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:
To establish the basis for a cooperative institutional relationship
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.
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.
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:
Capacity-building on Climate Change and Sustainable Water management;
Sustainable Forest Management;
Sustainable development of mountainous regions;
Environmentally sustainable and resilient urban development;
Addressing issues of Air, land and water pollution;
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).
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.
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]
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.
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.
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.
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
The Union Cabinet, chaired by the Prime Minister Shri Narendra Modi, has given its ex-post facto approval on the Memorandum of Understanding (MoU) between India and Croatia in the field of tourism.
The MoU in the field of Tourism will help the two parties in creating an institutional mechanism for enhancing cooperation in the tourism sector.
The MoU has been signed on 26 March, 2019 during the visit of President of India to Croatia.
Sub-section (4) of Section 286 of the Income-tax Act, 1961 requires that a constituent entity of an international group, resident in India, other than a parent entity or an alternate reporting entity of an international group, resident in India, shall furnish the Country-by-Country (CbC) Report in respect of the said international group for a reporting accounting year within the period as may be prescribed, if the parent entity of the said international group is resident of a country or territory,—
where the parent entity is not obligated to file the CBC Report;
with which India does not have an agreement providing for exchange of the CbC Report; or
where there has been a systemic failure of the country or territory and the said failure has been intimated by the prescribed authority to such constituent
entity.
2. Vide Notification in GSR 1217 (E) dated 18th December, 2018 with effect from 18th December, 2018, amendments to the Income-tax Rules. 1962 (the “Rules”) have been carried out to provide that the period for furnishing of the CbC report (local filing) shall be twelve months from the end of the reporting accounting year.
3. Further, vide Circular No.9/2018, dated 26th December, 2018, CBDT as a one-time measure, in exercise of powers conferred under Section 119 of the Act, extended the period for furnishing of the CbC Report (local filing) in respect of reporting accounting years ending on or before 28 February, 2018 up to 31st March, 2019.
4. The absence of an agreement between India and USA till now entailed a possibility of local filing of CbC Reports in India. However, a Bilateral Competent Authority Arrangement, along with an underlying Inter-Governmental Agreement, for exchange of CbC Reports between India and the USA has now been finalized and will be signed on or before 31st March, 2019. This would enable both the countries to exchange CbC Reports filed by the ultimate parent entities of International Groups in
the respective jurisdictions, pertaining to the financial years commencing on or after 1st January, 2016. As a result, Indian constituent entities of international groups headquartered in USA, who have already filed CbC Reports in the USA, would not be required to do local filing of the CbC Reports of their international groups in India.
The Tenth NLU Antitrust Law Moot Court Competition 2019 has been inaugurated in the honorable presence of Dean Dr. I.P. Massey and the Registrar. The registrations and exchange of memorials between the teams is underway in the auditorium, while the Researchers have begun with the Researcher’s Test!
4.30 PM – Preliminary Round 1 Begins
The judges have been briefed and they are really excited to witness the competition this time. The first Preliminary Rounds are about to begin and we wish all the participants good luck!
6 PM – Preliminary Round 1 ends
The first set of preliminary rounds have ended. The participants are tired after passionately arguing their sides, yet are enthusiastic for the next set. The second set of preliminary rounds will start soon, which will be followed by the reverse prelims.
8 PM – Preliminary Round 2 ends
The two sets of reverse prelims will begin soon, followed by declaration of the teams advancing to the Octa-finals, to be held tomorrow.
9 PM – Reverse Prelims begin
The the reverse prelims have begun. This is to ensure each team has an equal chance to argue both sides, and thus maintain a balance in scores. The participants are tired, yet are positive as ever!
11.30 PM– Reverse prelims end, results announced
The reverse prelims have been concluded, and due to the brilliant organizers in the tabulation team, we were able to receive the results quickly. Following are the teams qualifying to the Octa-Finals (in no particular order) :
Institute of Law, Nirma University.
Symbiosis Law School, Noida.
National University of Advanced Legal Studies, Kochi.
Gujarat National Law University.
National Law University, Odisha.
ILS Law College, Pune.
Amity Law School, IP.
Rajiv Gandhi National University of Law.
Hidayatullah National Law University.
Symbiosis Law School, Pune.
Government Law College, Mumbai.
School of Law, Christ University.
Faculty of Law, Aligarh Muslim University.
SVKM’S NMIMS KIRIT P Mehta School of Law.
Vivekananda Institute of Professional Studies.
Chanakya National Law University.
Memorials have been exchanged according to the match-ups, and the days events have come to an end. We congratulate the Octa-Finalists!
