Kulbhushan Jadhav case: Four main points ICJ made as it stayed his execution

The International Court of Justice on Thursday asked Pakistan to ensure that Kulbhushan Jadhav, the former Indian Navy officer sentenced to death by a Pakistani military court for espionage in April, is not hanged until the ICJ delivers its final verdict in the petition filed by India.

In essence, this is an interim order. The court will now analyse in depth the arguments presented by India and Pakistan. Both countries will get another chance to make oral arguments before the court. Pakistan has the option of appealing against the interim order.

The 11-judge bench sitting in The Hague, Netherlands, unanimously accepted India’s arguments that Pakistan prima facie appeared to have denied Jadhav his rights by refusing consular access. It also accepted India’s demand for provisional orders calling on Pakistan not to execute Jadhav until the case had been fully heard in the ICJ, saying there was a concern that any action by Pakistan could irrevocably damage Jadhav’s rights under the Vienna Convention of Consular Relations, 1963.

Delivering the provisional orders, ICJ President Ronny Abraham made the following points:

• Preliminary decision: The ICJ, at the moment, need not satisfy itself “definitively” that it has jurisdiction in the case. It simply said that prima facie there is enough of a case that it can hear the dispute between India and Pakistan. Islamabad had argued that the ICJ does not have powers to hear the case. The court said that, on the face of it, the case seemed to conform to Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes. This Article states that “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.” 
• Denial of rights: The court accepted India’s contention that Jadhav had been denied consular access and information about his rights “prima facie” seemed to violate the Vienna Convention of Consular Relations. This is how the court linked the Optional Protocol, which gives the ICJ power to hear the case, and the Vienna Convention, which governs consular rights. Since the Vienna Convention seems to have been violated, the Optional Protocol provides ICJ powers to rule over the dispute. Article 36 (a) of the Vienna Convention provides the following rights to prisoners of a foreign country: “Consular officers shall be free to communicate with nationals of the sending State here India] and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State.” 
• Pakistan’s claims:  The ICJ also rejected two of Pakistan’s primary arguments against India. First, it said that there was nothing in the Vienna Convention that exempted consular access to those charged with espionage. Second, Pakistan’s claim that there was no urgency in the petition since Jadhav had a remedy in seeking clemency and that there was no possibility of his execution before August. But the court was of the view that the “mere fact” that Jadhav was sentenced to death was “sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India” and the urgency of the matter. Further, Pakistan refused to provide an assurance that Jadhav would not be executed till the final disposal of the petition, making his hanging a possibility before the proceedings conclude. This also convinced the court that it needed to act and ordered Pakistan not to execute Jadhav. 
• 2008 agreement: Pakistan had also claimed that the India-Pakistan on Consular Access, signed in 2008, took precedence over the provisions in the Vienna Convention. The ICJ rejected this argument. “There is nothing which prima facie suggests that the Parties, by concluding the 2008 Agreement, have limited or set aside their reciprocal obligations under the Vienna Convention on Consular Relations,” it said. “On the contrary, the 2008 Agreement amplifies, confirms and extends the Parties’ reciprocal obligations relating to consular assistance, for which the Vienna Convention is a framework.”