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Pakistan Passes Bill To Give Kulbhushan Jadhav 'Right to Appeal' As Per ICJ Decision

  • Category
    International Relations
  • Published
    1st Dec, 2021

Context

Pakistan granted India's Kulbhushan Jadhav the ‘right to appeal’ as per the decision of the International Court of Justice after passing a Bill in a joint sitting at the Pak Parliament. However, India is no convinced with Pakistan’s new law.

Background

  • Kulbhushan Jadhav, a retired Indian Navy officer, was sentenced to death by a Pakistani military court in April 2017 on charges of espionage.
  • In 2019 the International Court of Justice (ICJ) said Pakistan was under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr Jadhav.
  • The ICJ had ruled that Pakistan was in breach of its international obligations because of the failure to provide consular access to Mr Jadhav.
  • In June, 2021, the Pakistan National Assembly adopted a bill to give Mr Jadhav right of appeal.
    • The Bill is now passed in a joint sitting of Pak's Parliament, the law seeks to provide further right of review and reconsideration in giving effect to the judgment of the ICJ.
  • However, India is not satisfied and had asked Pakistan to address certain concerns, including an option to reconsider, as mandated by the ICJ.

Analysis

What are the issues raised by India?

  • India accused Pakistan of denying unimpeded and unhindered consular access to Indian death row prisoner Kulbhushan Jadhav.
  • It also claims that the new Pakistani law to facilitate Mr Jadhav’s right to appeal his death sentence contains shortcomings.
    • Burden of legal requirements: The new law will not make a material difference to Jadhav’s case and it was more about meeting legal requirements so that he can mount a proper appeal in Pakistani courts.
    • No machinery to facilitate effective review: It does not create a machinery to facilitate an effective review and reconsideration of Jadhav’s case.
    • Allowing participation of municipal courts: It invites municipal courts in Pakistan to decide whether or not any prejudice has been caused to Shri Jadhav on account of the failure to provide consular access. This is clearly a breach of the basic tenet, that municipal courts cannot be the arbiter of whether a State has fulfilled its obligations under international law.
      • It further invites a municipal court to sit in appeal, as it were, over a judgment of the ICJ.

India has repeatedly called on Pakistan to abide by the letter and spirit of the ICJ judgement. However, the latter has failed all the time.

About International Court of Justice (ICJ)

  • The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN).
  • The ICJ was established in 1945 by the San Francisco Conference, which also created the UN.
  • All members of the UN are parties to the statute of the ICJ, and non-members may also become parties.
  • The court’s inaugural sitting was in 1946.

Permanent Court of International Justice

  • ICJ was not the first effort at instituting a multilateral forum to settle international disputes between states.
  • The ICJ’s precursor was the Permanent Court of International Justice, which fell into irrelevance owing to the inability to enforce its mandate, especially during the intervening war years.

Composition of the International Court

  • The ICJ is a continuing and autonomous body that is permanently in session.
  • It consists of 15 judges — no two of whom may be nationals of the same state — who are elected to nine-year terms by majority votes in the UN General Assembly and the Security Council.
  • The judges, one-third of whom are elected every three years, are eligible for re-election.
  • The judges elect their own president and vice-president, each of whom serves a three-year term, and can appoint administrative personnel as necessary.
  • The seat of the ICJ is at The Hague, Netherlands, but sessions may be held elsewhere when the court considers it desirable to do so.
  • The official languages of the court are French and English.

How a dispute is resolved in the court?

  • Cases before the ICJ are resolved in three ways —
    • parties can settle the dispute at any time during the proceedings
    • a state can discontinue the proceedings and withdraw at any point
    • the court can give a verdict
  • The ICJ decides disputes in accordance with international law as reflected in international conventions, international custom, general principles of law recognised by civilised nations, judicial decisions, and writings of the most highly qualified experts on international law.
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