Day 2 – Octa Finals, Panel Discussion and Quarter Finals
The second day of the Tenth NLU Antitrust Moot Court Competition is successfully underway!
9.30 AM – Octa Finals commence
The judges have been briefed and the Octa Finals have commenced in the respective courtrooms. The participants look fresh and well rested even though they might have been ripping apart their opponent’s memorials all through the night! Wishing them all the best!
Judges scrutinizing the arguments.
1 PM – 4th Antitrust Panel Discussion on Competition Law’s Interface with IBC commences
With the first set of Octa Final rounds over, preparations are in full swing for the reverse Octa Final Rounds. Meanwhile, participants attended the 4th Antitrust Panel Discussion, 2019. The topic for this year’s panel discussion pertains to Interface of Competition Law with the Indian Bankruptcy Code.Our esteemed panelists for this discussion are:
Ms. Anubhuti Mishra – An alumnus of King’s College, London and Hidayatullah National Law University, Raipur, she is currently working with the Competition Law team at P&A Law Offices, New Delhi. She has advised on several antitrust enforcement as well as merger review matters.
Mr. Shashank Sharma – Graduated from National Law School of India University in 2013. Thereafter, he went on to complete his European Master in Law and Economics in 2017. Since then he has been working with AZB & Partners, where his primary focus is Competition Law, with specific focus on Behavioural & Merger Control.
Mr. Toshit Shandilya – Graduated from National Law University, Delhi in 2013, he is currently an associate in the Competition Law team of Talwar Thakore & Associates. He has been involved in various critical enforcement and merger control cases before the CCI, as well as the COMPAT. He has been a law clerk with Justice V.S. Sirpurkar, former chairman, COMPAT where he assisted on a number of important cartel and Abuse of Dominance cases.
Our esteemed Panelists engaging with the participants.
The participants of the panel discussion posed certain interesting questions to our Panelists. The questions ranged from procedural to policy issues, arising from the requirement of taking CCI’s approval for insolvency resolution plans that include combinations. The participants and the Panelists engaged on concepts, such as, the failing firm defence, composite combination transactions, inter-connected transactions, and so on, to name a few. The Panelists also threw some light on their practical experience as Competition Lawyers while dealing with complicated transactions that fall within the regime of the IBC. The interactive session provided the participants an insight into the complex interface between the IBC and Competition Law.
5 PM – Octa’s concluded, results announced
The Octa Finals and the Reverse Octa Finals have been concluded. While the participants argued commendably, our Judges had a tough time reaching consensus. The following are the teams progressing towards the Quater Finals (in no particular order):
National Law University, Odisha.
ILS Law College, Pune.
Symbiosis Law School, Pune.
Institute of Law, Nirma University.
National University of Advanced Legal Studies, Kochi.
SVKM’S NMIMS Kirit P. Mehta School of Law.
Gujarat National Law University, Gandhinagar.
Symbiosis Law School, Noida.
We congratulate the qualifying teams. The exchange of memorials for the Quarter Finals shall be taking place soon at the Registration desk.
A glance into the Quarter Finals.
Participant engrossed in the opponent’s arguments.
The Quarter Finals of the Tenth NLU Antitrust Law Moot Court Competition have come to an end. Here are the teams that have qualified to the Semi Finals.
Symbiosis Law School, Pune.
Gujarat National Law University.
National Law University, Odisha.
National University of Advanced Legal Studies, Kochi.
A hearty congratulations to all the Semi Finalists!
8 PM – Semi Finals Underway
The Semi Finals are currently underway. The teams are engaged in fierce argumentation before an eminent panel of judges in both court rooms. Here, take a glimpse at the rounds.
Judge Anand Vikas Mishra testing the participant’s understanding of the law.
Judges Anand Kumar Singh (Assistant Professor, National Law University Jodhpur, specialising in Competition Law), Rahul Satyan (Senior Partner, Competition and Antitrust team at AZB & Partners) and Toshit Chandilya (Associate, Competition Law team at Talwar Thakore & Associates) in Court Room 2.
Participants observing the arguments of their opponent team.
10.15 PM – Semi Finals concluded
After establishing their ‘dominant position’ in this relevant mooting market, the following two teams will battle it out in the Finale of the Tenth NLU Antitrust Law Moot Court Competition 2019:
Symbiosis Law School, Pune.
Gujarat National Law University.
The Memorials will be exchanged between the finalists soon. May the best market player win the battle.
Day 3 – Finals and Valedictory Ceremony
9.30 AM–The audience and judges are seated in the auditorium and the Final rounds of the Tenth NLU Antitrust Moot Court Competition will begin shortly.
