In a major diplomatic win for India, the International Court of Justice (ICJ) on Wednesday passed an order staying the execution of Indian national Kulbhushan Jadhav, who was awarded death penalty by a Pakistani military court on charges of espionage and terrorism. The ICJ in Hague also ordered Pakistan to allow consular access to Jadhav.
The ICJ observed in its verdict that Pakistan had violated Vienna Convention by not providing India with consular access to Jadhav. "A continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav," the ICJ said.
The ICJ also ordered Pakistan to review and reconsider the capital punishment awarded to Jadhav through a means of its own choosing. It is to be noted that Pakistan had repeatedly argued before the UN Court that Article 36(1) of the Vienna Convention does not apply to people involved in espionage. The ICJ, however, rejected Pakistan's claim and said that Islamabad had breached its obligation by not informing Kulbhushan Jadhav of his rights under the Vienna Convention.
What is Article 36(1) of Vienna Convention?
Article 36(1) of the Vienna Convention affords the following privileges to the consular officers of states for communicating with their national detained in another state: (a) consular officers can freely communicate with nationals of the state where the individual has been detained; (b) upon request of the detainee, the detaining state must immediately inform the consular post of the detainee’s state and (c) consular officers can visit the detained individual and arrange for legal representation.
Pakistan has complied with its obligations under sub-clause (a) of Article 36(1) by duly notifying India of the arrest and detention of Jadhav but Pakistan violated sub-clause (c) of clause (1) of Article 36 by rejecting India’s request for consular access to Jadhav.
The travaux préparatoires (“commentary”) on Article 36(1)(c) of the Vienna Convention imposes a mandatory obligation on the detaining state to allow consular officers of the detainee’s state to visit.
The Convention was adopted at Vienna on April 24, 1963, the United Nations Conference on Consular Relations, which took place at the Neue Hofburg from March 4 to April 22, 1963.