Recently, the Pakistani parliament passed a law empowering Indian prisoner Kulbhushan Jadhav (Kulbhushan Sudhir Jadhav), who was sentenced to death, to file a reconsideration appeal against his conviction by a military court.
The bill was created to legislate an order of the International Court of Justice (ICJ).
However, India believes that there are many "flaws" in the law and the necessary steps need to be taken to implement the ICJ mandate "in letter and spirit".
Kulbhushan Jadhav Case
Arrested: Jadhav, a 51-year-old retired Indian Navy officer, was sentenced to death in April 2017 by a Pakistani military court on charges of espionage and terrorism.
According to the Pakistani government, on 3 March 2016, Jadhav was arrested inside Balochistan in Mashkel near the border region of Chaman. He was arrested during a counterintelligence raid conducted by security forces. India denied the claim and said he was abducted from Iran.
In December 2017, Jadhav's wife and mother were allowed to meet him through a glass barrier, India opposed Pakistan's claim that it had "consular access" to the ICJ.
Denial of Consular Access: India approached ICJ against Pakistan for denying Jadhav consular access (Vienna Convention) and challenging the death penalty.
ICJ Ruling: In 2019, the ICJ ruled that Pakistan was bound by international law to "effectively review and reconsider" Jadhav's sentence.
Pakistan's Response: In view of the ICJ's order, the Pakistan government issued a special ordinance allowing Jadhav to file an appeal.
The Parliament of Pakistan has passed the International Court of Justice (Review and Reconsideration) Bill, 2021 to fulfill its obligation under the decision of ICJ.
Defects in the law
Lack of Clear Roadmap: India believes that the bill passed by Pakistan repeats the ordinance of 2019 without formulating any mechanism for effective review and review in the case of Kulbhushan Jadhav.
Extraordinary Powers to the Municipal Court: It empowers the Municipal Courts in Pakistan to determine whether the failure to grant consular access to Jadhav leads to any kind of bias.
This is a clear violation of the basic principle that municipal courts cannot arbitrate whether the state has fulfilled its obligations under international law.
It also invites municipal courts to appeal in the future.
Effects of ‘Effective Review and Review’ for India
Effective Review and Reconsideration is a phrase that differs from the prevailing ‘Review’ in domestic contexts.
This includes helping Kulbhushan Jadhav to 'provide counsel / consular' and prepare for his defense.
This means that Pakistan will have to disclose all the allegations against Jadhav and the evidence about which it has so far been completely opaque.
Pakistan will also have to disclose under what circumstances the army obtained a confession from Jadhav.
This means that Jadhav will have the right to defend himself in any forum or court hearing the case.
International Court of Justice
The ICJ is the main judicial organ of the United Nations (UN).
It was established by the United Nations Charter in 1945 and began functioning in 1946 as successor to the Permanent Court of International Justice (PCIJ).
It resolves legal disputes between nations and advises in accordance with international law on legal issues referred to it by authorized UN organs and specialized agencies.
It is located in the Peace Palace in The Hague (Netherlands).
Vienna Convention
The Vienna Convention on Consular Relations is an international treaty that defines the "consular relations" between independent nations.
The consular (not diplomatic) is the representative of a foreign state in the host country, working in the interest of its countrymen.
According to Article 36 of the Vienna Convention, foreign nationals arrested or detained in the host country must be immediately notified of their "right to report to the embassy or consulate".
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FAQs - You will find the answers to all the questions below in this article.
Where is Kulbhushan Jadhav now?
What happened to kulbhushan Jadhav now?
Is kulbhushan Jadhav in Pakistan?
Who is representing Kulbhushan Jadhav?
Is kulbhushan Jadhav is in India?
What is the story of kulbhushan Jadhav?
Who is kulbhushan Yadav and what is his case?
What is consular access?
Who caught kulbhushan?
Who won the case of kulbhushan Yadav?
What is the difference between consular and embassy?
Is Vienna Convention binding?
Has the US ratified the Vienna Convention?
What happens if a country violates a treaty?
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