Friday, 8 September 2017

PRELIMINARY VICTORY FOR INDIAIN KULBHUSAN JADHAV CASE: AS ICJ RULED STAY ON EXECUTION TILL FINAL DECISION

ICJ ruled in the favour of India invoking provisional measures under ICJ ,statutes art. 41. It has asked Pakistan to stay execution of Mr Jadhav, till the final decision  of the court.  The order of ICJ was stated by president, Ronnie Abraham with reason that it has passed the test of imminent risk and prejudice test which can affect the rights of the Mr Jadhav, questioned under the art. 36 of Vienna Convention on Consular Relation,1963. As the execution order by Pakistan came without any information and access opportunity availed to Mr Jadhav and consular access was denied after several request made by India. Provisionally court without going in to the other details ruled that as art. 36 Vienna Convention on consular elation read with 2008 consular agreement between India and Pakistan qualifies the provisional measures under art. 41 of the statutes and the court has the jurisdiction. Taking the note of urgency in the plea mentioned by India, the international court considered by interpreting the argument advanced by Pakistan that Vienna convention does not cover the case of terrorist or person involved in espionage.  The court considered that nowhere the expressed provision relating to espionage and terrorism bid is covered in Vienna convention. Hence the international court considered that execution sentence by Pakistan is imminent risk and prejudicial to the interest of Mr Jadhav, as asserted by India is qualified to put stay on the execution sentence. It requested Pakistan to provide all the information to the court and to stay the execution till the final decision of the court.
Court ordered on following grounds:
  1. Art.36 of Vienna Convention on Consular Relation, provides court the jurisdiction as both the parties are signatory to this convention and ICJ has jurisdiction.
  2. On the account of urgency and imminent risk which can affects the life of Mr. Jadhav, as it is matter of risk and prejudice to Mr jadhav, he was denied consular access and opportunity to be heard amounts to violation of international humam rights convention mentioned in ICCPR AND AMERICAN CONVENTION ON HUMAN RIGHTS
  3. Vienna convention  has expressed provision on the issue of espionage and terrorist act by the person with different nationality or in question.
Court has put stay on the execution of Mr. Jadhav on the ground of  human rights as provided in concurring opinion  judge of Trinido.
Relevant provision of international law used in this case:
Art 36 Vienna convention on consular  relation, 1963 which talks about consular assistance.
Communication and contact with nationals of the sending State
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his under this subparagraph;
(c) Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action
2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intendedsly opposes such action rights under this subparagraph;
Art.41 of the ICJ statutes, under which India has requested for provisional measures.
1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.
Art.36 ICJ  statutes wrt.  Jurisdiction. Accordingly provides Jurisdiction to this matter.
1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.
2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
A. the interpretation of a treaty;
B. any question of international law;
C. The existence of any fact which, if established, would constitute a breach of an international obligation;
D. The nature or extent of the reparation to be made for the breach of an international obligation.
3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their term.

Conclusion
The ICJ trial of Kulbhusan Jadav case, has once again reaffirmed the faith of international human rights protection regime and international rule of law. As it is too early to decide the fate of this case but it is preliminary victory for India and Indians at ICJ. With all possibility, it can be said that this case Judgment will also decide the future of International Law as it involves serious question of consular access as well right to fair and impartial trial which is fundamental human rights.

Ashuthosh Kumar
Assistant Professor

Department: Law

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