9.40 AM – The first speaker from the Applicant’s side, begins his speech. He is calm and is responding well to the judges, who waste no opportunity in grilling him on the law and facts. The bench is fairly active, and all the three judges are participating equally.
Dr. K.D.Singh (Joint Director (Law), Competition Commission of India) and Mr. Rahul Singh (Partner, Khaitan & Co.), having a look at the proposition.
Mr. Manas Kumar Chaudhuri (Partner, Khaitan & Co.) indulgent in the oral rounds during the Finals.
10.20 AM –Speaker 2 from the Applicant’s side has now taken over. She begins her submission by trying to prove that DOPE is not an enterprise, as per the statutory definition under Sections 2(h) read with Section 3(3) of the Competition Act, 2002. She relies on the lack of an economic function, to prove so. However, the judges seem unconvinced, and asks the counsel to clarify the origin of this requirement. Mr. Rahul Singh (Partner, Khaitan & Co.) questions the counsel on the intricacies involved while relying on Section 3(3) along with Section 2(h). The counsel further cites the Coordination Committee case, to prove her point.
Respondent’s gearing up for their turn.
10.35 AM –The judges inquire about the ratio of the LPG Gas Cylinder case, and its relevance to the current argument. With only 2 mins left on the clock, the counsel moves to her second issue, regarding cartelisation. She seeks an extension of time, which is granted. Towards the end of her submissions, one of the judges pose a question regarding the lack of any arguments on mitigation of penalty. The counsel confidently replies that her party is not in violation of any competition or antitrust rules, and thereby need not argue on penalty. This creates a good impression upon the judges.
10.46 AM – The first speaker from the Respondent side, takes the podium. He appears immensely composed, and requests 30 seconds to arrange his documents on the podium. His speech is structured and brief, and the judges seem to be nodding in appreciation. He begins his first submission, on the maintainability of Jeevan Pharma’s admission. Mr. Rahul Singh and Dr K.D Singh (Joint Director (Law), Competition Commission of India) question the counsel on the distinction between the ability of the bench to hear the petition, and their power to grant compensation. The Counsel calmly tries to clarify his position, with reliance on the facts and clarifications, citing the relevant paragraphs, perfectly.
The Appellants discussing their strategy during the Finals.
11.00 AM – The counsel then moves to his second submission, regarding Jeevan Pharma’s abuse of its dominant position, and lays down the three tests required to show the same. The judges don’t seem satisfied with increased reliance on foreign cases, in light of extensive Indian jurisprudence in the area, but the counsel responds adequately. He then seeks an extension, which is happily granted by the judges. As the counsel ends his submissions and thanks the bench, the panel of judges apologise for their repeated probe into every submission of his. This lightens the atmosphere. The judges appeared quite pleased with his set of submissions.
11.24 AM – Speaker 2 now arrives at the podium, to continue her fellow counsel’s submissions. She begins her submission by laying out a roadmap, upon the judges seeking a clarification. Her issues pertain to the ability of the DG and CCR to proceed against DOPE, and DOPE’s violation of Section 3(3). The rain of questions continue, as was the case for the previous speakers. The judges question the line of argument, that the cryptic order of DG can be used against anyone. The counsel tries to clarify her position and does not lose hope.
11.35 AM –The counsel moves to her second submission and focuses on the agreement between the manufacturers, as well as between the manufacturers and the DOPE. She informally quotes Lord Denning and then the statutory definition. There is a good level of engagement between the counsel and the judges. After this speech, the judges decide against rebuttals and surrebuttals, However, they give into the finalists’ request. Speaker 1 from the respondent gives a brilliant rebuttal which leaves the audience as well as the judges in awe.
11.40 AM – The rounds have been concluded, and the finalists wait for the results.
12.15 – Valedictory ceremony commenced
Vice Chancellor, Ms. Poonam Pradhan Saxena and the Dean, Dr. I.P. Massey, with other esteemed faculty members and the judges have taken their seats in the auditorium. Senior Member of the Moot Court Committee opened the ceremony with a heart warming speech and addressed the participants waiting eagerly for the results.
12.30 –Vice Chancellor felicitates the gathering
The Vice Chancellor thanked Khaitan & Co. for their valuable partnership in organising this year’s Competition. She further stressed upon the importance of Competition Law as an emerging field. She also encouraged the participants to take part in more moot court competitions, as it helps to further one’s advocacy skills and analytical abilities.
12.35 – Dr. K.D. Singh addressed the crowd and informed the audience about CCI’s endeavours and how CCI has been happy to host the moot in association with NLU Jodhpur, for the past 10 years, and expressed his desire to continue the same for the coming years.
