Kulbhushan Jadhav verdict at The Hague: ICJ ruling in 2003 Mexico vs US 'Avena' case gives India hope

The verdict in the case of retired Indian Navy officer Kulbhushan Jadhav is to be pronounced by the International Court of Justice (ICJ) at 3.30 pm IST. In the four days since India and Pakistan presented their respective oral observations at The Hague, the topic of whether or not the court will order provisional measures in the case has been widely discussed (here's a look at some of the views published by this website).


There are three past cases (relating to death penalties) handled by the ICJ that can be seen as some sort of precedent for today's verdict. These are the 1998 Paraguay versus the United States (Angel Francisco Breard)  case, the 1999 Germany versus United States (LaGrand) case and most recently, the 2003 Mexico versus United States (Avena) case. It is the last of these that will boost Indian hopes of a positive verdict in the Jadhav matter.

But first, a quick recap:

In the Breard case, the court called on the US to "take all measures at its disposal" to prevent the execution of Breard, pending a final decision of the court in the proceedings instituted by Paraguay. The court also requested the US to inform it of all the measures taken in implementation of its order. However, Breard was executed on schedule on 14 April. Paraguay later withdrew the case.

In the LaGrand case, the court called on the US to "take all measures at its disposal" to ensure that Walter LaGrand (on death row at the time) was not executed pending a final decision of the court in the proceedings instituted by Germany and inform it of all the measures taken in implementation of the order. Nevertheless, Walter was executed shortly after the Court had issued the provisional measures order.

Neither of these augur well for India, so let's move onto the Avena case.

Case concerning Avena and other Mexican Nationals by Firstpost on Scribd


In this case — the judgment of which is reproduced above, the court observed that the US had not informed the 51 Mexican nationals involved in the case of their rights under Article 36 of the Vienna Convention on Consular Relations. Article 36 provides that when a national of a foreign country is arrested or detained on criminal or immigration charges, the detainee must be advised of the right to have the detainee’s consulate notified and that the detainee has the right to regular consultation with consular officials during detention and any trial. Accordingly, the court noted that the US has "breached the obligations incumbent upon it". The US agreed to review the convictions and death penalties handed to the Mexican nationals.

On Monday, India's agent in the case Joint Secretary (Pakistan-Afghanistan-Iran) Deepak Mittal noted, "India was informed on 25 March, 2016 that an Indian national was allegedly arrested on 3 March, 2016. India, on that very day, sought consular access to the said individual. The request did not evoke any response. On 30 March, 2016 India sent a reminder reiterating the request for consular access at the earliest. Despite a number of such reminders for consular access sent by India, there has been no response and all these requests fell on deaf ears."

He added that the trial that was held in a military court was an "egregious violation of the rights of consular access under the Vienna Convention (and) has led to serious miscarriage of justice".

Fourteen years on from the Avena case, it's impossible to predict what the ICJ's verdict will be, however, if the Avena case is anything to go by, India can afford to be a bit optimistic.


Published Date: May 18, 2017 10:48 am | Updated Date: May 18, 2017 10:48 am



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