India

Case BriefsInternational Courts

Permanent Court of Arbitration: In an unanimous decision by the Arbitral Tribunal concerning the “Enrica Lexie Incident”, it was held that Italy has breached Article 87, Paragraph 1, sub-paragraph (a) and Article 90 of the United Nations Convention for the Law of the Sea (UNCLOS) thereby constituting adequate satisfaction for the injury to India’s non-material interests. It was further held that as a result of the breach, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property (including to the ‘St. Antony’) and moral harm suffered by the captain and other crew members of the ‘St. Antony’, which by its nature cannot be made good through restitution.

As per the facts, on 15-02-2012, two Indian fishermen were killed off the coast of Kerala, aboard the St. Antony. India alleged that the two Italian marines aboard the Italian-flagged commercial oil tanker MV Enrica Lexie killed the fishermen. The Indian Navy then intercepted MV Enrica Lexie and detained the two Italian marines, therefore giving rise to the instant dispute between India and Italy.

Italy contended before the Tribunal that by directing and inducing the Enrica Lexie to change course and proceed into India’s territorial sea through a ruse, as well as by interdicting the Enrica Lexie and escorting her to Kochi, India violated Italy’s freedom of navigation, in breach of UNCLOS Article 87(1)(a), and Italy’s exclusive jurisdiction over the Enrica Lexie, in breach of Article 92 of UNCLOS and abused its right to seek Italy’s cooperation in the repression of piracy, in breach of Article 300 read in conjunction with Article 100 of UNCLOS. It was further contended that by initiating criminal proceedings against the Italian marines, India violated Italy’s exclusive right to institute penal or disciplinary proceedings against the Marines, in breach of Article 97(1) of UNCLOS. The Indian side however contended that by firing at St. Anthony and killing the fishermen aboard that vessel, Italy violated India’s sovereign rights under Article 56 of UNCLOS and India’s freedom and right of navigation under Articles 87 and 90 of UNCLOS.     

The Tribunal comprising of Vladimir Golitsyn, J. (President), Jin-Hyun Paik, Patrick Robinson, JJ., Prof. Francesco Francioni and Dr  Pemmaraju Sreenivasa Rao (Arbitrators) perused the facts and the contentions put forth by the Countries. It was observed that the instant dispute involved the interpretation/ application of the UNCLOS. Determining that the Arbitral Tribunal has jurisdiction over the dispute, it was unanimously held that India’s counter-claims are admissible and that Italy has violated aforementioned provisions of the UNCLOS. However with a ratio of 3:2, the Tribunal also held that the Marines- Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, are entitled to immunity in relation to the acts that they committed during the incident, and that India is precluded from exercising its criminal jurisdiction over the Marines. Taking note of Italy’s commitment to resume criminal investigations into the St. Anthony firing incident, the Tribunal directed India to take the necessary steps in order to cease the exercise its criminal jurisdiction over the Marines. [Italian Republic v.  Republic of India, PCA Case No. 2015-28, decided on 02-07-2020] 

COVID 19Hot Off The PressNews

Government of India has undertaken evacuation operations from several countries in the wake of the COVID-19 outbreak to bring back Indian citizens as well as nationals from other countries.

As it became clear that Iran was facing a COVID-19 outbreak, Government of India started to undertake measures to ensure safety and security of its citizens in the country. Indian nationals in Iran include pilgrims, students and fishermen. On 7th March, 108 samples were received from Iran. These samples are being tested at the laboratory of AIIMS. Also, six scientists from the Indian Council of Medical Research (ICMR) have been stationed in Iran. Equipment and reagents have also been dispatched to enable them to setup a lab. The first batch of 58 evacuees from Iran has arrived on 10th March, 2020 with 25 men, 31 women and 2 children on board. All evacuees are asymptomatic at present.

So far, Government of India has evacuated 948 passengers from COVID-19 affected countries. Out of these, 900 are Indian citizens and 48 belonging to different nationalities including Maldives, Myanmar, Bangladesh, China, USA, Madagascar, Sri Lanka, Nepal, South Africa and Peru.

Earlier, as Wuhan city in Hubei province of China became the epicenter of the COVID-19 and there were hundreds of Indians stuck in the city, Air India operated two special flights for the evacuation efforts which brought back 654 passengers that included 647 Indian citizens.