12.37 – Vice Chancellor presents the token of appreciation to Dr. K.D. Singh
12.38 –Mr. Manas Kumar Chaudhuri (Partner, Khaitan & Co) thanked Ms. Poonam Saxena and shared his experience as a corporate lawyer and left a very interesting question for the participants sitting in the audience, whether they are administering “justice” by being the extended arm
12.40 –Declaration of results
Mr. Rohan C. Thomas, Faculty Advisor of the Moot Court Committee, announces the results :
Second Best Student Advocate– Anshika Jain (Gujarat National Law University)
Best Student Advocate – Juhi Hirani (Institute of Law, Nirma University) and Darshan H. Patankar (Gujarat National Law University)
Best Researcher – Eesha H. Sheth (SVKM’S NMIMS Kirit P Mehta School of Law)
Best Memorial – Faculty of Law, Jamia Millia Islamia.
Best Student Advocate for the Finals – Darshan H. Patankar (GNLU)
RUNNERS UP TEAM – Symbiosis Law School, Pune.
WINNING TEAM – Gujarat National Law University.
Winning Team of the Tenth NLU Antitrust Law Moot Court Competition – Gujarat National Law University
Runners Up Team of Tenth NLU Antitrust Law Moot Court Competition – Symbiosis Law School, Pune
12.45 –Closing Speech by the Co-Convener of the Moot Court Committee
Ms. Mansi Srivastava (Co-Convener, Moot Court Committee) shared her experience of being part of the organising committee for the past five years and how it feels surreal to be a part of it for one last time. She thanked the administration, the support staff, the volunteers and all the other Moot Court Committee Members for their support and contribution. She specially thanked Ms. Abhilasha Gupta and Ms. Subarna Saha (Advisors, Moot Court Committee) and Mr. Rahul Mantri (Co-Convener, Moot Court Committee) for being her pillars of strength throughout the competition and providing all the answers when she herself couldn’t find them. Lastly, she thanked Khaitan & Co. for their partnership and the Knowledge partner, SCC Online and Eastern Book Company (EBC) for providing the students with access to SCC Online that helped them in the preparation for their rounds.
12.48 – Certificate of participation given out to the participants.
The Tenth NLU Antitrust Law Moot Court Competition has thus been concluded.
The Union Cabinet, chaired by the Prime Minister Narendra Modi has approved the agreement between Republic of India and the Republic of Belarus on Mutual Legal Assistance (MLAT) in Civil and Commercial Matters.
The Agreement after having come into force will promote Mutual Legal Assistance between the Contracting Parties in Civil and Commercial Matters.
The proposal aims to benefit the citizens of the respective Parties seeking Legal Assistance in Civil and Commercial Matters in the requested Party irrespective of any gender, class or income bias.
Recently, Ministry of External Affairs (MEA) had in its press release stated that “Pakistan demarched on the act of aggression against India”.
“India also strongly objected to Pakistan’s vulgar display of an injured personnel of the Indian Air Force in violation of all norms of International Humanitarian Law and the Geneva Convention. It was made clear that Pakistan would be well advised to ensure that no harm comes to the Indian defence personnel in its custody. India also expects his immediate and safe return.”
This article aims to breaking down the understanding of the term “Prisoner of War” and its relation to the “Third Geneva Convention”.
International Humanitarian Law (IHL) also protects other persons deprived of liberty as a result of armed conflict.
Third Geneva Convention provides a wide range of protection for prisoners of war. Rules protecting prisoners of war (PoWs) are specific and were first detailed in the 1929 Geneva Convention. They were refined in the third 1949 Geneva Convention, following the lessons of World War II, as well as in Additional Protocol I of 1977.
POWs cannot be prosecuted for taking a direct part in hostilities. Their detention is not a form of punishment, but only aims to prevent further participation in the conflict. They must be released and repatriated without delay after the end of hostilities. The detaining power may prosecute them for possible war crimes, but not for acts of violence that are lawful under IHL.
POWs must be treated humanely in all circumstances. They are protected against any act of violence, as well as against intimidation, insults, and public curiosity. IHL also defines minimum conditions of detention covering such issues as accommodation, food, clothing, hygiene and medical care.
The discussions on the Geneva Convention in respect of how a PoW is to be treated speeded through the social media platforms like plague, which mainly includes:
A total number of 143 Articles whereas the 1929 Convention had only 97.
Article 4 | Prisoners of war
Persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfils the following conditions:
(a) that of being commanded by a person responsible for his subordinates ;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(4) Person who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
B. The following shall likewise be treated as prisoners of war under the present Convention:
(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they jail to comply with a summons made to them with a view to internment.
(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the junctions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.
C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.
