I/II. [In this regard, it may be pointed out that several news outlets have wrongly reported that the ICJ has issued a “stay order” or “interim order” on Jadhav’s execution in this case. This is not accurate as provisional measures, which have some of the trappings of a stay order, may only be issued by the ICJ under the provisions of article 41 of the statute of the ICJ. As the spokesman of the external affairs ministry has subsequently clarified, the president of the court – acting in exercise of his powers under article 74(4) of the ‘Rules of the Court’ – called upon Pakistan to not take any action so as to prejudice the ability of the court to award effective interim relief (provisional measures). The power provided to the president of the court under article 74(4) of the rules of the court – which is only exercisable when a request for indication of provisional measures has been filed (as has been done by India in this case) – is merely the power to ‘request’ the parties to not take actions which would hinder or preclude a potential provisional measure issued by the court.]
https://thewire.in/134185/what-to-expect-from-india-and-pakistans-consular-case-at-the-icj/ As India, Pak Prepare to Square Off at ICJ Over Kulbhushan Jadhav, Here’s What Happens Next BY YATEESH BEGOORE SHIVASWAMY ON 10/05/2017 Pakistan may have denied Indian consuls access to Kulbhushan Jadhav but the world court is likely to hold Pakistan’s authorities accountable to the standards set in the Vienna Convention. In a decisive move on May 8, 2017, the Republic of India took legal recourse to the International Court of Justice (ICJ) by instituting proceedings against the Islamic Republic of Pakistan for “egregious violations” of India’s rights under the Vienna Convention on Consular Relations, 1963 (VCCR). India’s application to the ICJ arises out of a dispute in which the Pakistani military detained, tried and recently sentenced to death an Indian national whilst denying India consular access to him. This action is in breach of India’s rights, and Pakistan’s obligations, under the VCCR. In addition to praying that the court direct the government of Pakistan to “annul the decision of the military court,” India has also filed a request for the “indication of provisional measures” from the court under Article 41 of the statute of the ICJ. In light of the ICJ’s press release on the issue, it appears that the registrar of the court, who is in receipt of India’s application instituting proceedings against Pakistan, has already transmitted the application to Pakistan. Presumably, the judges have also entered the application into the court’s general list. In the days to come, the application will be duly registered, translated and printed in a bilingual (English and French) document which will be forwarded to the secretary-general of the United Nations and all states which are parties to the statute of the International Court of Justice. Since the court is currently not in session, the president of the court, Judge Ronny Abraham, will meet the ‘agents’ – the court’s term for the designated representatives – of both parties to the proceeding and issue an order fixing the time-limits within which written pleadings, containing adversarial statements of fact and law, are to be filed by India and Pakistan. This phase is followed by oral proceedings where all the judges of the court will sit to hear oral arguments by the representatives, counsels, agents and/or advocates of the parties. Accordingly, the average duration of a case before the ICJ – from institution of proceedings to the delivery of the final judgement – is four years, but it may be noted that certain cases, such as the 1999 aerial incident case between India and Pakistan, have been decided within the period of a year. In all likelihood, the duration of this case will be longer as Pakistan, if it does not challenge the jurisdiction of the court, is likely to request the appointment of a ‘judge ad hoc.’ The temporary appointment of ad hoc judges is envisaged under article 31 (2) and (3) of the statute of the court – which allows a party to a proceeding not having a judge of its nationality on the bench to choose a person to sit as judge ad hoc. The presence of an Indian judge, Dalveer Bhandari, on the bench is likely to precipitate a Pakistani request for an ad hoc judge of its nationality. Such a request may delay the constitution of the court which will sit to hear the case. As both sides settle in for what may, at the very least, be a year-long legal battle, Jadhav’s fate depends on the provisional measures which India has requested under article 41 of the statute of the ICJ. Under Article 41 of the statute, the court may issue binding provisional measures upon a party to the dispute if it is convinced that the rights which form the crux of the application instituting proceedings are in immediate danger. Generally, urgent oral proceedings (which constitute a separate phase of the case) are held within three to four weeks to consider a request for provisional measures, and an order is issued if warranted by the circumstances of the case. Remarkably, the LaGrand case, which involved a similar consular access dispute between the US and Germany, saw the court issue provisional measures order within 24 hours. ***In this regard, it may be pointed out that several news outlets have wrongly reported that the ICJ has issued a “stay order” or “interim order” on Jadhav’s execution in this case. This is not accurate as provisional measures, which have some of the trappings of a stay order, may only be issued by the ICJ under the provisions of article 41 of the statute of the ICJ. As the spokesman of the external affairs ministry has subsequently clarified, the president of the court – acting in exercise of his powers under article 74(4) of the ‘Rules of the Court’ – called upon Pakistan to not take any action so as to prejudice the ability of the court to award effective interim relief (provisional measures).*** [Emphasis added.] ***The power provided to the president of the court under article 74(4) of the rules of the court – which is only exercisable when a request for indication of provisional measures has been filed (as has been done by India in this case) – is merely the power to ‘request’ the parties to not take actions which would hinder or preclude a potential provisional measure issued by the court.