"It is appropriate for the court to order that Pakistan take all measures at its disposal to ensure Jadhav is not executed before this (11-member) court has given its final decision," presiding Judge Ronny Abraham said. The decision was unanimous. India asked the ICJ for the injunction barring its fellow nuclear-armed neighbour from executing Jadhav, arguing that he was denied diplomatic assistance in violation of the Vienna Treaty on Consular Relations at what it terms an unfair trial.
Pakistan maintained that the ICJ need not intervene as it had adhered to a 2008 bilateral treaty with India that supersedes the Vienna pact by stating that the right to consular access can be waived where "national security" is at risk. India rejects this interpretation. Islamabad has also noted that Jadhav's sentence remains subject to appeal and he is no immediate danger of execution.
ICJ RESERVES FINAL DECISION The ICJ ruling did not favour the arguments of either side but was meant to prevent Pakistan from taking any irrevocable steps before the court can decide whether it has jurisdiction in the case and, later, which side is right or wrong.
"The court has given its ruling on provisional measures, which is basically a procedural process," the Pakistani envoy at the ICJ, Moazzam Ahmad Khan, told reporters. "The court has said nothing on the merits or maintainability of the case." The ICJ will now call for a more comprehensive filing from India before it decides whether it has jurisdiction to hear the case in full - a process that could take years.
Indian Attorney General Mukul Rohatgi described the court's decision as a victory. "The whole world now knows that there was no fair trial. The whole thing was a charade," he told reporters in India. "The bogus stand put forth by Pakistan has been completely blown by this decision."
Pakistan has described India's decision to take its case to the UN court as "political theatre". The Vienna Convention has been a frequent subject of disputes at the ICJ, often in cases involving the United States. U.S. authorities ignored a similar ICJ injunction in 1999 and executed a German national.
AFP adds: Outlining the reasons for its decision, Abraham said Pakistan had "given no assurance" Jadhav would not be executed before the court delivered its final decision.
"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," he added. Therefore the court was "satisfied" of the "urgency" of the case.
The ICJ was set up in 1945 to rule on disputes between nations in accordance with international law. The tribunal has not yet decided whether it has jurisdiction to hear India's case, and a final ruling could take months, if not years. The last time India and Pakistan took a dispute to the ICJ was in 1999 when Islamabad protested the downing of a Pakistani navy plane that killed 16 people. But the tribunal decided it was not competent to rule in the dispute and closed the case.
Copyright Agence France-Presse, 2017
Copyright Reuters, 2017
Provisional steps procedural process: AG
ISLAMABAD: In today's interim order, the International Court of Justice (ICJ) has stated that by way of provisional measures, the status quo be maintained in the case of Commander Kulbushan Jadhav. The Attorney General's Office said in a statement on Thursday that the court has clearly underscored that the provisional measures are without prejudice to the final determination of the merits and jurisdiction of the case.
The provisional measures are a procedural process only to enable the Court to have full consideration at a later hearing. These measures have no bearing whatsoever on the final decision of the court, it said. The statement said that Pakistan attended the hearing out of its utmost respect for the Court and pursuant to the established jurisprudence that the challenge to jurisdiction can be made via appearance and not by abstaining from the process. In addition, Pakistan attended because of its conviction that the only way to resolve all outstanding issues is through peaceful means. We are confident that India would not be able to hide the subversive activities it is trying to carry out through its agents like commander Jadhav.
"India has no substance in the case," it said. As far as Pakistan is concerned, the Court's decision has not changed the status of Commander Jadhav's case in any manner. In our submissions on 15 May, we had assured the Court unambiguously that Commander Jadhav would be provided every opportunity and remedy available under the law to defend his case. Commander Jadhav still has ample time to petition for clemency. To recall, we had in our presentation on 15 May, proposed to the court that a final hearing be held on the merits and maintainability of the case as early as possible. "We are determined to pursue this case to its logical end," the Attorney General's Office said.
End
Copyright Business Recorder, 2017