The first batch consisting of 324 Indians were evacuated from Wuhan, China on 1st February. 104 of these were quarantined for monitoring at ITBP Chhawla camp and the rest 220 were housed in the army facility at Manesar. The second batch of 330 passengers (including 7 Maldivian citizens and two Indian Embassy officials who were on the ground to coordinate the evacuation efforts) arrived in India on 3rd February. 300 of these (including 7 Maldivians) were housed at ITBP Chhawla Camp and 30 were shifted to Manesar facility for monitoring.

All of these evacuees were placed in the isolation facilities for 14 days. They were tested twice and were found negative for COVID-19. They were discharged on 18th February, 2020.

On 26th February, Indian Air Force evacuated 112 passengers from Hubei province in China. Among these 76 were Indian citizens. The other nationals evacuated by Indian Air Force  included citizens of Myanmar, Bangladesh, Maldives, China, USA, Madagascar and South Africa. The passengers reached India on 27th February, 2020 and subsequently are housed at ITBP camp for a period of 14 days, as per protocol. They have tested negative for COVID-19 in the first test. The IAF flight had also carried medical supplies which were given as good-will gesture to China.

In addition, for the case involving the Japanese Cruise Ship, Diamond Princess, on 27th February, Air India flight carried an evacuation operation bringing back 124 passengers including 5 foreign nationals from Sri Lanka, Nepal, South Africa and Peru, from Port of Yokohama in Japan. The evacuees are housed at army facility in Manesar. They have tested negative in the first test.

As a measure of prevention, it is reiterated that as per the Travel Advisory issued by Government of India on 10th March, 2020, passengers with travel history to China, Hong Kong, Republic of Korea, Japan, Italy, Thailand, Singapore, Iran, Malaysia, France, Spain and Germany should undergo self-imposed quarantine for a period of 14 days from the date of their arrival, and their employers should facilitate work-from-home for such employees during this period.

[Source: PIB]

[Press Release dt. 11-03-2020]

NewsTreaties/Conventions/International Agreements

With entering the Agreement with Republic of Portugal, it will open avenues for cooperation to promote Maritime Transport between the two countries for better operation of their merchant fleets, cooperation to harmonize and unified their position with International Organization Institution, forums and conferences related to Maritime and Port activities.

It will also help both the countries to coordinate accession to international conventions so that the objectives of this Agreement can be strengthened.

Ministry of Shipping

[Press Release dt. 14-02-2020]

[Source: PIB]

Cabinet DecisionsLegislation Updates

The Union Cabinet was apprised of a Memorandum of Understanding (MoU) signed between India and Iceland in the field of Fisheries.  The MoU was signed on 10-09-2019.

The salient features of the MoU are:

  1. Creation of facilities for exchange of scientists and technical experts and their proper placement, especially in areas of estimating Total Allowable Catches in offshore and deep sea areas;
  2. Provision of training to fisheries professionals from key fisheries institutions in the various management aspects on areas of modern fisheries management and fish processing
  3. Exchange of scientific literature research findings and other information.
  4. Exchange of experts/expertise to study the prospects of fishing.  Processing and marketing of products from high seas fisheries for entrepreneurship development.

The MoU will strengthen the existing friendly relations between India and Iceland and will enhance consultation and cooperation on Fisheries including consultation on bilateral issues.

Cabinet

[Press Release dt. 12-02-2020]

[Source: PIB]

Cabinet DecisionsLegislation Updates

Union Cabinet has given its approval for the Memorandum of Understanding to be signed between Geological Survey of India (GSI), Ministry of Mines of the Republic of India and Geological Survey of Brazil – CPRM, Ministry of Mines and Energy of the Federative Republic of Brazil on “Cooperation in field of Geology and Mineral Resources”.

The MoU will provide an institutional mechanism between the Geological Survey of India, Ministry of Mines of the Republic of India and Geological Survey of Brazil – CPRM, Ministry of Mines and Energy of the Federative Republic of Brazil for cooperation in the field of Geology and Mineral Resources.

[Source: PIB]

[Cabinet]

[Press Release dt. 22-01-2020]

 

Cabinet DecisionsLegislation Updates

Union Cabinet has been apprised of the Agreement on cooperation in polar science between the Ministry of Earth Sciences (MoES), India and the Ministry of Education and Research, Sweden. The Memorandum of Understanding (MoU) was signed on 02-12-2019 during the visit of Their Majesties of the Kingdom of Sweden to India.

