Kulbhushan Jadhav case: ICJ chief holds Pakistan guilty of violations

Presenting report of International Court of Justice (ICJ) to United Nations General Assembly on Wednesday, Abdulqawi Yusuf- president of ICJ stated that Pakistan h violated its obligations under Article 36 of Vienna Convention on Consular Relations pertaining to case of Kulbhushan Jhav. To begin with, he recounted exact case put forth by India. reafter, Yusuf recalled ruling of court on applicability of Vienna Convention in a case of espion. In its judgment dated July 17, 2019, ICJ h directed Pakistan to carry out an effective review and reconsideration of Jhav's conviction and sentence. reafter, Pakistan put on hold his death sentence.  

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Yusuf said, “This case was instituted by India following arrest and detention of an Indian national Mr. Kulbhushan Sudhir Jhav, who was accused by Pakistan of acts of espion. In April 2017, Mr. Jhav was sentenced to death by a military court in Pakistan. India argued that consular access was being denied to its national in violation of 1963 Vienna Convention on Consular Relations which I will refer to simply as Vienna Convention. In its judgment, court found that Pakistan h violated its obligations under Article 36 of Vienna Convention and that appropriate remedies were due in this case. This court h to dress several issues regarding interpretation and application of Vienna convention in specific circumstances of case. One of issues that court h to examine was question of wher rights related to consular access set out in Article 36 of Vienna Convention were in any manner to be excluded in a situation where individual concerned was involved in carrying out acts of espion. court ted in that regard that re is provision in Vienna convention containing a reference to cases of espion r does Article concerning Consular access- Article 36 of convention exclude from its scope certain categories of persons such as those suspected of espion. refore, court concluded that article 36 of Vienna Convention was applicable in full to case at hand.” 

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'A breach of its obligation'

ICJ president also talked about court’s decision with reference to bilateral agreement on consular access between India and Pakistan signed in 2008. Furrmore, he termed Pakistan’s delay in informing India about Jhav’s arrest as a violation of provisions of Vienna convention. Yusuf also stressed that judicial process was best suited for effective review and reconsideration of Jhav’s conviction and sentence.  

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He remarked, “Ar interesting legal question which court h to dress was wher a bilateral agreement on consular access concluded between two parties in 2008 could be re as excluding applicability of Vienna convention. court considered that this was t case. More precisely, court ted that under Vienna convention, parties were able to conclude only bilateral agreements that extend or amplify provisions. Having examined 2008 agreement, court came to conclusion that it could t be re as denying consular access in case of arrest, detention or sentence me on political or security grounds and that, it did t displace obligations under Article 36 of Vienna Convention. court was also called upon to interpret  meaning of expression ‘without delay’ in tification requirements of Article 36 of Vienna convention. court ted that in its case law, question of how to determine what was ‘without delay’, depended on given circumstances of a case. Taking into account  particular circumstances of Jhav case, court ted that Pakistan’s meeting of tification some three weeks after Mr. Jhav’s arrest constituted a breach of its obligation to inform India’s consular post without delay as required by provisions of Vienna Convention. I w come to crux of court’s ruling, where court considered reparation and remedies to be granted after rights of consular access h been violated. court found that appropriate remedy was an effective review and reconsideration of conviction and sentence of Mr. Jhav. court moreover clarified what it considered to be requirements of effective review and reconsideration. It is stressed that Pakistan must ensure full weight is given to effect of violation of rights set forth in Vienna convention and guarantee that possible prejudice caused by violation is fully examined. While court left choice of means to provide effective review and reconsideration to Pakistan, it ted that effective review and reconsideration presupposes existence of a procedure that is suitable for this purpose and observed that it is rmally judicial process that is suited to this task.” 

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