Tuesday, 3 April 2018

PRELIMINARY VICTORY FOR INDIA: 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 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 does has expressed provision on the issue of espionage and terrorist act by the person with different nationality or in question.
4.      Court held stay on the execution of mr jadhav on human rights ground also provided in concurring opinion og judge 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.
Article 36
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 terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.
Art.73 and Art.74 of procedure of rules of ICJ, 1978 under  Art. 30 of ICJ STATUES
SECTION D. INCIDENTAL PROCEEDINGS
 Subsection 1. Interim Protection Article 73
1.      A written request for the indication of provisional measures may be made by a party at any time during the course of the proceedings in the case in connection with which the request is made. 2. The request shall specify the reasons therefor, the possible consequences if it is not granted, and the measures requested. A certified copy shall forthwith be transmitted by the Registrar to the other party.
 Article 74
 1. A request for the indication of provisional measures shall have priority over all other cases.
2. The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency. 3. The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it. The Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings. 4. 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.
Bilateral agreement between india and Pakistan on consular relations. (was not considered by the court as this agreement is not deposited under the UN Secretary General Treatise Repositary Office )
RIGHTS TO FAIR TRIAL, ICCPR ART.6 and art. 9
Article 6
1.      Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the
2.      Art.9
Article 9. 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are estab lished by law.
 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be sub ject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement,
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Conclusion
Though this is preliminary respite for india as merits of this case is yet to be disussed with full details. But this decision of ICJ has acknowledged right to life of the individual which is basic human rights. As the liberal human rights jurisprudence favours mr Jadhav case. For time being it is a relief and victory of international human rights and rule of law that has stayed the execution of Mr jadhav. As india has to persue this case with more accuracy anns alertness by bringing each aspect of international rule of law to work in its rescue to prevent Mr Jadhav and surely India and inndian jurist and sharp acholar will leave no stone unturned in a bid not to save Mr jadhav from execution but also to bring him back safely thrugh diplomatic and ICJ channel. As india has suffered in case of martyr saurav kalia inhuman killing  or case of sarabjit. Still it has to cover upward hill task to bring international law in its favour depends on its sound argument to be advanced before the ICJ convincing in its favour which, I and all Indian citizen eagerly wish for. As this case has already brought individual human rights as exclusive subject of international law which is modern approach and subject of international which mostly believe that international law is law of nations only not a law of human beings.
Name: ASHUTOSH KUMAR
Designation: Assistant Professor
Department: Law Department

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