A Synopsis of Kulbhushan Jadhav’s case

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The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York.

In the light of the decision of the Pakistan’s military court to award death sentence to Kulbhushan Jadhav (Indian ex-navy officer) in a secret trial on the charge of espionage; India approached ICJ seeking provisional measures for the stay of Jadhav’s execution. The Indian Government instructed the team led by Senior Advocate Harish Salve to represent the country at ICJ. After hearing both the parties, in a decision dated 18.05.2017, ICJ gave the decision in favour of India. “Pakistan shall take all measures to ensure that Jadhav is not hanged until a final decision by the court”, said ICJ judge Ronny Abraham.

The victory of India at ICJ in Kulbhushan Jadhav case is pertinent from the perspective of the International law. In this case, the issues like jurisdiction, the right to consular access provisional measures, under Article 41 of ICJ Statute have majorly come upfront.

The Court relied on Article I of the Optional Protocol to the Vienna Convention to assert its jurisdiction. According to it, the Court has jurisdiction over “disputes arising out of the interpretation or application of the Vienna Convention”. The court unanimously found that prima facie dispute exists between the parties which are clear from the pleadings of the parties. Court in light of para 1 of Article 36 ‘observes the violations of the right to consular access and failure on part of the detaining State to inform the person of his right, shows that the rights of India are at least plausible’.

After the case, the republic of Pakistan dropped Khawar Qureshi QC. The battle at ICJ can also be seen as a battle between the two legal stalwarts. However, this battle has a background to it. Earlier, India’s UPA led government dropped services of Harish Salve as a counsel in Enron Arbitration case in a dispute over Dabhol power project and Khawar Qureshi was engaged as a counsel. The India lost that case.

Justice Katju (Former Judge SCI) commenting on his facebook page observed that India has opened up the pandora box by approaching ICJ as now it will give an opportunity to Pakistan to take the Kashmir Issue to the forum.

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