Article 118 of the 1949 third Geneva Convention | Release and repatriation
“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities” and “unjustifiable delay in the repatriation of prisoners of war or civilians” is a grave breach of the Protocol.
Once PoW status is awarded to a combatant, he may be interned without any particular procedure or reason. The purpose of this internment is not to punish them but only to hinder their direct participation in hostilities.
Article 13 | Humane treatment of prisoners
Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention.
Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited.
Article 14 | Respect for the person of prisoners
‘Respect for the physical person of the prisoner ‘
‘Respect for the moral person of the prisoner ‘
‘The prisoner’s honour ‘
Therefore, the above explainer of the Geneva Convention in respect of the relevant Articles under the present circumstance of India’s IAF Pilot’s release in a clear and detailed manner puts the picture in place rightly, that Pakistan’s move of releasing our Wing Commander was in consonance to the Third Geneva Convention, and as stated by Pakistan’s PM Imran Khan in the parliament that the “release” was a “peace gesture”, India would want to speculate more on that.
The Government of Republic of India and the Government of His Majesty the Sultan and Yang Di-Pertuan of Brunei Darussalam signed an Agreement for the Exchange of Information and Assistance in Collection with respect to Taxes (TIEA) here today in New Delhi. The Agreement was signed by Mr. Pramod Chandra Mody, Chairman, Central Board of Direct Taxes (CBDT) on behalf of India and Dato Paduka Haji Sidek Ali, High Commissioner of Brunei Darussalam to India on behalf of Brunei Darussalam.
The Agreement enables the exchange of information, including banking and ownership information between the two countries for tax purposes. It is based on international standards of tax transparency and exchange of information and enables sharing of information on request as well as an automatic basis. The Agreement also provides for mutual assistance in collection of tax revenue claims between both countries.
The Agreement will enhance mutual co-operation between India and Brunei Darussalam by providing an effective framework for the exchange of information in tax matters which will help curb tax evasion and tax avoidance.
As the old lawyers’ saying goes, “When you are strong on the law, you hammer the law, if you are strong on the facts, you hammer the facts, and when you have neither on your side, you hammer the table”. Bereft of a case, Pakistan has hammered the proverbial table.
“Indian nationals are not the kind whose nationality needs to be denied, unlike Pakistan.”
Pakistan invites the Court to treat as true the confession made by Mr Jadhav to the military and in that the very first assertion is that he is an Indian national and an officer of the RAW. If Pakistan so closely, dearly and fully believes his confession, why do they doubt his nationality?”
“India’s criticism of the system of military courts trying civilians generally, and of the manner in which the military courts have functioned, has been documented by the International Commission of Jurists, the Human Rights Committee and even in a resolution of the European Parliament.”
“Experts find that military courts are generally confined to service personnel. It is known that there are some military courts — Pakistan is one, and unfortunately not the sole example — in which military courts have jurisdiction to try civilians.”
“One of the reasons why India seeks Mr. Jadhav’s release, apart from showing propaganda, is that he has become a pawn and a convenient tool for Pakistan to try and unsuccessfully divert global attention from its own conduct.”
When we talk of review, I would draw the attention of the Court in stark contrast, in the Kasab case where the Supreme Court of India, dealing with an application filed by a Pakistani terrorist, apprehended red-handed and caught by a brave police officer who absorbed on himself a magazine of bullets on his person, the Supreme Court held that “We may also state here that since it is a case of death sentence, we intend to examine the materials on record first hand, in accordance with the time-honoured practice of this Court, and come to our own conclusions on all issues of facts and law, unbound by the findings of the trial court and the High Court.” This is called “review”.
There has been an egregious violation of the Vienna Convention.
LIVE UPDATES:
Khawar Qureshi starts presenting the final round of oral arguments.
Characters from wonderland have no place in this Court.
I challenge India to identify any discrepancy, states Qureshi.
India persists to distract and deflect attention to answer critical questions.
India’s double standards parades itself.
Why is it, again and again, necessary to involve in fiction.
Is the approach of India as it suggests really to “hammer the facts”?
India’s conduct cannot go unchecked. This is the court of the international community, not fantasy not fiction.
India appears to have closed its eyes as well as mind, given that clear and express reference to the judgment of Peshawar High Court was made.
Pakistan understands chronology.
It’s simply wrong to disparage the military courts of Pakistan.
Pakistan was expecting India to show some respect to the Court, if not Pakistan, and if not the independent experts. That has not happened.
India’s claim for relief remains as far fetched now as it was then.
India’s conduct is in a manner to disregard the truth.
India’s claim for relief must be dismissed, Qureshi ends his arguments.
Pakistan has a very robust system for review or reconsideration, says the agent of Pakistan.
