On previous occasions when the ICJ has considered the issue of death penalty/consular access, it has never ordered relief of “acquittal, release and return” such as that sought by India.
According to an article
titled 'ICJ’s limited jurisdiction', Pakistan is well within its rights to try and sentence Jadhav under its domestic laws for espionage.
However, one can jump around but he is not going anywhere. In long term and patience based reality; he will be facing an open trial and counselor access does not mean anything.... Indian media or establishment can twist it as much as want to but, India's wish/plea of acquittal, release & return are denied. Its simple.
Save this for your reading and reality check...
Funny you talk of reality check:
Pakistan claimed ICJ has no Jurisdication in the case:
(1) finds, unanimously, that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017;
Pakistan objected to the admissibility of the Application of India in ICJ
(2) rejects, by fifteen votes to one, the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible;
Pakistan Denied Consular acess to India.
(3) finds, by fifteen votes to one, that, by not informing Mr. Kulbhushan Sudhir Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, the Islamic Republic of Pakistan breached the obligations incumbent upon it under that provision;
Pakistan did not notify Indian consulate in the matter:
(4) finds, by fifteen votes to one, that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations;
Pakistan denied consular access to India.
(5) finds, by fifteen votes to one, that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations;
Pakistan claimed it was under no obligation to provide consular access to India
(6) finds, by fifteen votes to one, that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations;
Pakistan claimed due judicial process was executed in te case.
(7) finds, by fifteen votes to one, that the appropriate reparation, in this case, consists in the the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention, taking account of paragraphs 139, 145 and 146 of this Judgment;
Pakistani military court handed the death sentence in the case.
(8) declares, by fifteen votes to one, that 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.
Your judicial expediency was actually better in hanging Zulfikar Ali Bhutto than Kulbhishan Yadav if memory serves right.
Now lets come to the reality check,
I. JURISDICTION
The Court, having noted that India and Pakistan are parties to the Vienna Convention and the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes (hereinafter the “Optional Protocol”), finds that it has jurisdiction under Article I of the latter instrument to entertain India’s claims based on alleged violations of the Vienna Convention.
II. ADMISSIBILITY
Pakistan has raised three objections to the admissibility of India’s Application. These objections are based on
India’s alleged abuse of process,
abuse of rights and
unlawful conduct.
A. First objection: abuse of process In support of its first objection, Pakistan contends, first, that India abused its procedural rights when requesting the Court to indicate provisional measures in this case, and secondly, that before instituting the current proceedings, India failed to give consideration to other dispute - 3 - settlement mechanisms envisaged in Articles II and III of the Optional Protocol. The Court considers that neither argument can be upheld and
rejects Pakistan’s first objection to the admissibility of India’s Application.
B. Second objection: abuse of rights Pakistan based its second objection on three main arguments. First, it refers to India’s refusal to “provide evidence” of Mr. Jadhav’s Indian nationality. Secondly, Pakistan mentions India’s failure to engage with its request for assistance in relation to the criminal investigations into Mr. Jadhav’s activities. Thirdly, Pakistan alleges that India authorized Mr. Jadhav to cross the Indian border with a “false cover name authentic passport” in order to conduct espionage and terrorist activities. In response to Pakistan’s first argument, the Court observes that the evidence before it shows that both Parties have considered Mr. Jadhav to be an Indian national. With regard to the second and third arguments, based on various alleged breaches of India’s obligations under Security Council resolution 1373 (2001), the Court is of the view that such allegations are properly a matter for the merits and therefore cannot be invoked as a ground of inadmissibility. For these reasons,
the Court finds that Pakistan’s second objection to the admissibility of India’s Application must be rejected. The second and third arguments advanced by Pakistan are addressed by the Court when dealing with the merits.
C. Third objection: India’s alleged unlawful conduct In its third objection, Pakistan asks the Court to dismiss the Application on the basis of India’s alleged unlawful conduct, relying on the “clean hands” doctrine and the principles of “ex turpi causa non oritur actio” and “ex injuria jus non oritur”. The Court considers that none of the arguments put forward can be upheld and
rejects Pakistan’s third objection to the admissibility of India’s Application.
