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The order has created insurmountable legal problems for ICJ. By Hem Raj Jain

Not approaching ICJ when consular access was first denied, the biggest mistake of India (ii)- Not petitioning ICJ to order consular access even now, the big drafting mistake of India (iii)- Not ordering councilor access to Jadhav before his any appeal (in SCP or with PoP) has made May, 18 ICJ order legally absurd, ludicrous and meaningless

On May, 18 the International Court of Justice (ICJ) stayed the death sentence awarded (to former Indian Navy official-turned-businessman Kulbhushan Jadhav) by a Pakistani military court on April 10 this year. On May 8, India had approached the ICJ for immediate suspension of death sentence awarded to Jadhav. Indicating provisional measures ICJ order said that –“[The Court indicates to the Islamic Republic of Pakistan that it must take “all measures at its disposal” to prevent the execution of an Indian national, Mr. Kulbhushan Sudhir Jadhav, pending final judgment of the Court]”

As per the ICJ verdict, Pakistan cannot execute Jadhav until the final decision of ICJ in the case comes, which is expected after August this year and this has created insurmountable legal problems for ICJ as given below:-

(1)- Not approaching ICJ when consular access was first denied by Pakistan in April, 2016 is the biggest mistake of India and which has unnecessarily complicated the entire matter. Also not petitioning ICJ to order consular access even now (before any appeal by Jadhav against death sentence) is a big drafting mistake of India and which will further complicate the matter for ICJ too.

(2)- India and ICJ never realized what will happen if Pakistan does not execute Jadhav (as per May, 18 ICJ order) but gets an appeal filed by Jadhav in appellate Court the Supreme Court of Pakistan (SCP) and then in case death sentence is upheld by SCP the mercy appeal before President of Pakistan (PoP). This appeal can be filed on Jadhav’s request or in the interest of Justice even by Jadhav’s advocate who defended Jadhav in Military Court of Pakistan (which awarded death sentence to Jadhav). Once SCP (in open court proceeding) and PoP upheld the death sentence in appeal and mercy appeal respectively without consular access to Jadhav then ICJ also cannot do anything about it (while deciding the matter on merit in August, 2017).

(3)- Because questioning the Military Court (which has come in existence through Legislative Act and through which many Pakistanis have been executed for terrorism) will not be that easy for ICJ especially when Pakistan is doing it in pursuance of US led ‘global war against terrorism’. As far questioning SCP and PoP as Kangaroo Court etc will simply send Pakistan on a confrontational path (against ICJ) while depending heavily and easily on China to provide veto on any anti-Pakistan resolution in UNSC in this matter.

(4)- As far consular access on which India and ICJ are overly depending is not such a simple matter. Vienna convention is not about consular access but about consular relations of which consular access is only a minor part. Vienna Convention is meant for promoting friendly relations between sending State and receiving State as is evident from the following also :-

The States Parties to the present Convention, Having in mind the Purposes and Principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations. Believing that an international convention on consular relations, privileges and immunities would also contribute to the development of

friendly relations among nations, irrespective of their differing constitutional and social systems. Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States. Affirming that the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention,

Article 5 Consular functions

Consular functions consist in:(b) furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention (j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;

Article 36 Communication and contact with nationals of the sending State

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.

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]]---.

(5)- The inclusion of Article 36. 2 in Vienna convention is itself a prove that consular access granted under Article 36.1 is not an absolute right rather it presuppose cooperation from sending Sate especially in serious matter of internal security of receiving State. Therefore ICJ while deciding the matter on merit in August 2017 will find it legally difficult to discard the argument of Pakistan that the sending State India did not cooperate regarding identifying and tracking of over a dozen names given by Jadhav in his confession statement about Indians who were telephonically in contact with him and were complicit with Jadhav in his alleged espionage and subversive activities in Baluchistan province of Pakistan. Here Pakistan may even quote in ICJ the speech of PM Narendra Modi from Red-fort on Independence-day who took the name of Baluchistan as a comparison to Kashmir and which may give teeth to Pakistan argument that Jadhav was only a part of the policy of Modi government to create trouble and rebellion in Baluchistan (though India has no territorial claim on Baluchistan contrary to what Pakistan has on Kashmir).

(6)- Therefore India and ICJ have blundered legally by getting the Court concludes by indicating the following measures: Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all the measures taken in implementation of the present Order. The Court also decides that, until it has given its final decision, it shall remain seized of the matters which form the subject-matter of this Order.

(7)- In the previous paragraph before said ‘Conclusion’ the Court said that – “[the Court then focuses on the issue of the link between the rights claimed and the provisional measures requested. It considers that the measures requested are aimed at ensuring that the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved. Therefore, a link exists between the rights claimed by India and the provisional measures being sought. The Court then examines whether there is a risk of irreparable prejudice and urgency. It considers 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 observes 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 notes that Pakistan has given no assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case]”.

(8)- But India (not withstanding hullaballoo being made in Indian media by jingoist Indians on so-called victory of India in said May, 18 order) by filing an ill-drafted petition in ICJ and the ICJ by giving half-cooked May, 18 order where there is no order for consular access (before any appeal or mercy appeal by Jadhav in SCP and with PoP) have created a situation where it can only invite ridicule on ICJ when it would hear Indian petition on merit in August, 2017. In May, 18 order the ICJ has legally erred on one more count. It was legally wrong on the part of ICJ to give unlimited time to India regarding execution of death sentence without asking India that why it has not gone so-far / is not going even now for appeal in SCP and with PoP (and that too when ICJ knows the non-seriousness of India which is evident from the fact that India did not approach ICJ when consular access was denied to India in the first place more than one year back by Pakistan).