Mention of Afzal Guru case along with Pulwama incident and Samjhauta express in concluding remarks of Pakistan’s Agent.
Agent accuses India of committing human rights violations by using pellet guns in Kashmir.
Consular access was denied for good reasons, says agent of Pakistan.
End of week-long oral arguments.
Court retires for deliberation. Agents will be informed when the judgment would be delivered.
The Union Cabinet chaired by Prime Minister Narendra Modi has given ex-post facto approval to the MoU between India and Vietnam for Cooperation in the field of Communications.
Benefits:
The MoU will contribute in strengthening bilateral cooperation and mutual understanding in the field of communications.
In the Kulbhushan Jadhav Case, ICJ will begin the hearing for the second round of oral arguments today, i.e. 20-02-2019. India will be placing its arguments before the Court today and tomorrow Pakistan will.
“India’s Application should be declared inadmissible by reason of India’s conduct in this context manifesting abuse of rights, lack of good faith, illegality, lack of clean hand and misrepresentations.”
“India’s claim for “at least”, “acquittal, release or return”/annulment of the conviction is at best misconceived, at worst made in bad faith in the light of the Court’s previous decisions consistently rejecting such a claim.”
“India has not made any other relief, thus its application should be dismissed.”
Stay tuned for the Live Updates.
Image Credits: Indian Express
LIVE UPDATES: India v. Pakistan [India to begins with the second round of oral arguments]
“Government of India requests this court to adjudge and declare that Pakistan acted in egregious breach of Article 36 of Vienna Convention”, Stated Deepak Mittal (Govt. of India’s Agent)
Harish Salve starts with oral arguments.
As old lawyer saying goes ‘When you are strong on the law you hammer the law, when you are strong on facts you hammer the facts and when you are strong on neither you hammer the table’.Berefet of a case, Pakistan has hammered the proverbial table.
Pakistan has mischaracterized India’s reading of the report on Military Courts as an attempt to mislead the Court.
Pakistan’s comments deriding Lahore High Court Bar Association yesterday are regrettable.
Harish Salve on Pakistan Counsel’s arguments: A criticism of a sovereign state of the case made out of the other state must be in language consistent with the dignity of other states. Humpty Dumpty has no place in this Court.
India never suggested estoppel. At least we keep reminding ourselves that we are in an International Court, not Commercial Court.
Pakistan did not question Jadhav’s nationality when 13 reminders were sent from India.
“Indian nationals are not the kind whose nationality needs to be denied.”
Biodata mentions that Jadhav was a former Indian Navy officer. This would be proof of his Indian nationality. Indian nationals are not the kind whose nationality needs to be denied.
Salve mentions the Mumbai Attack in 2008.
“If Jadhav had been involved in subversive activities, irrespective of whether or not he had an Indian passport, he would have been tried for espionage.”
“Pakistan has nothing beyond a confession and Passport.” [Pakistan has nothing beyond the extracted confession on which Mr. Jadhav has been convicted of participation in the subversive activities. Possessing a passport does not make you party to offences. Your role in those offences is what gets you a conviction. Not having a passport which would enable you to sneak into a country, as you mean there was such a passport.
India has repeatedly asked for a copy of the judgment convicting Jadhav and charges against.
“Pakistan claims to have clinching evidence on the basis of articles in the Indian press.”
Supreme Court of Pakistan has suppressed operation of Peshawar High Court cited by Pakistan. On one hand, Pakistan is challenging that judgment in Supreme Court, on the other, it is citing it in ICJ, Salve.
Kasab’s case cited by Salve in regard to “review.” When we talk of review, I’d like to draw your attention in stark contrast in the Kasab case. where the Supreme Court in India held that since it is a case of death sentence we may examine the materials on record first hand. This is called a review.
Pulwama Terror Attack mentioned by Harish Salve in line of other terror attacks by Pakistan. [Kulbhushan Jadhav has become a pawn in Pakistan tool to divert international scrutiny from itself, Salve says. The Indian counsel then refers to the terror attack in Pulwama on February 14 that killed at least 40 CRPF personnel. [United Sates has even called upon Pakistan “to end immediately the support and safe haven provided to all terrorist groups operating on its soil, whose only goal is to sow chaos, violence and terror in the region.]
There was a time when Pakistan was respected but not anymore.
Jadhav’s trial was completed in 4-6 months. What happened to the 150 people killed in the Mumbai terror attacks?
“One of the reasons why India seeks Mr. Jadhav’s release, apart from showing propaganda, is that he has become a pawn and a convenient tool for Pakistan to try and unsuccessfully divert global attention from its own conduct.”
“The time has come for this Court to make Article 36 a potent weapon for the protection of human rights.”
