India had in its submission quoted copiously from the 2004 Avena and Other Mexican Nationals judgement in which the ICJ held the US guilty of violating Vienna Convention on Consular Relations by denying Mexico consular access to its citizens sentenced to death.
ToI has learnt that Pakistan last week voted along with 68 others, including India of course, in favour of a UN resolution urgently calling for “full and immediate” compliance with the ICJ Avena judgement. After 14 years, the US is yet to implement the ICJ order.
The ICJ is the principal judicial organ of the UN. The Avena case relates to 54 Mexicans who were sentenced to death in the US without the US authorities having notified Mexico.
The Jadhav case will again come up for hearing in February, 2019, before ICJ which had last year stayed Pakistan’s death sentence to Jadhav pending its final decision on the legal proceedings. India, official sources said, will bring up Pakistan’s vote in favour of the Avena judgement before ICJ.
“The question for Pakistan is if it wants implementation of the Avena judgement, which is central to India’s position, what stops it from following a similar ICJ ruling in the Jadhav case,” said a government source, adding that Pakistan’s vote also contradicted its position that the Court had no jurisdiction over the Jadhav case.
The ICJ had also backed India’s contention that the Vienna Convention on Consular Relations had been violated by not allowing India consular access to Jadhav. Pakistan though has so far not allowed India consular access arguing in its counter-memorial before ICJ that Vienna Convention is not applicable in the case of Jadhav who, it claimed, was a serving Indian Navy officer and RAW spy.
In his submission, which led to the ICJ staying Jadhav’s death sentence, India’s counsel Harish Salve had recalled the Court’s observation in the Avena case that “violations of the rights of the individual under Article 36 (Vienna Convention) may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual”.
Salve had argued that the Vienna Convention recognized the right of a State to seek redress on behalf of its national in this Court, where the “rights of its national, and concomitantly its own rights under the Vienna Convention are violated by another State”.
Significantly, even Pakistan’s counsel had acknowledged that there were ” parallels of that (Avena)” in the position adopted by India. And the ICJ itself had cited its Avena judgement while ruling in the Jadhav case that the fact that he could apply for clemency, or that no date had been fixed for executing him, were not “per se circumstances that should preclude the Court from indicating provisional measures”. The Avena judgement had also come in handy for the Indian counsel in proving emergency in the case.
Like Pakistan in the Jadhav case, the US too had unsuccessfully contended in the Avena case that there was no emergency for no execution date had been set and that there were rules for grant of clemency.
What’s the Avena case
The Avena case was about 54 Mexicans who were sentenced to death in different US states. Mexico instituted legal proceedings in January 2003 against the US for the same
As Salve had recalled in his submission, Mexico asserted that its citizens were arrested, detained, tried, convicted and sentenced to death in proceedings which did not comply (like with Jadhav in India’s case) with Article 36 of the Vienna Convention.
US raised doubts over ICJ jurisdiction in the case but the Court set these aside and held US guilty of violating Vienna Convention on Consular Relations. It asked the US to reconsider convictions and sentences and allow Mexico consular access