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:

Hot Off The PressNews

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

Snippets from Yesterday’s Hearing:

  • 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.

Appointments & TransfersNews

According to PTI, India’s nominee to the International Court of Justice (ICJ) Justice Dalveer Bhandari was re-elected to the Hague based world court after United Kingdom withdrew its candidate Christopher Greenwood from the election. Justice Bhandari received 183-193 votes in the General Assembly and secured all the 15 votes in the Security Council.

The International Court of Justice, which has its seat in The Hague, is the principal judicial organ of the United Nations. Members of the ICJ are elected for nine-year terms, and one-third of the membership is renewed every three years. They are elected by the UN General Assembly and the Security Council, which vote at the same time but independently of each other. In order to be elected to ICJ, a candidate must obtain simple majority in the both the organs of the UN. That is to say, a successful candidate must get 97 votes in the General Assembly and 8 votes in the Security Council.

Source: PTI

Case BriefsHot Off The PressInternational CourtsNews

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 binding obligation.

On the Jurisdiction of ICJ, the Court said that any reservation made in Bilateral Agreements cannot limit this Court’s jurisdiction under Vienna Convention. The provisions of Bilateral Agreement on Consular Access, 2008 do not expressly limit this Court’s jurisdiction. India has maintained at various times that Kulbhushan Jadhav should be given consular access, however, Pakistan maintained that it will be granted only if India provides assistance. It establishes that the Court has jurisdiction as the acts alleged by India are capable of falling under Article 36(1) of Vienna Convention. The alleged failure by Pakistan to allow communication and access to Kulbhushan Jadhav is enough to fall under provisions of Vienna Convention. Also, Vienna Convention does not exclude the persons accused of acts of espionage. Hence, the Court has prima facie jurisdiction to entertain the plea.

The Court said that the rights invoked by India under Article 36(1) of Vienna Convention are plausible. A link exists between rights claimed by India and the provisional measures being sought. The Court observed that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized inArticle 36(1) of the Vienna Convention, and that India has alleged violations of this provision.

On Irreparable prejudice and urgency of the matter, ICJ said that as far as that is concerned the mere fact that that Kulbhushan Jadhav might be executed is sufficient to indicate the urgency. Pakistan has indicated that any execution of Kulbhushan Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case It is not clear as to when he might be executed. Pakistan has given no assurance that he will not be executed before the Court renders it’s final decision.

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 hearing in the matter took place on 15.05.2017. Read the submissions by India and Pakistan, here.

Click here to read the order of the Court.

Hot Off The PressNews

The International Court of Justice will deliver its Order on the request for the indication of provisional measures made by India in the Jadhav Case (India v. Pakistan), tomorrow. A public sitting will take place at 03:00 PM at the Peace Palace in The Hague, during which Judge Ronny Abraham, President of the Court, will read the Court’s Decision.

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 hearing in the matter took place on 15.05.2017. Read the submissions by India and Pakistan, here.

Hot Off The PressNews

International Court of Justice at the Hague begins hearing the submissions of India in the matter relating to Kulbhushan Jadhav’s execution order by Pakistan. 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 are representing India and Pakistan, respectively.

India’s submissions:

