Big snub to Pakistan as ICJ stays Kulbhushan Jadhav's hanging

In a major diplomatic victory for India, the International Court of Justice (ICJ) barred Pakistan on Thursday from executing former Indian naval officer Kulbhushan Jadhav, convicted by a Pakistani military court on espionage charges, till the world court pronounces its final decision in the case.

The Hague court rejected Pakistan’s claims that it did not have jurisdiction to hear the case, and ruled that India should have been granted consular access.

Also read: Won't Accept ICJ's Jurisdiction In National Security Matters: Pakistan

India heaved a collective sigh of relief with political leaders hailing the order, and the former naval officer’s friends in Mumbai erupting in joy and bursting firecrackers.

The ICJ will now call for a more comprehensive filing from India before it decides the case, a process that could take years. Pakistan risks international condemnation if it violates the ICJ order now and hangs Jadhav.

The ICJ is the top United Nations legal body for hearing disputes between countries and its rulings are binding, though occasionally flouted.

Granting the provisional relief sought by India, the ICJ ordered Pakistan to take all measures to ensure that Jadhav is not executed pending the final decision and inform the court of all the measures taken in implementation of the order.

The court also said it was legally “binding” on both countries and involves “international legal obligations”.

The ICJ said that “the mere fact that Mr Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India.”

Excerpts from the judgement
On Jurisdiction

• The Court has jurisdiction prima facie to hear the case.
• It recalled that India sought to ground its jurisdiction in Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over “disputes arising out of the interpretation or application of the (Vienna) Convention”.
• It further notes that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Convention.

On Consular access
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 in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the Court, therefore, it appears that the rights alleged by India are plausible.

Risk of irreparable prejudice

• The Court said that the mere fact that Mr. Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The court further observed that Pakistan has indicated that any execution of Mr. 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.
• The Court also noted that Pakistan gave no assurance that Jadhav will not be executed before the court has rendered its final decision.
• In those circumstances, the court was satisfied that “there is urgency” in the present case.