Salve ends his arguments.
India’s agent Deepak Mittal placed the relief being sought by India before ICJ.
President Abdulqawi Ahmed Yusuf speaking on appointment for ad-hoc Judge for Pakistan.
ICJ President Abdulqawi Ahmed Yusuf then refers to Pakistan’s request to replace ad-hoc Pakistani judge Tassaduq Hussain Jillani, who had suffered a cardiac arrest on the first day of hearings. “Judge ad-hoc Gilani was given case files and participated in all court deliberations before these hearings,” he says. “He will receive all transcripts of oral proceedings. He will continue to participate.”
Sitting Adjourned.
Pakistan will present its final round of arguments tomorrow, i.e. 21-02-2019.
In yesterday’s hearing, India presented its arguments before the International Court of Justice (ICJ). The public hearings started from Monday 18 and will be continued till 21-02-2019.
Schedule for the hearings
First round of oral arguments-
Monday 18 February 10 a.m.-1 p.m. : India
Tuesday 19 February 10 a.m.-1 p.m.: Pakistan
Second round of oral arguments-
Wednesday 20 February 3 p.m.-4.30 p.m.: India
Thursday 21 February 4.30 p.m.-6 p.m.: Pakistan
Kulbhushan Jadhav case used as propaganda by Pakistan.
Salve emphasizes: Review and reconsideration of the case would be inadequate. The relief should be in the form of a direction to set Jadhav free.
India: It has established that not allowing consular access is a gross violation of Article 36 of the Vienna Convention by Pakistan.
In the present case, relief of review & re-consideration would be highly inadequate, considering facts & circumstances.
India seeks annulment of Jadhav’s conviction and a direction that he be released.
Image Courtesy: ICJ
LIVE UPDATES [India v. Pakistan]: Pakistan’s oral arguments begins:
Oral arguments by Pakistan’s Attorney General Anwar Mansoor Khan.
Since 1947, India has continuously tried destroying Pakistan.
“On humanitarian grounds, Pakistan allowed Jadhav’s family to visit him. I challenge India to quote a similar example.”
Mr Khawar Qureshi representing Pakistan starts with his oral arguments.
Developments in customary international law not consistent with India’s position on Article 36 of Vienna Convention on Consular Relations.
Blatant misrepresentations in the pleadings by India.
Qureshi in an electronic presentation places the issues it will present its arguments.
He states that “Why was Jadhav in possession of an authentic Indian passport with a Muslim cover name.”
What evidence is there that Jadhav retired from the Armed Forces?
ICJ President interrupts in between and asks Mr Qureshi to kindly slow down.
India’s conduct is far from irrelevant.
India failed to provide any explanation as to how it is that Commander Jadhav was able to travel frequently to and from India using an authentic Indian passport bearing a false identity in a Muslim name.
Evidence of how Jadhav was an Indian National?
India’s hands are sullied.
Passport was authenticated by expert David Westgate. Used at least on 17 occasions by Jadhav.
“We gave every single opportunity to India to correct/clarify/apologize, but it arrogantly dismissed.”
ICJ President again interrupts and asks Qureshi to slow down as the judges are not able to follow.
Qureshi on claims that Jadhav was not well when his family visited him stated in regard to Deputy High Commissioner J.P. Singh’s letter that: “I wish him well for his future as a fantasy fiction writer.”
Court adjourned for a 15-minute break.
Mr Qureshi starts with his arguments after the break.
At no stage can India say that Pakistan engaged in any clear and unequivocal representation made directly to India, to the effect that India waived the requirement for India to establish the Indian nationality of Commander Jadhav.
At no point, India has established (even now) that commander Jadhav is an Indian National.
No general practice accepted as law (opinio juris) by States to provide consular access in cases of espionage.
India has used flowery and topsy turvy language in its pleadings.
Did India demand any negotiation or mediation? NO
What does India have to say for that passport?
Why didn’t India raise a dispute back in 2016? Why did it come directly to the ICJ for provisional measures?
India stated that Pre-Mediated murder was supposed to take place.
India’s MEA Official stated that India and Pakistan have a bilateral agreement (vis consular access).
India’s claim for “at least” acquittal, release,and return is outlandish.
India shamelessly misrepresented the conclusion of the Joint Report of the distinguished Military Law Experts and extremely late in the day (shamelessly and without apology) sought to deflect criticism by saying a “typo” was involved in one respect.
India simply fails to answer questions.
Reference to Narendra Modi’s purported claim that rapists will be hanged within days quoted by Qureshi.
India invokes the decisions of the IACHR in a completely irrelevant and misleading manner.
“Why does India wants Pakistan to be treated differently?”
