New Delhi: India can and may approach United Nations Security Council should Pakistan refuse to abide by the stay order of the International Court of Justice (ICJ) on the execution of Kulbhushan Jadhav.
The UN charter entails that ‘each member of the United Nations undertakes to comply with the decision of the International Court of Justice’ and ‘if any party to a case fails to perform the obligations, the other party may have recourse to the Security Council.
Here is the text of the ICJ’s order:
In a major win for India, the International Court of Justice (ICJ), the primary judicial organ of the United Nations, has ordered Pakistan to take “all measures at its disposal” to prevent the execution of an Indian national Kulbhushan Jadhav, until its final order.
In its order indicating provisional measures, which was adopted unanimously, the Court also stated that the Pakistan Government 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.
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 “disputes arising out of theinterpretation or application of the Vienna Convention”.
In this regard, the Court noted that the both sides do indeed appear to have differed and still differ today on the question of India’s consular assistance to Jadhav under the Vienna Convention.
It further noted that the acts alleged by India that is 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, appeared 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 the optional protocol.
The Court further observed that the existence of a 2008 bilateral agreement between the two countries on consular relations does not change its conclusion on jurisdiction.
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 hisrights 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.
The Court then focused on the issue of the link between the rights claimed and the provisional measures requested.
It considered that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention and are preserved. Therefore, a link exists between the rights claimed by India and the provisional measures being sought.
The Court then examined whether there is a risk of irreparable prejudice and urgency.
It considered that the mere fact that 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 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 noted that Pakistan has given no assurance that Jadhav will not be executed before the Court has rendered its final decision.
In those circumstances, the Court said that there is urgency in the present case.
The Court concluded by indicating the following measures:
1.) 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 takenin implementation of the present Order.
2.) 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.
Justice Ronny Abraham of the ICJ read out the much-awaited verdict and asserted that the case was indeed debatable, while also adding that the ICJ had prime facie jurisdiction in the case.
Abraham added that under the Vienna Convention, India should have received consular access to seek justice for the former Indian Naval officer.
A Pakistan military court had awarded the death sentence to former Indian naval officer Jadhav on April 10 for alleged “espionage and subversive activities.”
However, India, after being denied consular access for 16th time, dragged Pakistan to the ICJ on May 8 for violating the Vienna Convention.
India told the ICJ that immediate steps must be taken to stop Pakistan from carrying out the death sentence of Jadhav. Demanding the immediate suspension of the death sentence, New Delhi expressed fear that Islamabad might execute the formal naval officer even before the hearing of the ICJ was over.
Pakistan, on its part, told the ICJ that the provisions of Vienna Convention on consular access were not applicable for a ‘spy’. It also accused India of using the international body for political theatrics.
Arguing before the 11-judge bench at the ICJ, which included former Supreme Court Judge Dalveer Bhandari, India’s counsel Harish Salve stressed that not granting consular access and not giving legal representation of Jadhav’s choosing amounted to a “miscarriage of justice” and a “violation of his right” to defend himself from concocted charges in a “farcical trial”.
India told the ICJ that immediate steps must be taken to stop Pakistan’s from carrying out the death sentence of Jadhav.
Salve had told the court that India couldn’t arrange for Jadhav’s defence due to denial of consular access by Pakistan. He said India made innumerable requests for consular access, but Pakistan refused to provide documents relating to the case and consular access to him.
Pakistan raised the confession statement of Jadhav as a base of its argument and accused India of using the ICJ for its “political theatrics.” India termed that the confession of Jadhav was forcibly taken by the military while in captivity and he was tried by a military court in Pakistan.
Pakistan’s counsel Khawar Qureshi, while presenting Islamabad’s stance in the ICJ on death sentence handed to Jadhav, said that the former naval officer entered Islamabad through Iran using a fake passport.
He told the court that Pakistan had given India all information regarding Jadhav’s investigation, but didn’t receive any response from New Delhi.
India demanded the immediate suspension of Jadhav’s death sentence but Pakistan presented the Kulbhushan Jadhav case as a matter of national security and the ICJ’s decision would not apply to “matters related to the national security of Pakistan.”