India's Petition to ICJ in Jadhav Case Rides on 'Denial to Consular Access'
ndia has not approached the court on the basis of facts or merits of the case, but the denial of right to consular access to Kulbhushan Jadhav. This point may override Pakistan’s defence in the court on Monday
A TV grab of Kulbhushan Jadhav.
New Delhi: As India and Pakistan get ready to face each other at the International Court of Justice on Monday, News18 takes a look at India’s petition. India has not approached the court on the basis of facts or merits of the case, but the denial of right to consular access to Kulbhushan Jadhav. This point may override Pakistan’s defence in the court on Monday.
Here’s a look at the key points of the petition to be argued by senior advocate Harish Salve:
- The 12-page petition filed by India is in the form of an “urgent request” so that the court takes provisional measures to not only stay the execution order but also allow consular access to Indian government officials.
- India has argued that the court has jurisdiction to deal with the case in accordance with Article 36 of the Vienna Convention on Consular Relations, 1963 and Article 1 of the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes.
- It must be made clear that India has not approached ICJ on the merits or facts of the cace but on the denial of the right to consular access. In the 1999 case pertaining to the shooting down of an Atlantique aircraft, India had refused to accept ICJ’s jurisdiction on the pretext that it could not hear cases related to disputes between the Commonwealth countries.
- Petition said that arrest and the consequent trial of Jadhav was a violation of the rights to consular access under the Vienna convention.
- India has laid down a list of 14 reminders to allow consular access to Jadhav which “fell on deaf ears.” The dates are: March 30, 2016, May 6, 2016, June 10, 2016, July 11, 2016, July 26, 2016, August 22, 2016, November 3, 2016, December 19, 2016, February 3, 2017, March 3, 2017, March 31, 2017, April 10, 2017, April 14, 2017 and April 19, 2017.
- The petition has claimed that in 2017, Pakistan wanted India to help them with the investigation of an FIR and only based on the help, would Pakistan consider the case of granting Jadhav the right to consular access. This, India claims to be completely contrary to Vienna Convention as it is in a way limitation of the right to consular access and free communication of an Indian national with Indian authorities.
- India states that on April 10, 2016, it had received a verbal communication from the Ministry of Foreign Affairs, Islamabad, asking India to co-operate in the investigation of the FIR for gaining consular access. India had replied back stating that the offer was being made after sentencing Jadhav for death. This somehow represented the “farcical nature of proceedings of the so-called trial by a Pakistan Military court.”
- The plea further mentions that till date there has been no development on this front even when Jadhav’s mother petitioned to the Federal Government of Pakistan to strike down the order of death sentence.
- New Delhi has raised serious doubts on the confessional statement Pakistan has talked about being the solid evidence which propelled the Military court to award him the death sentence.
- India has cited past ICJ cases to bolster their point that provisional measures were taken to prevent death executions in applications which violated Article 36 of the Vienna Convention on Consular Relations.
- Raking up the International Covenant of Civil and Political Rights, India has argued about the sanctity of human life and how an individual deserves a free and fair trial which Jadhav was deprived of.
- India has only prayed to the ICJ that the court orders provisional measures like directing Pakistan to not execute Jadhav till ICJ decides the case on the basis of its merits.
- The plea stated that Jadhav only has 40 days to appeal against this order of death penalty and the period ends on May 19, hence an immediate decision of the court was needed.
- Though Pakistan can claim that ICJ does not have jurisdiction over the issue as it concerns ‘Pakistan’s national security’ and goes against the rule of not indulging in matters related to commonwealth nations’, but it will be a difficult argument to set forth considering India having taken an alternative route based on denial of consular access and highlighting the denial of a free and fair trial.
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