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pakistan
Tuesday Feb 19 2019
By
Web Desk

Kulbhushan Jadhav case: Main points of Pakistan's argument in ICJ

By
Web Desk

Pakistan presented its arguments before the International Court of Justice (ICJ) in the case pertaining to Indian spy Kulbhushan Jadhav.

Here are the main points of Pakistan’s arguments made by Counsel Khawar Qureshi: 

  1. India’s application should be declared inadmissible by reason of India’s conduct in this context manifesting abuse of rights, lack of good faith, illegality, lack of clean hands and misrepresentation;
  2. Further or in the alternative, the conduct of India as aforementioned militates against the grant of any relief in the event;
  3. VVCR is not engaged as India has not established that Commander Jadhav is an Indian national, nor was consular access further refused prior to commencement of these proceedings;
  4. Customary International Law provided for an exception to consular access in the case of an individual reasonably suspected of espionage. This remained unaffected by the VCCR;
  5. Even if the VCCR was engaged, India’s conduct in Sending Commander Jadhav to engage in acts of espionage constitutes violation of Article 5(a) as well as 55 thereof, and subsequently permitting consular access would continue such a violation, in blatant violation of the fundamental precepts of International Law and the object of promoting friendly relations between States;
  6. Further or in the alternative, India and Pakistan entered into a clearly worded agreement on Consular Access (operative since at least 1982 and amended in 2008) which identified the basis upon which consular access would be considered in the case of an individual suspected of espionage. The said Agreement (Article (vi) thereof) must be given legal effect, in accordance with it's plain and ordinary meaning and objective. India and Pakistan have both applied the Agreement for decades and it is perfectly consistent with VCCR, whether because if supplements/amplifies the terms thereof between these two States, or because if elaborates how they deal with espionage cases in the context of the absence of any Customary International Law requirement to provide consular access in such cases;
  7. India’s claim for “at least” acquittal, release of return”/ “annulment of the conviction” is at best misconceived, at worst made in bad faith in the light of the Court’s previous decisions consistently rejecting such a claim;
  8. India has made no other claim for relief and thus its Application should be dismissed;
  9. Further or in the alternative, even if the Court were to hold that the VCCR Article 36 was engaged and a right to consular access was denied, the appropriate remedy is provided for by effective review and reconsideration before Pakistani High Court, in accordance with Article 199 of the Constitution of Pakistan. This remedy has been available to Commander Jadhav and his family at all material times since his conviction. 

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