  • Dr. Deepak Mittal, appearing as the agent of India: The fact that the hearing in Kulbhushan Jadhav matter is taken up within 7 days is testamentary of urgency of the matter. Pakistan has denied the right to proper legal representation to Kubhushan Jadhav.
  • V.D. Sharma, appearing as co-agent of India: Pakistan failed to comply with provisions under Vienna Convention. It denied consular access to India.  Bilateral agreement cannot supersede Vienna Convention and Pakistan can’t invoke it before ICJ.
  • Harish Salve begins his submissions
  • Consular access denial by Pakistan:  India has made innumerable request since March, 2017 for consular access but Pakistan has refused to communicate to the consular officer. Pakistan asserted in press report that Kulbhushan Jadhav was not entitled to consular access.
  • Pakistan’s communication dated 12.05.2017: Communication dated 12.05.2017 by Pakistan fails to provide assurance that the death sentence will not be executed. Pakistan’s communication that remedies are available to Kulbhushan Jadhav are to be viewed in the light of the facts of the case. Pakistan communicated that the whole nation is united against the threat to Pakistan’s security and that Kulbhushan Jadhav was tried in fully transparent manner. However, the communication lacks credibility as no consular access provided. Pakistan has not provided any explanation for the same. India has not been given copy of charges or verdict. Hence, India seeks annulment of the deaths sentence.
  • Jurisdiction of ICJ: In case of several titles of jurisdiction, parties can rely on any title; India relies on jurisdiction of ICJ. A subsequent declaration on the title of jurisdiction does not limit the jurisdiction of an old declaration/treaty. Arts. 36 (1) and 37 of the Statute it becomes irrelevant to consider other possible Jurisdictions. Taking about the provisional orders under Art. 41(1) of the Rules of ICJ as sought by India, he said that measures under Art. 41(1) preserve the rights of the parties in case of urgency and it can be granted if the concern of the party are plausible. Considering the state of affairs, urgent provisional measure needed. India has a strong prima facie as to the jurisdiction of ICJ for provisional measure.
  • Bilateral Agreement on consular access: The agreement does not need to relied upon by India. India’s claim is based on Vienna convention only.
  • Vienna Convention: After one year of India’s attempt to seek consular access, Pakistan sent a letter stating that consular access will be provided only if India provides assistance to Pakistan. However, no exception as to grant of consular access is mentioned in Vienna Convention. The letter from Pakistan seeking assistance establish that Kulbhushan Jadhav was forced to confess and was ill-treated. on 10.04.2017, after awarding death sentence to Kulbhushan Jadhav, Pakistan again said that Consular access will be considered in the light of India’s assitance. It shows the blatant breach of Vienna Convention. Vienna convention embodies a code of conduct that gives right to trial. When the rights of an individual are violated, consequences must follow. The graver the charges, the greater is the need for procedural safeguards.
  • India has prayed that

(a) the Government of the Islamic Republic of Pakistan take all measures necessary to ensure that Kulbhushan Sudhir Jadhav is not executed;

(b) the Government of the Islamic Republic of Pakistan report to the Court the action it has taken in pursuance of sub-paragraph (a); and

(c) that the Government of the Islamic Republic of Pakistan ensure that no action is taken that might prejudice the rights of the Republic of India or Kulbhushan Sudhir Jadhav with respect to any decision the Court may render on the merits of the case

Pakistan’s submissions:

  • Khawar Qureshi begins his submissions
  • Jurisdiction of ICJ: India has used ICJ as a stage for political theatre but we have no desire to waste Court’s time in trying to score political point. India generated a sense of urgency not Pakistan and has now shifted the position on as to what urgency is. India earlier used words like “Any day” “about to be committed” for the execution of the sentence, but today used the words “6 months” before the Court. 6 months is not in any way urgent or immediate. Stating that action is “likely” to be taken does not warrant ICJ’s jurisdiction. India seeks annulment of the order but it’s not realistic to seek such relief before ICJ. Provisional measures cannot be taken when no relief can be sought. Court should be cautious when no realistic relief is sought.
  • Condition of providing assistance to seek Consular access: It wasn’t a condition on consular access but a fundamental requirement to provide assistance to Pakistan. There is material misrepresentation by India. Pakistan said that Consular Access will be provided as per the Bilateral agreement on Consular Access.
  • Bilateral agreement on Consular access: The agreement is relevant because of the nations relation. Technical argument has been brought before the Court in order to persuade the Court. Why was it not relevant is not explained. It is a binding agreement on both the nations and provides understanding of Vienna Convention.
  • Vienna Convention: India says that Vienna Convention was adopted with the intention to establish friendly relation between nations but the same does not apply when a spy is sent by the applicant to it’s neighboring nation. Hence, provisions beyond Art. 36 of the convention need to be considered. Art. 36(1) (c) cannot be applied to cases relating to espionage or spying. Stating that Pakistan breached Vienna Convention is plainly wrong. Art. 55 makes it clear that there must be no interference in the internal affairs of the receiving nation. Espionage is one such instance.
  • Kulbhushan Jadhav’s Confession: Video of Kulbhushan Jadhav’s confession is publicly available. Viewers can decide if confession was given under force. Argument that Kulbhushan Jadhav was kidnapped from Iran in order to extract a confession is far fetched.
  • Kulbhushan Jadhav’s Passport: We have a passport recovered from Kulbhushan Jadhav that bears a Muslim name and the same is yet to be explained. India hasn’t established Kulbhushan Jadhav’s nationality. No proof of his nationality has been provided by India.
  • The concerns of India over Kulbhushan Jadhav’s life are not well founded. There is no immediate risk to his life. The hearing was not necessary.
  • Pakistan has prayed that India’s request for the indication of provisional measures be rejected.