India and Sweden are both signatories to the Antarctic Treaty and to the Protocol to the Antarctic Treaty on Environmental Protection. Sweden as one of the eight “Arctic States” is one of the Member states in the Arctic Council whereas India has the Observer Status in the Arctic Council. Sweden has a vigorous scientific program in the Polar Regions, both in Arctic and Antarctic. India likewise, has sustained scientific research programs in both the Polar Regions as well as in the oceanic realm.

The collaboration between India and Sweden in polar science will enable the sharing of the expertise available with both Countries.

Cabinet

[Press Release dt. 08-01-2020]

[Source: PIB]

Cabinet DecisionsLegislation Updates

Union Cabinet has given its approval forsigning a Memorandum of Understanding (MoU) with the Department for International Development (Government of United Kingdom) on 02.12.2019 for Enabling Energy Self-Sufficiency for Indian Railways.

Implementation Strategy and targets

The   MoU   signed   by   Ministry   of   Railways   with   Department for   International Development (Government of United Kingdom) for Enabling Energy Self-Sufficiency for Indian Railways with the following understanding: –

a.  The Parties agree on the scope of activities to be undertaken as a part of the endeavor for enabling energy efficiency and energy self-sufficiency for the Indian Railways.

b.   Each Participant will, subject to the laws, rules, regulations and national policies fromtime to time in force  governing  the  subject  matter  in  their  respective  countries, endeavour to take  necessary steps to enable energy efficiency and  energy  self-sufficiency for Indian Railways.

c.   The parties agree for Energy planning for Indian Railways i.e. Solar & Wind Energysector, Adopting energy efficiency practices, Enabling Fuel efficiency, Electric Vehiclecharging infrastructure deployment, Battery operated Shunting Locomotives. Capacitydevelopment like training programmes, industrial visits, field visits etc. or any other form co-operation may be approved in writing by the Participants.

d.  The Participants will coordinate the activities, as appropriate, under this MoU. Nothing in this MoU will be construed to prejudice existing or future arrangements for co­operation between the participants.

e.   Blither participant may request in writing a revision, modification or amendment to all or any part of this MoU. Any revision, modification or amendment approved by the Participants will form part of the revised MoU. Such revision, modification or amendment will come into effect on such date as may be determined by the Participants.

f.   This Memorandum of Understanding shall come into force on its signing by the duly authorized representatives of the Parties and any of the Party may terminate this MoU by written communication addressed to the other, in which case, termination of MoU shall take effect six months after receipt of such written communication.

g.  The termination of this MoU will not affect the implementation of ongoing projects and / or programmes which have been agreed before the date of the termination of this MoU. Necessarily, areas of cooperation and forms of cooperation will continue to be enforced for ongoing projects and programmes which have been agreed before the date of the termination of this MoU.

h.  Any dispute or difference between the Parties shall be settled through mutual consultations and negotiations between the participants.

Background:

Ministry of Railways have signed MoUs/ MoCs for co-operation covering technical, policy, research & commercial aspects in field of development of energy sector. The objective of the programme is to support structural reforms and the integration of renewable energy into the electricity grid. To be more specific, it aims to achieve more sustainable and inclusive economic growth, better energy security and reduced carbon emissions.

The MoUs/ MoCs provide a platform for Indian Railways to interact and share the latest developments and knowledge in the railway sector. The MoUs/ MoCs facilitate exchange of technical experts, reports and technical documents, training and seminars/workshops focusing on specific technology areas like Renewable Energy and other interactions for knowledge sharing.

Cabinet

[Press Release dt. 08-01-2020]

[Source: PIB]

Cabinet DecisionsLegislation Updates

The Union Cabinet has given its approval for an Agreement between Government of the Republic of India and Government of Mongolia on Cooperation in the Exploration and Uses of Outer Space for Peaceful and Civilian Purposes.

The Agreement was signed at New Delhi on 20 September 2019 during the state visit of the President of Mongolia to India.

