Pakistan violated Kulbhushan Jadhav’s basic human rights by not allowing India consular access to him, Justice Dalveer Bhandari, the Indian judge on the ICJ bench, said in his declaration in the case. The declaration was issued along with the unanimous ruling of the International Court of Justice staying the execution of Jadhav, sentenced to death by a Pakistani military court for alleged espionage.
“The case gives rise to questions pertaining to the basic violation of human rights through the denial of consular access during the pendency of court proceedings in Pakistan, which culminated with Jadhav’s death sentence,” Judge Bhandari, who has been a member of the ICJ since April 2012, said.
He outlined the facts pertaining to India’s application instituting proceedings as well as to India’s request for provisional measures.
He stated four requirements for the indication of provisional measures — prima facie jurisdiction; plausibility; real and imminent risk of irreparable prejudice and the link between the rights claimed on the merits and the provisional measures requested.
Bhandari mentioned the role of the 2008 India-Pakistan Agreement on Consular Access.
He agreed with the court that there is nothing which prima facie suggests that the parties, by concluding the 2008 Agreement, had limited or set aside their reciprocal obligations under the Vienna Convention on Consular Relations.
“On the contrary, the 2008 Agreement amplifies, confirms and extends the parties’ reciprocal obligations relating to consular assistance, for which the Vienna Convention is a framework. Therefore, the 2008 Agreement does not exclude the Court’s jurisdiction in the present case,” he said.
He stressed that India did not rely on the 2008 Agreement, but only claimed the violation of the Vienna Convention.
He said the rights claimed by India on the merits were plausible because they concerned consular access to a person who was indisputably an Indian national, who had been arrested, tried and convicted in a foreign country.
“Therefore, it is plausible that India holds the rights it is claiming in the circumstances of the case, namely with respect to Jadhav,” he said.
Concerning real and imminent risk of irreparable prejudice, he stated the similarities between the present case and the three previous death penalty and Vienna Convention-related cases fought at the world court during the trial.
The three cases were Mexico vs US, Germany vs US and Paraguay vs US.
“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,” he said.
The UN’s highest judicial body also asked Pakistan to take “all measures” to ensure that Jadhav, sentenced to death by a Pakistani military court for alleged espionage, was not executed till the court had delivered its final verdict on the issue.
India welcomed the court’s unanimous decision on Jadhav, 46, while Islamabad said it had informed the ICJ that it did not accept the court’s jurisdiction in matters related to national security.
Pakistan, which announced the sentence on Jadhav on April 10, claims its security forces arrested him from its restive Balochistan province on March 3 last year after he reportedly entered from Iran. However, India maintains that he was kidnapped from Iran where he had business interests after retiring from the Navy.
Jadhav’s case is the latest flash-point in the tensions between Pakistan and India. The two countries last faced off at the ICJ 18 years ago when Islamabad sought its intervention over the shooting down of its naval aircraft.