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Kulbhushan Jadhav case at ICJ highlights: Court tells Pakistan to put execution on hold; Modi expresses satisfaction

The International Court of Justice (ICJ) will pronounce its verdict on the Kulbhushan Jadhav case on Thursday afternoon, 10 days after India approached it demanding immediate suspension of the death sentence given to its former navy officer by a Pakistan military court.

FP Staff May 18, 2017 17:17:26 IST
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Kulbhushan Jadhav case at ICJ highlights: Court tells Pakistan to put execution on hold; Modi expresses satisfaction

Highlights

16:57 (ist)

Key observations made by ICJ in the interim order on the Kulbhushan Jadhav case

The 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. 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.

"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 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
 
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 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.

15:05 (ist)

ICJ's decision may take note of illusionary nature of Pakistan's 150-day relief claim

When President of the Court Ronny Abraham sits down to read the ICJ's decision at the Hague-based Peace Palace on Thursday, he will essentially rule on whether prima facie India has a case at all before the court. In ICJ's words, according to the media statement uploaded on its website it is going to pronounce its "Order on the request for the indication of provisional measures made by India in the Jadhav Case".

It is to be noted that at no stage of the hearing did Pakistan give any assurance that the 150-day deadline is sacrosanct. This is expected to strengthen India's case and the court's limited verdict today. Read the full report here

14:39 (ist)

A fundamental reason why India will lose this case

Monday's hearing before the International Court of Justice at the Hague may appear to be a victory for India in terms of political points scored back home, but there were some key legal issues that Pakistan did point out that require our consideration.

The legal issues stem from the fact that there was a 2008 bilateral agreement on consular access. An agreement that India sought not to rely on at the Hague on Monday and merely restricted itself to the Vienna Convention on Consular Relations. In doing so, India made the point that the agreement had not been registered with the United Nations and therefore, India would have to restrict the argument to the Vienna Convention on Consular Relations alone.

By refusing to acknowledge the 2008 Agreement, India could have well just terminated that agreement. The agreement is critical for the fate of many Indian fishermen who end up straying into Pakistani waters year after year as it called for the exchange of prisoner lists and consular access. Read the full report here

14:04 (ist)

Even favourable ruling by ICJ today may not save Kulbhushan Jadhav: SC lawyers

Even if the provisional measures of the International Court of Justice (ICJ) are in India's favour on Thursday, Pakistan could still go ahead with the execution of Kulbhushan Jadhav, wrote Supreme Court lawyers Sanjay Hegde and Pranjal Kishore in this Business Standard article. 

Hegde and Kishore argued that the ICJ proceedings are a legal forum for declarations of legitimacy, adding that international law is still largely "a law without sanctions". In fact, according to them, an order on provisional measures will only be the beginning of a longer journey which will entail long drawn proceedings on the merits of the case.

13:14 (ist)

How ICJ has ruled on death penalty cases in the past

In terms of precedents in the history of the ICJ, there are three previous death penalty/Vienna Convention-related cases wherein the timelines and results are instructive. It remains to be seen whether there will be any major deviation from these decisions. Click here for the detailed report on the previous cases. 

13:05 (ist)

All you need to know about President of the Court Ronny Abraham

President of the Court Ronny Abraham, will read out the decision at midday local time (3.30 pm IST). The case — a rare foray for the two nations into the international courts after 18 years — has highlighted the recent sharp uptick in tensions between the two nuclear-armed rivals.

"A public sitting will take place at 12 noon at the Peace Palace in The Hague, during which Judge Ronny Abraham, President of the Court, will read the court's decision," the international court said in a release on Wednesday.

As the world court prepares to read out the judgment in this highly-awaited case, here's what we know about the president of ICJ — Ronny Abraham.

Abraham became the member of ICJ on 15 February 2005. He was elected as the president of the UN court on 6 February 2015. Before the ICJ appointment, from 1998 to 2005, as head of the Legal Affairs Directorate at the French ministry of foreign affairs, he was in charge of advising the government on legal matters in the fields of general international public law, European Union law, international human rights law, the law of the sea and the Antarctic.

Read the full report here

13:03 (ist)

Six opinions you must to read before judgment is pronounced

In a statement, the ICJ announced that it will "deliver its order on the request for the indication of provisional measures made by India in the Jadhav Case (India versus Pakistan), on Thursday" at noon (3.30 pm IST) in a public sitting.

Judge Ronny Abraham, president of the court, will read the decision, it said. The decision comes after India sought the court's intervention on Monday for an immediate suspension of Jadhav's death sentence, fearing that the Indian national may be executed even before the ICJ decided the case.