Details:

  • This Agreement shall enable pursuing the following potential interest areas of cooperation such as space science, technology and applications including remote sensing of the earth; satellite communication and satellite-based navigation; Space science and planetary exploration; use of spacecraft and space systems and ground system; and application of space technology.
  • The Agreement would lead to set up a Joint Working Group, drawing members from DOS/ISRO and Communications and Information Technology Authority of the Government of Mongolia, which will further work out the plan of action including the time-frame and the means of implementing this Agreement.

Financial Implications:

The financial arrangements to cover expenses for the co-operative activities undertaken within the framework of this Agreement will be jointly decided by the respective Participants on a case-by-case basis subject to the availability of funds.

Benefits:

Cooperation with and the Government of Mongolia through this Agreement would lead to develop a joint activity in the field of application of space technologies for the benefit of humanity. Thus all sections and regions of the country will get benefited.

Implementation Strategy and Targets:

The signed Agreement would lead to concluding specific implementing Arrangements and setting up of Joint Working Group, to work out the plan of action including the time-frame and the means of implementing this Agreement.

Impact:

The signed Agreement will provide impetus to explore newer research activities and application possibilities in the field of remote sensing of the earth; satellite communication; satellite navigation; space science and exploration of outer space.

Background:

  • Department of Space (DOS) and the Mongolian Ministry of Infrastructure signed an ‘Agreement for cooperation in space science, technology and applications’ on January 15, 2004. Apart from training of Mongolian officials on space technology application, no major cooperative activities have been taken up. When our Embassy in Mongolia was contacted for reviving the cooperation, it is understood that the Mongolian Ministry of Infrastructure is abolished and the space activities are presently handled by the Communication and Information Technology Authority (CITA) of Mongolia.
  • The embassy has further mentioned that, b high-level delegation from Mongolia is expected to visit India during September 2019 and space cooperation would be one of the agenda. Embassy requested ISRO to share a draft Agreement on space cooperation for further taking up with CITA. Accordingly, a draft Agreement for India-Mongolia Space cooperation was drafted and shared with

Embassy, with approval of Chairman, ISRO/ Secretary, DOS. Subsequently, the Mongolian side has given its concurrence and both sides have arrived at workable versions and proposed to sign the agreement during high-level delegation visit from Mongolia.

Department of Space

[Source: PIB]

[Press Release dt. 08-01-2020]

Cabinet DecisionsLegislation Updates

Union Cabinet has given ex-post facto approval on an Agreement between the Ministry of Home Affairs of the Republic of India and the Ministry of Internal Affairs of the Republic of Uzbekistan on Cooperation in the field of Combating Transnational Organized Crime and International Terrorism, that was signed by Union Home Minister and the Minister of Internal Affairs, the Republic of Uzbekistan at New Delhi on 20-11-2019 during the visit of Hon’ble Minister of Internal Affairs of Republic of Uzbekistan to India.

The agreement aims to improve the effectiveness of both countries in prevention and suppression of crimes including crime relating to terrorism and its financing, organized crime and to establish a framework for enhancing cooperation between the officials of intelligence and law-enforcement agencies of the two countries, in line with domestic laws and international obligations.

Cabinet

[Source: PIB]

[Press Release dt. 24-12-2019]

Cabinet DecisionsLegislation Updates

The Union Cabinet has given ex-post facto approval on an Agreement on Security Cooperation between the Government of the Republic of India and the Government of the Kingdom of Saudi Arabia that was signed on 29-10-2019 during the visit of Hon’ble Prime Minister to Saudi Arabia.

The Agreement aims to improve the effectiveness of both countries in the prevention and suppression of crimes including crime relating to terrorism and its financing and organized crime and to establish a framework for enhancing cooperation between the officials of intelligence and law-enforcement agencies of the two countries, in line with national and international obligations.

Cabinet

[Press Release dt. 24-12-2019]

[Source: PIB]

NewsTreaties/Conventions/International Agreements

The Union Cabinet has given approval for the Memorandum of Understanding (MoU) between India and Myanmar on bilateral cooperation for the Prevention of Trafficking in Persons; Rescue, Recovery, Repatriation and Re-integration of Victims of Trafficking.

