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Kulbhushan Jadhav case at ICJ: Key observations made in interim order by world court

The International Court of Justice (ICJ) gave an interim order in the Kulbhushan Jadhav case on Thursday in India's favour, thus telling Pakistan to put on hold the planned execution of Jadhav. The order not only clarifies many things that India sought in its application and prevents Pakistan from going ahead with the death sentence, it also rejected the claim of no jurisdiction as raised by Pakistan during its oral observations.

Here are some key points from the interim order:

I. On Jurisdiction of the Court

The ICJ notes 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 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.

File photo of Kulbhushan Jadhav. PTI

File photo of Kulbhushan Jadhav. PTI

In the view of the court, this is sufficient to establish that it has prima facie jurisdiction under Article I of - 2 - the Optional Protocol. The court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.

II. On consular access
It observes 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

III. On Validity of measures India sought

The court then focuses on the issue of the link between the rights claimed and the provisional measures requested. It considers that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved. Therefore, a link exists between the rights claimed by India and the provisional measures being sought.

IV. On Kulbhushan Jadhav's executive risk

The court then examines whether there is a risk of irreparable prejudice and urgency. It considers 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 notes 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 is satisfied that there is urgency in the present case.

For more details and live updates follow our blog here.


Updated Date: May 18, 2017 20:08 PM

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