The following is a list of articles and opinions, previously published on Firstpost, on the Jadhav trial:

15:27 (ist)

India solely relies on Article 1 of the Optional Protocol concerning the Compulsory Settlement (Optional Protocol to the Vienna Convention on Consular Access) read with Article 36, paragraph 1 of the Statute of the International Court of Justice to establish the jurisdiction of the ICJ in this case. Such a jurisdiction conferred by the Optional Protocol to the Vienna Convention on Consular Access cannot be limited by limitations/reservations to jurisdiction under Article 36, paragraph 2 of the Statute of the International Court of Justice (as Pakistan had claimed in Aerial Incident of 10 August 1999 case). This has been the basis of the jurisdiction in earlier cases before the ICJ- The LaGrand Case and Avena and Other Mexican Nationals.
 

India also clarified that the basis of jurisdiction is de hors the Agreement on Consular Access between India and Pakistan. Pakistan may, however, argue that this Agreement is "special law" overriding the "general law"; and does not provide a basis for approaching the ICJ.

 
It must be noted that basing an argument on the Optional Protocol may be a problem in establishing claims of violation of any the other treaty such as the International Covenant on Civil and Political Rights as has been requested by India in its application.

13:18 (ist)

Pakistan wants a stay on proceedings immediately

Speaking to CNN-News18, top Pakistan government sources said that Jadhav is alive and hanging will happen only after all judicial and appeal process over. The source also told the channel that Pakistan 'desperately' wants a stay on proceedings. "Pakistan authorities have opened all backchannels to put stay on proceedings."

News18 further reported that Pakistan sent emissary from UAE who is close friend of ICJ judge to put stay on proceedings. Emissary has been asked to convince judge that there are still three important steps to go before hanging. The source also confirmed to the channel that meeting with Jindal and Prime Minister Nawaz Sharif was part of backchannels efforts by Pakistan government to ease out current situation.

LIVE NEWS and UPDATES

May 18, 2017 - 18:35 (IST)

We hope Pakistan will follow International law: Gopal Baglay, spokesperson, MEA

Answering questions at a media conference on the Kulbhushan Jadhav case, Gopal Baglay expressed hope that Pakistan will follow the international court's order. 

"The ICJ order clearly says that is binding internationally and legally. India is a law abiding country, we follow international law. We believe that an internationally binding law will be followed. At this point, we can't speculate.

When asked about the visas for Jadhav's parents, the ministry said that it has not received any updates on the same from Pakistan.

Baglay, however, refused to comment on the future course of action if Pakistan refuses to follow the ICJ order. "This matter is subjudice. As to what course the matter will take, it's best not to go into it at the moment. The court has clearly said that till a final decision comes in the matter, it has told Pakistan what it needs to do and what not do," he added.

The MEA also expressed the ministry's willingness to talk parallelly with Pakistan on the case. "We have already demanded consular access. Our case is that according to Vienna convention, Pakistan should allow consular access to Jadhav. Even the ICJ president said that there's a dispute between the two parties," he said.

Baglay also said that there's no clarity as to whether or not Jadhav has filed an appeal, the date for which expires on 19 May. "Even the ICJ is not aware of it. We do not have any information and no official information has been given to us. What we know is that Jadhav's mother has sent an application to Pakistan."

May 18, 2017 - 18:10 (IST)

The ICJ order essential step in saving Jadhav's life: Gopal Baglay, MEA spokesperson

The Ministry of External Affairs expressed its relief on the interim order that the International Court of Justice passed on Thursday. Gopal Baglay, spokesperson, MEA said, "The ICJ at Hague a unanimous, favourable and ambiguous order on India's request for provisional measures on the Kulbhushan Jadhav case. It has told Pakistan to ensure Jadhav is not executed until the court completes the hearing,"  

"This is a matter of great relief and I am sure every Indian is equally relieved. Kulbhushan Jadhav can not be executed by Pakistan. The MEA had assured the Parliament that the govt will do everything to ensure Jadhav is not executed in Pakistan. And this interim order ensures that commitment," he added.

"The provisional release which has been guaranteed an essential first step in saving Jadhav's life and the rights that Pakistan violated in the process. We welcome the decision." Gopal said.

Commenting on Pakistan's reaction to the case where it downplayed the interim order, Baglay said that reiterated that the order is "binding" on Pakistan.