The MoU aims:

  • To strengthen the bonds of friendship between the two countries and to increase bilateral cooperation on the issues of prevention, rescue, recovery and repatriation related to human trafficking.
  • To strengthen cooperation to prevent all forms of human trafficking and to protect and assist the victims of trafficking
  • Ensure speedy investigation and prosecution of traffickers and organized crime syndicates in either country.
  • To strengthen immigration and border controls cooperation and implementation of strategies with relevant Ministries and Organizations to prevent trafficking in persons.
  • Setting up Working Groups/ Task Force to make efforts to prevent human trafficking
  • Develop and share database on traffickers and victims of trafficking in a safe and confidential manner and exchange information through designated focal points of India and Myanmar
  • Capacity building programmes for the agencies concerned of both countries.
  • Formulation and adoption of Standard Operating Procedures for Rescue, Recovery, Repatriation and Integration of the victims of trafficking.

Background:

Human Trafficking has national as well as international ramifications. The complex nature of human trafficking calls for a multidimensional strategy in tackling it at domestic, regional and international level. Being global in scope, international cooperation and collaboration is essential to check trafficking in persons.

Strengthening cooperation between border control agencies and the establishment of direct channels of communication between India and Myanmar can be an effective tool in countering trafficking in persons and promoting cross-border and regional cooperation.

Cabinet

[Source: PIB]

[Press Release dt. 27-11-2019]

Cabinet DecisionsLegislation Updates

The Union Cabinet has given approval for the MoU between India and Guinea in the field of Renewable Energy.

Objective:

          The objective of the MoU is:

  1. To establish the basis for a cooperative institutional relationship
  2. To encourage and promote bilateral technical cooperation in the field of renewable energy on the basis of mutual benefit, equality, and reciprocity between the Parties.
  3. Areas of cooperation include Solar Energy, Wind Energy, Bio-energy, and Waste to energy, Small Hydro Storage and Capacity Build.

The Memorandum of understanding will also help in strengthening bilateral cooperation between the two countries.

Cabinet

[Press Release dt. 06-11-2019]

Cabinet DecisionsLegislation Updates

The Union Cabinet has given ex-post facto approval to the Memorandum of Understanding (MoU) between India and Switzerland on Technical Cooperation in the field of Climate Change and Environment. The MoU was signed in Switzerland on 13-09-2019.

Major impact:

Environmental degradation falls on the socially and economically disadvantaged, more heavily than the better of sections of the society. Any effort at thwarting environmental degradation would lead to environmental equity in the sense of availability of sound environmental resources to all sections of the society.

Benefits:

The MoU will enable establishment and promotion of closer and long-term cooperation between the two countries in the field of environmental protection and management of natural resources on the basis of equity, reciprocity and mutual benefits, taking into account the applicable laws and legal provisions in each country. It will enhance public accountability by way of exchange of information and technology between the two countries. Further, It is expected to bring in the latest technologies and best practices suited for bringing about better environment protection, better conservation, better management of climate change and wildlife protection/conservation.

Salient features:

  1. Capacity-building on Climate Change and Sustainable Water management;
  2. Sustainable Forest Management;
  3. Sustainable development of mountainous regions;
  4. Environmentally sustainable and resilient urban development;
  5. Addressing issues of Air, land and water pollution;
  6. Focussing on Clean and Renewable Energy; and
  7. Climate change risk management.

[Source: PIB]

Press Release dt. 07-11-2019

Cabinet DecisionsLegislation Updates

Union Cabinet approved the signing of the Protocol amending the Convention between the Government of the Republic of India and the Government of the Federative Republic of Brazil for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income.

Implementation Strategy and Targets:

After Cabinet approval, necessary formalities for bringing the Protocol into force will be completed. Implementation would be watched and reported by the Ministry.

Major impact:

Through updation of the Double Taxation Avoidance Convention’s (DTAC’s) provisions to international standards, the Amending Protocol between India and the Federative Republic of Brazil will facilitate the elimination of double taxation. Clear allocation of taxing rights between the Contracting States through DTAC will provide tax certainty to investors & businesses of both countries. The Amending Protocol will augment the flow of investment through lowering of tax rates in source State on interest, royalties and fees for technical services. The Amending Protocol implements minimum standards and other recommendations of the G-20 OECD Base Erosion Profit Shifting (BEPS) Project. Inclusion of Preamble Text, a Principal Purpose Test, a general anti-abuse provision in the DTAC along with a Simplified Limitation of Benefits Clause as per BEPS Project will result in curbing of tax planning strategies which exploit gaps and mismatches in tax rules

Point-wise details:

a.  The existing DTAC between India and Brazil was signed on 26th April, 1988 and was amended through a Protocol signed on 15th October 2013 in respect of exchange of information. Through the present Protocol, the DTAC has been amended on various other aspects.

b.  The amended DTAC also implements the minimum standards as well as other recommendations of the G-20 OECD Base Erosion and Profit Shifting (BEPS) Project.

