Stay on Kulbhushan Jadhav death sentence: Here's India's track record at International Court of Justice

The International Court of Justice at the Hague in the Netherlands has put a stay on the death sentence of Kulbhushan Jadhav by Pakistani military court.

In a tweet on Tuesday, Ministry of External Affairs Sushma Swaraj said that she has spoken to Jadhav's mother and she has been informed about the order of President, ICJ. She also added that Harish Salve will be representing the country.

File photo of former Indian naval officer Kulbhushan Jadhav. PTI

File photo of former Indian naval officer Kulbhushan Jadhav. PTI

In a statement issued on Tuesday, the ICJ said: "On 8 May, 2017, the Republic of India instituted proceedings against the Islamic Republic of Pakistan, accusing the latter of egregious violations of the Vienna Convention on Consular Relations' (hereinafter the Vienna Convention') in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav, sentenced to death by a military court in Pakistan."

"The Applicant contends that it was not informed of Mr. Jadhav's detention until long after his arrest and that Pakistan failed to inform the accused of his rights," the statement said.

Under Article 74, paragraph 4 of the ICJ rules, which says "pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects", ICJ President Justice Ronny Abraham has written to Pakistan seeking the suspension of the sentence.

According to Hindustan Times, India has approached the ICJ for the first time in 46 years. In 1971, following a hijacking incident, India suspended Pakistan's overflights. Pakistan had claimed that India cannot suspend it's overflight and land rights. The ICJ had ruled in India's favour. The ICJ's judgment stated: "In its judgment in the case concerning the Appeal relating to the Jurisdiction of the ICAO Council (India v. Pakistan), the Court, by 13 votes to 3, rejected the Government of Pakistan's objections on the question of its competence and found that it had jurisdiction to entertain India's appeal."

Pakistan has taken India to the ICJ twice, once in 1973 and then again in 1999. The application was on the jurisdiction rights over 195 Pakistani nationals accused of committing genocide in the 1971 Bangladesh Liberation War and transfer of their custody to Bangladesh from India. Pakistan, however, withdrew the case the next year.

In 1999, Pakistan had approached the ICJ stating that India should be held responsible under the international law for shooting down an aircraft of the Pakistan navy and demanded that India should make reparations. The ICJ ruled in favour of India.

Regarding the case, The American Society of International Law website states: "Rejecting Pakistan's arguments, the Court pointed out that, whatever may have been the reasons causing India to limit the scope of its acceptance of the Court's compulsory jurisdiction in the way it did, it must abide by this limitation expressing the intention of India as the declarant State. Given that Pakistan and India are both members of the Commonwealth of Nations, the Optional Clause provides no basis of jurisdiction in this case." 

In the Marshal Islands vs India case, Marshal Islands (applicant) "claimed India breached customary international law obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament." In in its judgment, the court said: "But the Court has found that no dispute existed between the Parties prior to the filing of the Application, and consequently it lacks jurisdiction to consider these questions."

In the 1955 case concerning the right of passage over India territory between India and Portugal, the court rejected India's argument.

In Jadhav's case, India has approached ICJ on the ground that the Vienna Convention on Consular relations are being flouted by Pakistan and "India can invoke the jurisdiction of ICJ from the protocol", according to News18.

Meanwhile, Salve said, "We may have a hearing on Monday or a scheduling on Monday. We needed immediate relief. Whenever Pakistan is willing to be engaged we are ready."

Pakistani officials on Wednesday said that it is looking into the judgment of the ICJ and would submit a formal response in two days.

With inputs from agencies

Updated Date: May 10, 2017 21:54 PM

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