May 18, 2017 - 17:59 (IST)

Trial against Kulbhushan Jadhav is illegal and abusive: PP Chaudhary, MoS Law

May 18, 2017 - 17:57 (IST)

Kulbhushan Jadhav's friends distribute celebrate after ICJ interim order | ANI

May 18, 2017 - 17:52 (IST)

Kulbhushan Jadhav case a turning point in India's foreign policy

India's decision to move International Court of Justice on Kulbhushan Jadhav drew many sceptics to conclude that this move turns a bilateral issue into a multilateral one and Pakistan will seize this chance to highlight the trouble in Kashmir. 

It was argued that India has nothing to gain and everything to lose from highlighting the Jadhav case because it opens us to international scrutiny. India has long remained a victim of defeatism on foreign policy and it required a bold step from the Narendra Modi government to remove the mental cobwebs.

The interim ICJ order in India's favour should instil confidence in us. That India isn't a rogue state like Pakistan and a rule-based state that respects international laws are more likely to benefit it from moving disputes from a bilateral to multilateral framework especially when it concerns irresponsible, revisionist states like Pakistan. 

The move to take the Jadhav case to the ICJ, therefore, may be read as a turning point in India's foreign policy.

May 18, 2017 - 17:44 (IST)

Pakistan unhappy with ICJ order, Nafees Zakaria says 'India hiding its real face'

akistan on Thursday accused India of "hiding its real face" in the Kulbhushan Jadhav case. Addressing a gathering of mediapesons, Zakria accused India of "trying to defend a person whose actions have led to the killing of Pakistani citizens". 

"India desperately tried to divert the world attention by presenting Kulbhushan Jadhav's case from humanitarian angle," Zakaria said.

The Pakistan Foreign Office spokesperson also accused India of violating several sections in the bilateral agreement signed between the two countries.

It was evident from Zakaria's statements that Pakistan is not happy with the the interim order. Zakaria also said that Pakistan will present solid evidence against Jadhav in the international court. 

 

May 18, 2017 - 17:26 (IST)

ICJ's order gives people of India a deep sense of satisfaction and relief: Rajnath Singh | ANI

May 18, 2017 - 17:25 (IST)

Celebrations outside Kulbhushan Jadhav's residence | ANI

May 18, 2017 - 17:24 (IST)

Narendra Modi expresses satisfaction at ICJ judgement in Kulbhushan Jadhav case

New Delhi: Prime Minister Narendra Modi on Thursday expressed satisfaction at the order of the International Court of Justice (ICJ) which stayed the execution of Indian national Kulbhushan Jadhav who is on death row in Pakistan.

He spoke to External Affairs Minister Sushma Swaraj to thank her and appreciated the efforts of advocate Harish Salve who represented India in the case, official sources said.

The Prime Minister's reaction came after the 11-judge bench of the ICJ unanimously stayed the execution of Jadhav who has been sentenced to death by a Pakistan military court on charges of espionage and subversive activities.

— PTI

May 18, 2017 - 17:15 (IST)

Celebrations have begun outside Kulbhushan Jadhav's residence​ | ANI

The International Court of Justice (ICJ) will pronounce its verdict on the Kulbhushan Jadhav case on Thursday afternoon, 10 days after India approached it demanding immediate suspension of the death sentence given to its former navy officer by a Pakistan military court.

India, whose request for consular access to Jadhav was turned down 16 times, had approached the ICJ on 8 May accusing Pakistan of violating the Vienna Convention and conducting a "farcical trial" for convicting Jadhav without a "shred of evidence" following which the court had stayed his execution.

Kulbhushan Jadhav case at ICJ highlights Court tells Pakistan to put execution on hold Modi expresses satisfaction

File image of Kulbhushan Jadhav. PTI

During its submission to the ICJ on 15 May at a public hearing, India had demanded the immediate annulment of Jadhav's death sentence, expressing fear that Pakistan could execute him even before the hearing at the ICJ was over.

While India asserted that Jadhav was kidnapped from Iran where he was involved in business activities after retiring from the Indian Navy, Pakistan claims to have arrested Jadhav from its restive Balochistan province.

On its part, Pakistan told the ICJ that Vienna Convention provisions on consular access were not intended for a "spy" involved in terror activities and charged India with using the world body as a stage for "political theatre" in the Jadhav case.

Here's the full text of what transpired at the hearing, and the arguments put forth by the two countries:

India's session:

Verbatim record of India's oral obsevation at ICJ in Kulbushan Jadav case by Firstpost on Scribd

Pakistan's session:

Verbatim record of Pakistan's oral obsevation at ICJ in Kulbushan Jadav case by Firstpost on Scribd

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With inputs from PTI

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