Mr. Kulbhushan Jadhav was arrested by Pakistan and been in Pakistan’s custody since 3rd March, 2016. India had requested consular access many a times to Pakistan. But, without granting any access, Pakistan’s Court Martial sentenced Jadhav to death on 10th April, 2017 for espionage, sabotage and terrorism. Against this injustice, India alleged violation of the Vienna Convention on Consular Access of 24 April, 1963 in the International Court of Justice.
- Whether the International Court of Justice has prima facie jurisdiction under Article I of the Optional Protocol?
- Whether the sentence of the Court Martial of the Pakistan is in defiance of the Article 36 of the Vienna Convention on Consular Access?
- Can the court order for provisional measures for preventing the execution of Mr. Jadhav?
With regarding to the issue of maintainability, the court held that it was sufficient if the case can prima facie fall within the scope of Article 36 of the Vienna Convention. The Article 36 deals with the rights of the countries to get consular access. Under the Article I of the Optional Protocol, the International Court of Justice have jurisdiction when a case concerning the interpretation and the applicability of the Vienna Convention is brought up. Therefore, the court denied Pakistan’s objections towards the maintainability and upheld its jurisdiction.
Thereafter, Pakistan argued thatdoes not apply to cases of espionage, sabotage and terrorism. The court rejected this argument by stating that no legal analysis has been given regarding that by either parties. The court found that the rights invoked by India are plausible.
The court, then, turned towards the possibility for ordering provisional measures. There requires an irreparable prejudice and urgency for ordering provisional measures into a given case. Pakistan argued that there was no urgency. Jadhav had the legal option to apply for the clemency within 150 days. Therefore, the normal legal procedures of the Pakistan’s system itself can be sought to delay and re-examine the trial. But, the court rejected this argument too.
The court held that there is a risk of irreparable prejudice to India by the mere fact that as long as Mr. Jadhav is under the death sentence, he can be executed by Pakistan at any moment.
Therefore, the court ordered Pakistan to take all such measures to prevent the execution of Mr. Jadhav till the present proceedings ended and also, inform the court about the measures taken.
India was able to successfully stall the execution of Mr. Kulbhushan Sudhir Jadhav.
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