Background:

The existing Double Taxation Avoidance Convention (DTAC) between India and Brazil being very old was required to be amended to bring it in line with international developments and also to implement the recommendations contained in the G20 OECD Base Erosion and Profit Shifting Project (BEPS).

Ministry of Finance

[Press Release dt. 06-11-2019]

NewsTreaties/Conventions/International Agreements

India has signed the Agreement with Pakistan today on the modalities for operationalisation of the Kartarpur Sahib Corridor at Zero Point, International Boundary, Dera Baba Nanak. Representatives from the Ministry of External Affairs, Ministry of Defence, and Ministry of Home Affairs along with the representatives from the Government of Punjab have been present during the signing ceremony.

It is very well known that the Union Cabinet passed a resolution on 22 November 2018 to celebrate the historic occasion of 550th Birth Anniversary of Sri Guru Nanak Devji in a grand and befitting manner, throughout the country and across the globe.

In a landmark decision, the Union Cabinet also approved the building and development of the Kartarpur Sahib Corridor from Dera Baba Nanak to the International Boundary, to facilitate pilgrims from India to visit Gurdwara Darbar Sahib Kartarpur, round the year, in a smooth and easy manner.

With the signing of this Agreement, a formal framework has been laid down for operationalisation of the Kartarpur Sahib Corridor.

The highlights of the Agreement are: –

  • Indian pilgrims of all faiths and persons of Indian origin can use the corridor;
  • The travel will be Visa Free;
  • Pilgrims need to carry only a valid passport;
  • Persons of Indian Origin need to carry OCI card along with the passport of their country;
  • The Corridor is open from dawn to dusk. Pilgrims travelling in the morning will have to return on the same day;
  • The Corridor will be operational throughout the year, except on notified days, to be informed in advance;
  • Pilgrims will have a choice to visit as individuals or in groups, and also to travel on foot;
  • India will send the list of pilgrims to Pakistan 10 days ahead of travel date. Confirmation will be sent to pilgrims 4 days before the travel date;
  • The Pakistan side has assured India to make sufficient provision for ‘Langar’ and distribution of ‘Prasad’;

The main issue that has been a point of discussion is the insistence of Pakistan to levy US Dollars 20 as service charge per pilgrim per visit. India has consistently urged Pakistan to not levy any fee on the pilgrims. It was stressed time and again, including in the previous three Joint Secretary Level meetings and at the diplomatic level, that this is not in consonance with the religious and spiritual sentiments of Indian pilgrims. India has shared its deep disappointment with Pakistan for its refusal to waive the fee. However, in the interest of the pilgrims and timely operationalization of the Kartarpur Sahib Corridor before the 550th Prakash Purb, India has agreed to sign the Agreement today. While the Agreement has been signed, Government of India continues to urge this issue with the Government of Pakistan to reconsider its insistence on levying the fee. India remains ready to amend the Agreement accordingly.

India continues to pursue the issue of all-weather connectivity through the corridor. In this context, Government of India has built the bridge on the Indian side and a temporary service road as an interim arrangement. It is expected that Pakistan will fulfill the assurance that it would build the bridge on their side at the earliest.

Provisions made for facilitation of Pilgrims

All the required infrastructure viz., the highway and the Passenger Terminal Building are nearing completion for the timely inauguration of the Kartarpur Sahib Corridor. A robust security architecture has been put in place while facilitating smooth and easy passage of pilgrims.

For registration of pilgrims, the online portal (prakashpurb550.mha.gov.in) has gone live today. The pilgrims may have to necessarily register themselves online on this portal and exercise their choice to travel on any day. Pilgrims will be informed by SMS and email of the confirmation of registration 3 to 4 days in advance of the date of travel.  An Electronic Travel Authorization will also be generated. The pilgrims need to carry Electronic Travel Authorization, along with their passport, when they arrive at the Passenger Terminal Building.