In any event, effective review and reconsideration has always been available to Commander Jadhav and his family.
India’s Application should be declared inadmissible by reason of India’s conduct in this context manifesting abuse of rights, lack of good faith, illegality, lack of clean hand and misrepresentations.
Conduct of India as aforesaid militates against the grant of any relief in any event.
VCCR is not engaged as India has not established that Commander Jadhav is an Indian National, nor was consular access refused prior to the commencement of these proceedings.
Customary International law provided for an exception to consular access in the case of an individual reasonably suspected of espionage.
India’s claim for “at least”, “acquittal, release or return”/annulment of the conviction is at best misconceived, at worst made in bad faith in the light of the Court’s previous decisions consistently rejecting such a claim.
India has not made any other relief, thus its application should be dismissed.
Sitting is now adjourned for the day.
Parties will now respond to the oral arguments for the next two days of the hearing.
As reported by PTI, 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 would begin today.
ICJ has set a timetable for the public hearing in the high-profile case from 18-02-2019 to 21-02-2019 at the Peace Palace in The Hague, the Netherlands. India will argue first on February 18, Pakistan will get its chance to make submissions on February 19. Then India will reply on February 20 while Islamabad will make its closing submissions on February 21.
It is expected that the ICJ’s decision may be delivered by the summer of 2019.
Live Updates: [First Day of Hearing] [India v. Pakistan]
Harish Salve is representing India and Kulbhushan Jadhav.
Kulbhushan Jadhav in respect to the facts was not made aware of his consular access.
Harish Salve: there are only two broad issues in the Kulbhushan Jadhav case. The first issue relates to the construction of Article 36 of the Vienna Convention. The second issue relates to relief.
It is an egregious violation of the Vienna Convention.
Jadhav’s purported confession clearly appears to be coaxed. India reminded Pakistan that it’s Pakistan government which hasn’t ratified SAARC convention on legal assistance in criminal matters.
Salve: ICJ has already upheld the importance of consular access under Article 36.
Article 36 facet of the due process.
Article 36 of the Vienna Convention cannot be modified by Bilateral treaties, could only supplement it.
Article 36 becomes a vital cog in the wheel of justice.
Pakistan should’ve provided a substantial explanation for why it needed 3 months for providing consular access, upon which it could’ve claimed that it has complied with the treaty obligation. Even on the erroneous premise that para 4 applies, Pakistan hasn’t complied treaty obligations.
Article 73(2) of the Vienna Convention will apply in the present case. Article 30 of the said convention does not override Article 73(2).
Break of 10 minutes.
The hearing resumes after the break.
Salve: Article 36 has been recognized as a rubric for human rights.
Trial by military court fails to satisfy even minimum standards of due process and should be declared “unlawful”.
Salve states that: “Disrespectful allegations against India”. Cases cited by Pakistan have no relevance in the present case.
Despite repeated attempts by India to sign a treaty for mutual legal assistance, Pakistan has refused. The reason is that there are several pending cases that involve terrorism.
Pakistan has always been offered consular access even when its citizens have been caught red-handed in acts of terrorism.
“Proceedings in Pakistani military courts fall far short of international standards. In the 2 years military courts have been allowed to convict civilians, 161 civilians have been given death sentence in an opaque manner.” 90% of convictions are based on confessions and the reasons are not made public.
Military proceedings are kept totally secretive, due to which detainees are bound to torture.
I would invite this court to keep in mind the relief to be granted in the backdrop of the fact that his trial has been conducted by a military court, states Salve.
“Pakistan has knowingly, willfully and brazenly violated Article 36 of the Vienna Conventions in respect of Kulbhushan Jadhav Case. Therefore, consequences may follow.”
Pakistan’s conduct doesn’t confirms that Jadhav would receive justice in Pakistan.
De-humanizing behaviour towards Jadhav’s family.
A resolution was passed by Lahore Bar Association threatening anyone who would dare appear for Jadhav in Pakistan courts. Bar Association also criticised ICJ’s grant of provisional measures
Pakistan has acted illegally, Salve.
Pakistan used Jadhav to build a narrative against India.
Kulbhushan Jadhav case used as propaganda by Pakistan.
Salve emphasizes: Review and reconsideration of the case would be inadequate. The relief should be in the form of a direction to set Jadhav free.
India: It has established that not allowing consular access is gross violation of Article 36 of the Vienna Convention by Pakistan.
In the present case, relief of review & re-consideration would be highly inadequate, considering facts & circumstances.
India seeks annulment of Jadhav’s conviction and a direction that he be released.
Pakistan’s round of arguments to begin tomorrow. [19-02-2019]
