Khudayar Mohla –
Adherence to domestic law demands more in the age of globalization where State is a subject to international law so every subject of a State is supposed to obey global law. May it be a reason that Prime Minister Imran Khan while reacting to recent verdict of the world court over Indian spy Kulbhushan Jadhav through a tweet, “Appreciate ICJ’s decision not to acquit, release & return Commander Kulbhushan Jadhav to India. He is guilty of crimes against the people of Pakistan. Pakistan shall proceed further as per law”.
It is time to realize that International Court of Justice has developed jurisprudence to strengthen the international law which principally regulates relations of States in order to ensure inherent dignity of the human person. Another aspect could not be overlooked that global efforts to promote rights including civil and political, economic, social and cultural rights is also responsibility of State who are member of the United Nations at this juncture.
Surprisingly, Indian Prime Minister Narendra Modi reacted through tweet, “We welcome today’s verdict in the @CIJ_ICJ. Truth and justice have prevailed. Congratulations to the ICJ for a verdict based on extensive study of facts. I am sure Kulbhushan Jadhav will get justice. Our Government will always work for the safety and welfare of every Indian”.
But pronouncing its verdict in the matter the ICJ has not only asked Pakistan to implement ‘Vienna Convention on Consular Relations 1963’ provisions in true letter and spirit but also turned down Indian request to acquit its national Jadhav without declaring his conduct of carnage in Pakistan because the world court is not a trial court.
While relaying upon the Vienna Convention 1963 to announce the verdict, the world court pronounced a number of remedies for Pakistan and India in the matter without appeasing anybody.The Court asked Pakistan to inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraph 1 (a) and (c).
Granting another remedy in the case, the Court’s verdict said that it considers the appropriate remedy in this case to be effective review and reconsideration of the conviction and sentence of Mr. Jadhav. It added that in order to be effective, this process must ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined.
The Court also took full cognizance of representations made by Pakistan saying that during the oral proceedings, the Agent of Pakistan declared that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”.
The Court considers that violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process. The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways.
The choice of means is left to Pakistan. Nevertheless, freedom in the choice of means is not without qualification. The obligation to provide effective review and reconsideration is an obligation of result which must be performed unconditionally. Consequently, Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation. The Court finally considers that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav.
Take of international law expert Ahmer Bilal Soofi whose insight must I appreciate that Kulbhushan Jadhav matter should not be taken as a case but a larger episode of intervention in internal matter of neighboring States, and that is how it should be viewed, assessed and projected.
Adherence to international law would be meaningful only in presence of political will.
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