Pakistan

Don't hang Jadhav before final hearing, ICJ tells Pakistan

May 18, 2017 04:53 PM
Mr. Kulbhushan Sudhir Jadhav

The Hague, May 18 (Punjabkhabar Bureau):  The International Court of Justice (ICJ), the principal judicial organ of the United Nations, today indicated to the Islamic Republic of Pakistan that it must “take all measures at its disposal” to ensure that Mr. Kulbhushan Sudhir Jadhav, of Indian nationality, is not executed pending a final judgment of the Court in the Jadhav Case (India v. Pakistan).

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. The Court also decides that, until it has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.

In its order indicating provisional measures, which was adopted unanimously, the Court also stated that the Government of Pakistan shall inform it of all measures taken in implementation of that Order. It further decided to remain seised of the matters which form the subject of the Order until it has rendered its final judgment.

India had filed its request for the indication of provisional measures on May 8,  2017, the same day that it initiated proceedings against Pakistan in a dispute concerning alleged violations of Article 36 of the Vienna Convention on Consular Relations of 24 April 1963 with respect to an Indian national, Mr  Jadhav, sentenced to death in Pakistan.


Reasoning of the Court

The Court began by considering whether it has jurisdiction prima facie to hear the case. It recalled 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 noted 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 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 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 wass sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol.

The Court further observed that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.

ICJ, Hague, Neitherland

The Court then turned to the question whether the rights alleged by India are at least plausible. 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 recognised 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.

For further details on the order, please refer to the International Court of Justice website www.icj-cij.org

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