*** [Emphasis added.] The actual binding provisional measure may only be issued by the court when it sits to adjudicate India’s request for indication of provisional measures, i.e., under the aforementioned urgent proceedings procedure. While predicting the judgment of any court is a precarious – and potentially embarrassing – endeavour, the established jurisprudence of the ICJ in handling requests for provisional measures involving the death penalty, which has previously been elaborated on, seems to favour India’s current request “to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed” pending final decision of the court. Pakistan’s likely arguments – and a response While it is impossible to predict every argument which may be advanced by Pakistan in this dispute, the statements which have hitherto been made by Pakistani officials offer us an insight into the legal case which is no doubt being currently assembled by its foreign ministry. Indeed, India’s written application takes note of – and seeks to counter – the claim by the Pakistan foreign ministry’s spokesperson that his country was not obliged to provide India consular access to Jadhav as “Pakistan and India have signed an agreement on consular access in 2008, and according to clause VI of that agreement, decision to grant consular access in cases where detentions and arrests relate to political or security matters, the request of consular access will be decided on merits of the case.” While the official treaty database of the MEA does not include the 2008 “Agreement on Consular Access,” Pakistan would be entitled to claim, under international law, that the two countries have concluded a successive treaty dealing with the same ‘subject matter’ as the VCCR and that, consequently, their rights and obligations should be governed by this successive treaty (and not the VCCR, under whose Optional Protocol India has approached the ICJ). This, however, would not be a tenable argument as there is no treaty of the style and title “Agreement on Consular Access” between India and Pakistan registered with the secretariat of the UN. In this regard, Article 102 of the Charter of the UN makes clear that parties to treaties not registered with the secretariat may not invoke said treaties before any organ of the UN – the ICJ, unfortunately for Pakistan, is an organ of the UN. Additionally, in a April 30, 2017 interview, Pakistan’s high commissioner to India asserted that his country was not obligated to adhere to the provisions of the VCCR as they did not “take precedence” over Pakistan’s domestic laws. He also suggested that the VCCR had not been incorporated in Pakistan’s domestic laws. This argument betrays the high commissioner’s less than erudite understanding of international law and obligations thereto. Under international law, unless otherwise provided, states are generally free to choose the manner in which they put themselves in the position to meet their international obligations domestically: they may choose to directly apply international law or transform it into national law by way of statutes. What states are not free to choose is whether or not they will perform their international obligations – generally owed to other states via treaties such as the VCCR – based on their internal law. In summation, Pakistan’s domestic law cannot be invoked as a justification or excuse for its violation of international law. Consequently, while Pakistani courts and authorities were happy (and in most cases obligated) to apply their national law to deny Indian consuls access to Jadhav, the International Court of Justice will hold the authorities to the standards of the VCCR which Pakistan chose to bind itself to in 1969. Yateesh Begoore Shivaswamy is an international lawyer. II. [India has traditionally been hesitant to take its case against Pakistan to international forums. The last time it applied to the ICJ to intervene, asserting New Delhi’s right to ban Pakistani aircraft from using its airspace in 1971, it lost the case. In 1974, India submitted a list of circumstances under which it would not accept the jurisdiction of the ICJ, which includes references to fellow Commonwealth nations, effectively keeping disputes with Pakistan out of the ICJ’s purview.] https://scroll.in/article/837253/the-daily-fix-why-indias-bold-effort-to-prevent-khulbhushan-jadhavs-execution-is-tricky Why India’s bold effort to prevent Kulbhushan Jadhav’s execution is tricky 3 hours ago. Rohan Venkataramakrishnan Life and death Prime Minister Narendra Modi’s government made a bold move in deciding to take the case of an Indian citizen, who is facing impending death at the hands of the Pakistan government, to an international forum. New Delhi moved a petition before the International Court of Justice arguing that Pakistan’s treatment of Kulbhushan Jadhav – who was labelled an Indian spy and then sentenced to death by Pakistani military authorities – violated a treaty that both countries are party to. The case will now come up before the Hague on May 15, when both India and Pakistan will be allowed to make their cases. ***India has traditionally been hesitant to take its case against Pakistan to international forums. The last time it applied to the ICJ to intervene, asserting New Delhi’s right to ban Pakistani aircraft from using its airspace in 1971, it lost the case. In 1974, India submitted a list of circumstances under which it would not accept the jurisdiction of the ICJ, which includes references to fellow Commonwealth nations, effectively keeping disputes with Pakistan out of the ICJ’s purview.*** [Emphasis added.] Yet Jadhav’s case is more specific. India has pointed to Pakistan’s violation of the Vienna Convention on Consular Relations, which includes an option protocol giving the ICJ “compulsory jurisdiction” over disputes. Fortuitously, both India and Pakistan are party to the protocol. India claims Jadhav has been hauled up and given the death sentence in a sham trial and has demanded more than a dozen times that Pakistan provide consular access to him, but to no avail. This denial of consular access forms the base of India’s ICJ petition. The reason the move is bold, and tricky, is two-fold. One, India’s reluctance to use multilateral forums comes from the worry that the same legal manoeuvers can be used against the country too. If India takes Pakistan to court, Pakistan could do the same on, say, New Delhi’s record in dealing with Kashmir. Though the Vienna Convention here puts India on solid ground, just turning up at a forum like the ICJ opens New Delhi up to other legal challenges. Two, India is not guaranteed a victory. While the Vienna Convention is clear that governments must provide consular access, the question of jurisdiction might come in the way. A complex web of treaties, submissions and legalities governs whether the ICJ has jurisdiction in this case, and Pakistan is most likely to cite India’s own stance in the past as a way of preventing the ICJ from having any jurisdiction in the case. Nevertheless, the matter on hand is one of life and death. India is taking the unusual step of going out of its way to prevent the execution of one of its citizens, who appears to have been given a death sentence under murky circumstances with little recourse to justice. New Delhi must be applauded for taking this bold move to prevent an unjust execution. It now needs to make sure it uses its time in court well. -- Peace Is Doable -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. 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