ICJ on the Kulb­hushan Jad­hav’s Case

Libertatem Magazine - - Contents - Jane Maria Tomy

Facts

Mr. Kulb­hushan Sud­hir Jad­hav was ar­rested by Pak­istan and been in Pak­istan’s cus­tody since 3rd March, 2016. In­dia had re­quested con­sular ac­cess many a times to Pak­istan. But, with­out grant­ing any ac­cess, Pak­istan’s Court Mar­tial sen­tenced Jad­hav to death on 10th April, 2017 for es­pi­onage, sab­o­tage and ter­ror­ism. Against this in­jus­tice, In­dia al­leged vi­o­la­tion of the Vienna Con­ven­tion on Con­sular Ac­cess of 24 April, 1963 in the In­ter­na­tional Court of Jus­tice.

Is­sues

1. Whether the In­ter­na­tional Court of Jus­tice has prima fa­cie ju­ris­dic­tion un­der Ar­ti­cle I of the Op­tional Pro­to­col?

2. Whether the sen­tence of the Court Mar­tial of the Pak­istan is in de­fi­ance of the Ar­ti­cle 36 of the Vienna Con­ven­tion on Con­sular Ac­cess?

3. Can the court or­der for pro­vi­sional mea­sures for pre­vent­ing the ex­e­cu­tion of Mr. Jad­hav?

Judg­ment

With re­gard­ing to the is­sue of main­tain­abil­ity, the court held that it was suf­fi­cient if the case can prima fa­cie fall within the scope of Ar­ti­cle 36 of the Vienna Con­ven­tion. The Ar­ti­cle 36 deals with the rights of the coun­tries to get con­sular ac­cess. Un­der the Ar­ti­cle I of the Op­tional Pro­to­col, the In­ter­na­tional Court of Jus­tice have ju­ris­dic­tion when a case con­cern­ing the in­ter­pre­ta­tion and the ap­pli­ca­bil­ity of the Vienna Con­ven­tion is brought up. There­fore, the court de­nied Pak­istan’s ob­jec­tions to­wards the main­tain­abil­ity and up­held its ju­ris­dic­tion.

There­after, Pak­istan ar­gued that Ar­ti­cle 36 of the Vienna Con­ven­tion does not ap­ply to cases of es­pi­onage, sab­o­tage and ter­ror­ism. The court re­jected this ar­gu­ment by stat­ing that no le­gal anal­y­sis has been given re­gard­ing that by ei­ther par­ties. The court found that the rights in­voked by In­dia are plau­si­ble.

The court, then, turned to­wards the pos­si­bil­ity for or­der­ing pro­vi­sional mea­sures. There re­quires an ir­repara­ble prej­u­dice and ur­gency for or­der­ing pro­vi­sional mea­sures into a given case. Pak­istan ar­gued that there was no ur­gency. Jad­hav had the le­gal op­tion to ap­ply for the clemency within 150 days. There­fore, the nor­mal le­gal pro­ce­dures of the Pak­istan’s sys­tem it­self can be sought to de­lay and re-ex­am­ine the trial. But, the court re­jected this ar­gu­ment too.

The court held that there is a risk of ir­repara­ble prej­u­dice to In­dia by the mere fact that as long as Mr. Jad­hav is un­der the death sen­tence, he can be ex­e­cuted by Pak­istan at any mo­ment. There­fore, the court or­dered Pak­istan to take all such mea­sures to pre­vent the ex­e­cu­tion of Mr. Jad­hav till the present pro­ceed­ings ended and also, in­form the court about the mea­sures taken.

Learn­ing Out­come

In­dia was able to suc­cess­fully stall the ex­e­cu­tion of Mr. Kulb­hushan Sud­hir Jad­hav.

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