Vienna Convention Not For Spies Involved In Terror: Pak To ICJ

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The Hague: Vienna Convention provisions on consular access were not intended for a “spy” involved in terror activities, Pakistan today told the International Court of Justice while accusing India of using the world body as a stage for “political theatre” in the Kulbhushan Jadhav case.

The Court dismissed Pakistan’s notion of jurisdiction in the case, and further observed that Mr. Jadhav should have been given consular access as per Vienna Convention. It further rejected the argument put forth by Pakistan that consular access between India and Pakistan.

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As per Vienna convention’s Article 36, paragraph 1, of the Vienna Convention

COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE 

  1. With a view to facilitating the exercise consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access  to  them.  Nationals  of  the sending  State shall  have the  same  freedom  with  respect to  communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the  consular  post  of  the sending  State  if,  within its  consular  district,  a  national  of  that State  is  arrested or committed to prison or to custody pending trial or is detained in any other manner.

Any communication  addressed  to  the  consular  post  by  the  person  arrested, in  prison,  custody  or detention  shall  also  be forwarded by  the  said  authorities without  delay.  The  said  authorities  shall  inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the  sending  State who  is  in  prison,  custody or  detention,  to  converse  and  correspond  with  him  and  to arrange  for  his  legal  representation.

They  shall  also  have  the  right  to  visit any  national  of  the  sending State  who  is  in prison,  custody  or  detention  in  their  district  in  pursuance of  a  judgment.  Nevertheless,consular  officers  shall  refrain  from  taking  action  on  behalf  of  a  national  who  is  in  prison, custody or detention if he expressly opposes such action.

  1. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the  proviso,  however,  that  the  said laws  and  regulations  must  enable  full effect  to  be  given  to  the purposes for which the rights accorded under this Article are intend

“Pakistan shall take all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision in these proceedings,” the top UN court ruled in a unanimous and binding decision.

It also said that Pakistan should have given India consular access to Kulbhushan Jadhav, rejecting Pakistan’s argument that a person convicted of espionage is not entitled to it.

The 11 judges agreed with India that there was urgency in the case, and noted that Pakistan had given no assurance that Mr Jadhav would not be executed till its verdict.

In an emergency hearing on Monday, New Delhi had called on the UN court to order Islamabad to suspend the execution of the former navy officer held guilty by a Pakistani military court of spying.

Mr Jadhav, 47, was arrested in March 2016 and Pakistani officials claimed he had confessed to spying for Indian intelligence services. He was sentenced to death last month. The president of the UN court, Ronny Abraham, read out the decision.

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