Kulbhushan Jadhav case: Appropriate remedies due in the case, says ICJ
United Nations, Oct 31: The International Court of Justice (ICJ) on Thursday found Pakistan guilty of violating under Article 36 of Vienna Convention in the case of Indian national Kulbhushan Jadhav.
Presenting the report of the International Court of Justice to the 193-member General Assembly on Wednesday, the bench led by Abdulqawi Yusuf said in its judgement of July 17 the principal judicial organ of the United Nations "found that Pakistan had violated its obligations under Article 36 of the Vienna Convention and that appropriate remedies were due in this case."
Verdict on Kulbhushan Jadhav eased Indo-Pak tensions: ICJ chief
In a major victory for India, the ICJ had ruled in July this year that Pakistan must review the death sentence awarded to Jadhav, a retired Indian Navy officer who was sentenced to death by the Pakistani military court on charges of "espionage and terrorism" after a closed trial in April 2017.
The bench led by Yusuf had ordered an "effective review and reconsideration of the conviction and sentence of Mr Kulbhushan Sudhir Jadhav."
Yusuf elaborated on several aspects of the Court's ruling in Jadhav's case while presenting his report to the General Assembly.
He said one of the issues that the Court had to examine was the question of whether the rights relating to consular access, set out in Article 36 of the Vienna Convention, were in any manner to be excluded in a situation where the individual concerned was suspected of carrying out acts of espionage.
"The Court noted in that regard that there is no provision in the Vienna Convention containing a reference to cases of espionage; nor does the Article concerning consular access, Article 36, exclude from its scope certain categories of persons, such as those suspected of espionage. Therefore, the Court concluded that Article 36 of the Vienna Convention was applicable in full to the case at hand," he said.
The Court was also called upon to interpret the meaning of the expression "without delay" in the notification requirements of Article 36 of the Vienna Convention. The Court noted that in its case, the question of how to determine what was meant by the term "without delay" depended on the given circumstances of a case.
"Taking into account the particular circumstances of the Jadhav case, the Court noted that Pakistan's making of the notification some three weeks after Mr Jadhav's arrest constituted a breach of its obligation to inform India's consular post "without delay", as required by the provisions of the Vienna Convention," he noted.
He further said that "another interesting legal question" that the Court had to address was whether a bilateral agreement on consular access concluded between the two Parties - India and Pakistan - in 2008 could be read as excluding the applicability of the Vienna Convention.
"The Court considered that this was not the case," he said. "More precisely, the Court noted that under the Vienna Convention, parties were able to conclude only bilateral agreements that confirm, supplement, extend or amplify the provisions of that instrument. Having examined the 2008 Agreement, the Court came to the conclusion that it could not be read as denying consular access in the case of an arrest, detention or sentence made on political or security grounds, and that it did not displace obligations under Article 36 of the Vienna Convention."
Coming to the "crux" of the Court's ruling, he said the Court considered the reparation and remedies to be granted after it had found that the rights to consular access had been violated.
Reject as inadmissible, Pakistan tells ICJ in Kulbhushan Jadhav case
"In line with its earlier jurisprudence in other cases dealing with breaches of the Vienna Convention, the Court found that the appropriate remedy was effective review and reconsideration of the conviction and sentence of Mr Jadhav."
Yusuf told the General Assembly that the Court moreover clarified what it considered to be the requirements of effective review and reconsideration.
It stressed that "Pakistan must ensure that full weight is given to the effect of the violation of the rights set forth in the Vienna Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined."
"While the Court left the choice of means to provide effective review and reconsideration to Pakistan, it noted that effective review and reconsideration presupposes the existence of a procedure that is suitable for this purpose and observed that it is normally the judicial process that is suited to this task."
Yusuf said that following its ruling, the Court received a communication dated August 1, 2019, from Pakistan, confirming its commitment to implementing the July 17 judgment in full.
"In particular, Pakistan stated that Mr Jadhav had been immediately informed of his rights under the Vienna Convention and that the consular post of the High Commission of India in Islamabad had been invited to visit him on August 2, 2019," Yusuf said.
India had welcomed the verdict of the International Court of Justice, saying that the ruling of the court by a vote of 15-1 upheld India's position in the case.
Article
36
of
Vienna
Convention
states:
1.With
a
view
to
facilitating
the
exercise
of
consular
functions
relating
to
nationals
of
the
sending
State:
(a)
consular
officers
shall
be
free
to
communicate
with
nationals
of
the
sending
State
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;
(b)
if
he
so
requests,
the
competent
authorities
of
the
receiving
State
shall,
without
delay,
inform
the
consular
post
of
the
sending
State
if,
within
its
consular
district,
a
national
of
that
State
is
arrested
or
committed
to
prison
or
to
custody
pending
trial
or
is
detained
in
any
other
manner.
Any
communication
addressed
to
the
consular
post
by
the
person
arrested,
in
prison,
custody
or
detention
shall
be
forwarded
by
the
said
authorities
without
delay.
The
said
authorities
shall
inform
the
person
concerned
without
delay
of
his
rights
under
this
subparagraph;
(c)
consular
officers
shall
have
the
right
to
visit
a
national
of
the
sending
State
who
is
in
prison,
custody
or
detention,
to
converse
and
correspond
with
him
and
to
arrange
for
his
legal
representation.
They
shall
also
have
the
right
to
visit
any
national
of
the
sending
State
who
is
in
prison,
custody
or
detention
in
their
district
in
pursuance
of
a
judgement.
Nevertheless,
consular
officers
shall
refrain
from
taking
action
on
behalf
of
a
national
who
is
in
prison,
custody
or
detention
if
he
expressly
opposes
such
action.
2.
The
rights
referred
to
in
paragraph
1
of
this
Article
shall
be
exercised
in
conformity
with
the
laws
and
regulations
of
the
receiving
State,
subject
to
the
proviso,
however,
that
the
said
laws
and
regulations
must
enable
full
effect
to
be
given
to
the
purposes
for
which
the
rights
accorded
under
this
article
are
intended.
(with PTI inputs)