Pakistan has violated Vienna Convention; violated India’s right to consular access
The Hague: International Court of Justice has ruled that Pakistan had violated India’s rights to consular visits after Kulbhushan Jadhav’s arrest and directed Pakistan to review the death sentence ordered by the Military Court.
ICJ has directed Pakistan to take all measures at its disposal to ensure Jadhav is not executed to allow the judicial review of the conviction ordered by the Military Court
The International Court of Justice (ICJ), the principal judicial organ of the United Nations, delivered, on Wednesday 17 July 2019, its Judgment in the Jadhav case (India v. Pakistan).
The Judgement was announced at a public sitting that began at 3 p.m. at the Peace Palace in The Hague, during which Judge Abdulqawi Ahmed Yusuf, President of the Court, read the Court’s decision.
The Court noted: “In the present case, it is undisputed that Pakistan has not granted any Indian consular
officer access to Mr. Jadhav. India has made a number of requests for consular access since 25 March 2016 (see paragraphs 22 and 23 above). Pakistan responded to India’s request for consular access for the first time in its Note Verbale dated 21 March 2017, in which it stated that “the case for the consular access to the Indian national, Kulbushan Jadhev shall be considered, in the light of Indian side’s response to Pakistan’s request for assistance in investigation process and early dispensation of justice” (see paragraph 28 above). The Court is of the view that the alleged failure by India to co-operate in the investigation process in Pakistan does not relieve Pakistan of its obligation to grant consular access under Article 36, paragraph 1, of the Convention, and does not justify Pakistan’s denial of access to Mr. Jadhav by consular officers of India.”
ICJ has concluded that that Pakistan has breached the obligations incumbent on it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention, by denying consular officers of India access to Mr. Jadhav, contrary to their right to visit him, to converse and correspond with him, and to arrange for his legal representation.
The Court has also concluded that none of Pakistan’s allegations relating to abuse of rights by India justifies breaches by Pakistan of its obligations under Article 36 of the Vienna Convention. Pakistan’s arguments in this respect must therefore be rejected.
On 8 May 2017, India had instituted proceedings against Pakistan “for egregious violations of the Vienna Convention on Consular Relations, 1963” (the “Vienna Convention”) in the matter of the detention and trial of an Indian national, Kulbhushan Sudhir Jadhav, sentenced to death by a military court in Pakistan.
India contended that it was not informed of Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights. It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Jadhav, despite its repeated requests.
As the basis for the Court’s jurisdiction, the Applicant invokes Article 36, paragraph 1, of the Statute of the Court, by virtue of the operation of Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963.
On 8 May 2017, India also filed a request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court. It is explained in that request that the alleged violation of the Vienna Convention by Pakistan “has prevented India from exercising its rights under the Convention and has deprived the Indian national from the protection accorded under the Convention”.
Public hearings on the request for the indication of provisional measures were held on 15 May 2017.
On 18 May 2017, the Court made its Order on India’s request for the indication of provisional measures, stating that Pakistan should “take all measures at its disposal” to ensure that Kulbhushan Sudhir Jadhav is not executed pending the Court’s final decision in the case. The Court also ordered Pakistan to inform it of all the measures taken in implementation of that Order. It further decided to remain seized of the matters which formed the subject of the Order until final judgment.
13 December 2017 was fixed as the respective time-limits for the filing of a Memorial by India and a
Counter-Memorial by Pakistan.
On 19 January 2018, ICJ authorized the submission of a Reply by the Republic of India and of a Rejoinder by the Islamic Republic of Pakistan in the Jadhav Case (India v. Pakistan). By an Order of 17 January 2018, the Court had fixed 17 April 2018 and 17 July 2018 as the respective time-limits for the filing of these written pleadings. The Court had made its decision taking into account the views of the Parties and the circumstances of the case.
I wholeheartedly welcome the verdict of International Court of Justice in the case of Kulbhushan Jadhav. It is a great victory for India. /1
— Sushma Swaraj (@SushmaSwaraj) July 17, 2019