Ministry of Home Affairs

[Press Release dt. 24-10-2019]

Case BriefsInternational Courts

International Court of Justice (ICJ), Hague, Netherlands: A 16-Member Bench comprising of President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna ,Cancado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Jillani; pronounced the long-awaited verdict of a four day hearing in the Kulbhushan Jadhav Case unanimously with 1 dissenting opinion of the ad hoc Judge Gillani.

The present high-profile case, involving great significance for the Member States, India and Pakistan both, was carried on with keeping in mind the following facts:

Individual named Kulbhushan Sudhir Jadhav has been in the custody of Pakistani authorities. The circumstances of his apprehension remain in dispute between the Parties. According to India, Jadhav was kidnapped from Iran, where he was residing and carrying out business activities after his retirement from the Indian Navy. He was subsequently transferred to Pakistan and detained for interrogation. Pakistan contends that Jadhav, whom it accuses of performing acts of espionage and terrorism on behalf of India, was arrested in Balochistan near the border with Iran after illegally entering Pakistani territory. Pakistan explains that, at the moment of his arrest, Jadhav was in possession of an Indian passport bearing the name “Hussein Mubarak Patel”. India denies these allegations.

India filed an application for the institution of the proceedings on 08-05-2017 against Pakistan on grounds of the alleged violation of the Vienna Convention on Consular Relations by Pakistan pertaining to Kulbhushan Jadhav’s detention and his trial. Jadhav was accused of performing acts of espionage and terrorism on behalf of India and further sentenced to death by a Military Court of Pakistan in 2017. Therefore, India contended that Pakistan breached Article 36 of Vienna Convention:

  • By not informing India, without delay, of the detention of Jadhav;
  • By not informing Jadhav of his rights under Article 36;
  • By denying consular officers of India access to Jadhav

On 18-05-2017, Court indicated the following provisional measures –

“Pakistan shall take all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order.”

Further, Public Hearings of the said case were held from 18-02-2019 to 21-02-2019, in which India was represented by Deepak Mittal and Harish Salve, while Anwar Mansoor Khan, Khawar Qureshi presented arguments on behalf of Pakistan.

Claims made by India are as follows:

  • Relief by way of immediate suspension of death sentence
  • Relief by way of restitution in integrum by declaring the sentence of the military court arrived at, in brazen defiance of Vienna Convention rights under Article 36
  • Restrain and annul the decision of the Military Court of Pakistan
  • If Pakistan fails to annul its decision, then ICJ to declare it illegal and violative of International Law.

The objections placed by Pakistan in regard to the admissibility of India’s application are based on the following:

  • Abuse of process
  • Abuse of rights
  • Unlawful conduct

Court’s Analysis of the facts and contentions placed

ICJ notes that, Pakistan placed contentions in regard to the applicability of certain provisions of the Vienna Convention.

  • Pakistan argued that Article 36 of Vienna Convention does not apply in “prima facie cases of espionage”.
  • Customary International Law governs cases of espionage in consular relations and allows States to make an exception to provisions on consular access contained in Article 36.
  • Pakistan maintains that it is the 2008 Agreement on Consular Access between India and Pakistan rather than Article 36 of the Vienna Convention, which regulates consular access in the present case.

To all the above-stated contentions, Court concluded that the Convention is applicable in the present case, regardless of the allegations that Mr Jadhav was engaged in espionage activities.

Court infers that Pakistan did not inform Jadhav of his rights under Article 36, paragraph 1 (b), of the Vienna Convention, and thus concludes that Pakistan breached its obligation under that provision. In the Court’s view, there is no basis under the Vienna Convention for a State to condition the fulfillment of its obligations under Article 36 on the other State’s compliance with other international law obligations.

Therefore, the Court unanimously decided:

  • Application of the Republic of India is admissible.

Further, by a majority of fifteen votes to one, it was decided:

  • By not informing Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, Pakistan breached the obligations incumbent upon it under that provision.
  • India was deprived of the right to render the assistance provided for by the Vienna Convention to the individual concerned; Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of Vienna Convention on Consular Relations.
  • Pakistan deprived India the right to communicate with and have access to Jadhav to visit him in detention and arrange legal representation.
  • Pakistan is under obligation to inform Jadhav without delay regarding his rights to provide India consular officers access to him in accordance with Article 36 of VCCR.
  • Effective review and reconsideration of the conviction and sentence of Jadhav.[India v. Pakistan, General List No. 168, decided on 17-07-2019]

Hot Off The PressNews

After a four-day public hearing in the case of Kulbhushan Jadhav, a Retired Indian Navy officer sentenced to death by a Pakistani military court on charges of espionage, the verdict of International Court of Justice would be pronounced soon on 17-07-2019.