The Court noticed that it will communicate the date of the order to the parties as soon as possible.

 

Case BriefsInternational Courts

On 10.05.2017, the International Court of Justice at Hague (ICJ) notified that it will hold public hearing on 15.05.2017 in the proceedings initiated by India against Pakistan in the Kulbhushan Jadhav matter.

The hearings will be streamed live on the Court’s website www.icj-cij.org/multimedia, as well as on UN Web TV, the United Nations online television channel. The press release also mentioned that hearings will also be covered by the United Nations television broadcasting service (UNifeed, New York).

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.

To read the full text of ICJ’s press release, click here

Hot Off The PressNews

In the proceedings initiated by India on 08.05.2017 before the International Court of Justice against the execution of the death sentence imposed upon an Indian National Kulbhushan Jadhav, the International Court of Justice stayed the execution of the sentence. The information was shared by the External Affairs minister Sushma Swaraj. She also informed that Senior Advocate Harish Salve is representing India before the International Court of Justice.

India has alleged that Pakistan has violated the Vienna Convention on Consular Relationsin the matter of the detention and trial of Kulbhushan Jadhav, who has been sentenced to death by a military court in Pakistan.

India’s case before the ICJ is 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, and that the Indian authorities were notified of that arrest on 25 March 2016. India had sought consular access to Mr. Jadhav on 25 March 2016 and repeatedly thereafter.

To read International Court of Justice’s press release on the matter, click here

Case BriefsHigh Courts

Delhi High Court: Hearing a public interest petition relating to the issue of release of an Indian citizen Kulbhushan Sudhir Jadhav claiming that he has been illegally detained in Pakistan at an unknown location and  illegally sentenced by a military court in Pakistan as per a press release dated 10th April, 2017, the Court dismissed the petition observing that the respondents are best placed to take the decision as also all appropriate steps to safeguard the life and liberty of the citizens of this country, given that all efforts are being made by the Government to ensure his life and well being.

The petitioner contended that Kulbhushan was being denied consular access in contravention of the Vienna Convention on Consular Relations, 1963 and sought a direction to the government to approach the International Court of Justice for securing his release and providing consular access. In addition,  a writ was also sought against the respondents to issue protocol for the release of Indians abducted or kidnapped in other country.

The Additional Solicitor General of India, Mr. Sanjay Jain submitted that the Government had reacted with promptitude at the highest level, with Parliament being apprised of the efforts undertaken by the Government and that such sensitive matters are purely in the domain of the governmental function and policy.

The Division Bench comprising of Gita Mittal, Actg. C.J. and Anu Malhotra, J. observed that  the matters involved are of such sensitivity that it would be inappropriate and impermissible to have a discussion in an open court room, especially about the efforts of the Government to secure justice for its citizens. More importantly, any revelation regarding the efforts being made by the respondents may prejudice their success or frustrate the steps in this regard.

The Court also observed that it appears an attempt is being made by the petitioner to seek disclosure of highly confidential matters regarding which secrecy has to be maintained for the obvious reason of ensuring the safety of the life and liberty of the Indian Citizen. Observing that this matter best deserves to be left to the expertise and assessment by the respondents, the Court held that no intervention is called for as the concerns raised by the petitioner are being addressed by the Government. [Rahul Sharma v. Union of India, 2017 SCC OnLine Del 7943, decided on 19-04-2017]