In a major diplomatic victory for India, the International Court of Justice (ICJ) on Wednesday ordered continued stay on the execution of Kulbushan Jadhav and told Pakistan to reconsider the sentence for breaching Article 36 of the Vienna Convention - denial of consular access and notification. India had asked the UN court to intervene in the case claiming that Jadhav, sentenced to death for espionage in 2017, had been given an unfair trial and denied diplomatic assistance by Pakistan.
The court rejected all the objections of Pakistan, including on admissibility of the case and the claims that India had not provided the actual nationality of Jadhav. It observed that even Pakistan had acknowledged the fact that Jadhav was an Indian national. The court, in its ruling by 15-1, declared "a continued stay of execution" on Jadhav, saying it "constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence" of the accused.
I wholeheartedly welcome the verdict of International Court of Justice in the case of Kulbhushan Jadhav. It is a great victory for India. /1— Sushma Swaraj (@SushmaSwaraj) July 17, 2019
In denying India consular access to Jadhav, Pakistan had not only violated the Vienna Convention on diplomatic relations but also ignored a 2008 bilateral agreement on consular access. Pakistan has also stubbornly refused to agree to a Mutual Legal Assistance Treaty with India, or even ratify one under SAARC.
In November 2008, India and Pakistan had inked a bilateral agreement on Consular access to their prisoners in each others' countries.
Pakistan, which has repeatedly denied India's requests for consular access to Jadhav, has also failed to agree to a Mutual Legal Assistance Treaty (MLAT) with India. In September 2014, India had sent a fresh request to Pakistan to sign the MLAT. The reason why Pakistan has avoided signing an MLAT is because of its ceaseless support to cross border terrorism. Pakistan has ignored more than 40 MLAT requests from India.
The India-Pakistan bilateral agreement on consular access would in no way get diluted by the Vienna Convention on 'the Law of Treaties', which recognizes that countries may have bilateral arrangements that "amplify or supplement" the principles of the multilateral Treaty.
In its arguments to the ICJ, India had termed Pakistan an "irresponsible State", which has violated international treaties and obligations to which it is a signatory. These include the Vienna Convention on Consular Relations and The International Covenant on Civil and Political Rights (ICCPR).
India had also told the ICJ that the military court trial in Pakistan is "farcical". It said that Pakistan set up military courts after 2015 as "an instrument for the military to engage in summary trials". These courts have been responsible for several death sentences post-April 2017.
India has also told the UN top court that Jadhav was denied the right to be defended by a legal counsel of his choice and that his conviction and death sentence is based on "confessions" taken in captivity.
India has also said that Pakistan is using the Jadhav case to blame India for its problems in the restive Balochistan province. Jadhav was a civilian who was kidnapped and moved to Pakistan by armed groups. Pakistan faces several problems in its border with Iran and it has used proxy groups such as Jaish al Adl against Iran. Iranian officials have spoken of Pakistan's sponsorship of terrorist activities along the Iran-Pakistan border. The US State Department has also designated Jaish al Adl as a front of Jundullah, which is a Specially Designated Global Terrorist.
India succeeded in stopping Pakistan from taking the law into its own hands and by approaching the ICJ in 2017, it led to stopping Islamabad from executing Jadhav. Pakistan's argument that the International Court of Justice had no jurisdiction in the case was overruled by the ICJ.
India's strong legal case in the ICJ led to Pakistan's military being restrained from going ahead with Jadhav's death sentence. India argued that since Pakistan maintains it "arrested" Jadhav, under the Vienna convention Islamabad should have notified Indian officials without delay.
Under Article 36 of the Vienna Convention, Indian officials should have been allowed access to Jadhav and he too is entitled to similar access to Indian consular officials. Pakistan was also bound to inform Jadhav of his rights to access Indian officials, and any communication by him should have been forwarded to Indian officials.
India's consular officers have the right to visit Jadhav, and to arrange for his legal representation.
After Jadhav's "arrest" on March 3, 2016, Pakistan took over three weeks to inform India about it. It was conveyed by the Pakistan Foreign Secretary to the Indian High Commission on March 25.
The failure of Pakistan to inform Jadhav of his consular rights and in repeatedly denying India access to him is also a breach of the Vienna convention.
India has told the ICJ that the entire trial and sentence by Pakistan's military court, which was based on "confession taken under custody", without adequate legal representation was farcical. "It was in brazen defiance of the rights and protections provided under the Vienna Convention and the International Law, including ICCPR".
Under the International Covenant on Civil and Political Rights (ICCPR), a key element is the right to an effective defence against criminal charges, and to a fair and impartial trial, including the accused being represented by a lawyer of his or her choice.
India has also maintained that the use of military courts for the trial of civilians is violative of due process standards and the trial of foreign national civilians is violative of the ICCPR.
India has also conveyed to the court that Pakistan's attempt for claiming exemption to Article 36, on granting consular access, on the pretext that Jadhav is accused of espionage is not tenable.
India also cited that the 2008 bilateral treaty on Consular access does not jettison the Vienna Convention.
India has maintained that Pakistan's request for legal assistance is a propaganda document and that it is Islamabad which has time and again failed to agree to a Mutual Legal Assistance Treaty with India or to ratify MLAT under SAARC.