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India scores legal and moral victory over Pakistan at international court
Posted:May 18, 2017
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India on Thursday (May 18) scored a major legal, diplomatic and moral victory over Pakistan when the International Court of Justice (ICJ) directed Islamabad not to execute alleged Indian spy Kulbhushan Jadhav pending its final decision and inform it of the steps being taken to implement the order.
"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," ICJ President Ronny Abraham said in the operative portion of the unanimous order which he read out in the open court at The Hague for nearly 30 minutes.
There are 10 judges, including Justice Dalveer Bhandari of India, apart from the President which form the court.
In a declaration appended to the judgement, Justice Bhandari concurred with the court on its indication of provisional measures but sought to place on record his views concerning the requirements for indicating these measures in more detail.
"...In addition to issues of consular relations, this is a case in which it regrettably appears, on a preliminary examination of the facts, that the basic human rights of Jadhav have been violated by not allowing India to have consular access to him after his arrest and during the pendency of the criminal proceedings against him in Pakistan," Justice Bhandari said.
The ruling comes 10 days after India approached the UN's top court for provisional measures of protection -- an interim relief. The court had earlier written to Pakistan Prime Minister Nawaz Sharif to see that Jadhav, a former India Navy commander, was not executed.
Officials of both the countries were present when the judge asked the registrar to read out the order to both the parties.
In a public hearing on Monday, India sought the court's intervention to annul the death sentence given by a Pakistan military court to Jadhav who Islamabad says was arrested in Balochistan on charges of spying, sabotage and terrorism.
India has maintained that he was abducted from Iran and taken to Balochistan. The army court had sentenced him to death on a "confessional" statement he had made in military custody.
India accused Pakistan of violating the Vienna Convention by denying consular access to Jadhav and pronouncing him guilty of espionage in a "farcical trial".
Pakistan, however, rejected the Indian argument on the ground that New Delhi had no right to invoke the jurisdiction of the ICJ and that the Vienna Convention does not provide for matters relating to spies, terrorists and those who indulge in espionage.
Giving its interim decision on the application moved by India against Jadhav's execution, Justice Abraham said the court was unanimous in indicating the "provisional measures that give the rights to the subject of judicial proceedings".
In the detailed order, the court said prima facie it felt that it had jurisdiction to go into the matter given the details of the present case.
The court also found that there exists a lien between the rights India seeks to assert and the provisional measures the court can deploy.
"The decision given in the present proceedings will in no way prejudice the jurisdiction of the court to deal with the merits of the case or any question relating to the admissibility of the application of the merits themselves. It is unaffected right of the governments of India and Pakistan to submit arguments in respect of those questions."
Justice Abraham noted the Pakistan counsel's statement that Jadhav would not be executed till August but there was no assurance that he would not be executed after that.
The court also noted that Jadhav should have been given consular access as sought by India. The court also upheld India's stand that whether the rights sought by India are at least plausible.
"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."
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