhushan Jadhav: Pakistan in violation of Vienna Convention, ICJ rules
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Kulbhushan Jadhav: Pakistan in violation of Vienna Convention, ICJ rules

Aditya AK

The International Court of Justice (ICJ) today held that Pakistan was in violation of the Vienna Convention on Consular Relations (VCCR) by not allowing India consular access to Kulbhushan Jadhav.

The Court found that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India.

However, it ruled that the jurisdiction was limited to the interpretation of Article 36 of the VCCR, and not on India’s claim that Pakistan’s military court judgment sentencing Kulbhushan Jadhav was violative of International law.

The Court further directed Pakistan to allow India consular access to Kulbhushan Jadhav. The verdict states,

“…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…”

The order follows a finding that Pakistan violated Article 36 of the Vienna Convention on Consular Relations, 1963 by not allowing India consular access following Jadhav’s arrest.

“The Court further finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of 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 Convention.”

In the end, the Court declared that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Kulbhushan Jadhav.

“The Court considers that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav.”

ICJ President Abdulqawi Ahmed Yusuf pronounced the verdict in the case at the Peace Palace in The Hague today.

The verdict passed was a unanimous one, with 15 judges concurring and one dissenting. The dissenting judge was the ad hoc judge appointed for the case, Pakistan’s Tassaduq Hussain Jillani. India’s Dalveer Bhandari was also part of the Bench.

Public hearings in the matter took place at the ICJ between February 18-21 this year. Senior Counsel Harish Salve led the team of lawyers representing India. Khawar Qureshi QC headed the Pakistan’s team of lawyers.

Harish Salve represented India, while Khawar Qureshi argued for Pakistan before the ICJ
Harish Salve represented India, while Khawar Qureshi argued for Pakistan before the ICJ

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

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.

India has accused Pakistan of violating Article 36 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.

In its letter to the ICJ, India claims that Jadhav was kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan on March 3, 2016. However, India was informed of his arrest only on March 25. India also stated that repeated attempts to provide Jadhav consular access have been turned down by Pakistan.

By way of relief, India had sought a suspension of the death sentence awarded by the military court, and 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 (ICCPR), and sought the release of Jadhav.

[Read the ICJ Judgment]:

ICJ-Kulbhushan-Jadhav-Judgment.pdf
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