“According to the Press Release by ICJ, The International Court of Justice (ICJ), the principal judicial organ of the United Nations, will deliver, on Wednesday 17 July 2019, its Judgment in the Jadhav case (India v. Pakistan).

A public sitting will take place at 3 p.m. at the Peace Palace in The Hague, during which Judge Abdulqawi Ahmed Yusuf, President of the Court, will read the Court’s decision.”

Earlier, before the four day-public hearing of the case, International Court of Justice at the Hague pronounced it’s verdict in favour of India. It said that the conditions required to indicate provisional measures are met, hence, it is appropriate to order that Pakistan should ensure that Kulbhushan Jadhav is not executed pending the final decision. The provisional order under Article 41(1) has a binding obligation.

India had, on 08-05-2017, initiated the proceedings before ICJ against the execution of the death sentence imposed upon an Indian National Kulbhushan Jadhav, alleging that Pakistan kidnapped Kulbhushan Jadhav from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan on 3 March 2016. On 09-05-2017, Judge Ronny Abraham, President of the ICJ  stayed the execution of Kulbhushan Jadhav under Article 74, paragraph 4, of the Rules of Court. Harish Salve and Khawar Qureshi represented India and Pakistan, respectively.

Further Reading:

NewsTreaties/Conventions/International Agreements

The Union Cabinet chaired by Prime Minister Narendra Modi has approved the MoU between India and Morocco for developing, promoting and strengthening mutual cooperation between the judiciaries of the two countries.

Impact

The approval will promote cooperation between India and Morocco in judicial and other legal areas and enable the exchange of knowledge in infrastructure and information technology.

[Press Release dt. 03-07-2019]

Ministry Of Law & Justice

Legislation UpdatesNotifications

The United States of America (USA) has w.e.f. 5 June 2019 withdrawn India’s GSP benefits. These are unilateral, non-reciprocal and non-discriminatory benefits extended by some developed countries to developing countries. India as part of our bilateral trade discussions, had offered resolution on significant US requests in an effort to find a mutually acceptable way forward.

[Source: PIB]

Ministry of Commerce & Industry

Legislation UpdatesNotifications

G.S.R.282(E) — In exercise of the powers conferred by sub-sections (1) and (2) of Section 3 of the Repatriation of Prisoners Act, 2003 (49 of 2003), the Central Government hereby directs that the provisions of the said Act shall apply to the Federal Republic of Brazil. The full text of the Agreement on Transfer of Sentenced Persons signed by the Republic of India and the Federal Republic of Brazil on 15.10.2013 is given below. The Agreement was ratified by the Republic of India on 1.1.2014 and by the Federal Republic of Brazil on 24.10.2018. The Instruments of Ratification were exchanged on 24.1.2019.

AGREEMENT BETWEEN THE REPUBLIC OF INDIA AND FEDERAL REPUBLIC OF BRAZIL ON THE TRANSFER OF SENTENCED PERSONS

The Republic of India and the Federative Republic of Brazil hereinafter referred to as the Contracting States;

Desiring to facilitate the social rehabilitation of sentenced persons into their own countries; and

Considering that this objective should be fulfilled by giving foreigners, who have been convicted and sentenced as a result of their commission of a criminal offence, the opportunity to serve their sentences within their own society;

Have agreed as follows:

ARTICLE 1

Definitions

For the purpose of this Agreement:
(a) “Judgment” means a decision or order of a court or tribunal imposing a sentence;
(b) “Receiving State” means a State to which the sentenced person may be, or has been, transferred in order to serve his sentence;
(c) “Sentence” means any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a determinate period of time, in the exercise of its criminal jurisdiction;
(d) “Sentenced person” means a person who is serving a definitive and enforceable sentence in the transferring State under a judgment passed by a criminal court in the Contracting States;
(e) “Transferring State” means the State in which the sentence was imposed on the person who may be, or has been transferred.

Note: Please follow the link for detailed notification – Notification

[Notification dt. 02-04-2019]

Ministry of Home Affairs