New Delhi: India last week voted against a resolution in the United Nations’ human rights body that called for foreign nationals facing the death penalty to have consular access as per international law – the main grounds on which New Delhi has taken Islamabad to the International Court of Justice over the death penalty against Kulbhushan Jadhav.
On September 29, the United Nations Human Rights Council (UNHRC) passed a resolution on the “question of the death penalty” with 27 votes in favour, 13 against and seven abstentions. Besides India, the other negative votes were cast by Bangladesh, Botswana, Burundi, China, Egypt, Ethiopia, Iraq, Japan, Qatar, Saudi Arabia, UAE and the US.
Resolution A/HRC/36/L.6 called upon the UN secretary general to dedicate the 2019 supplement to his quinquennial report on capital punishment to the consequences arising at various stages of the imposition and application of the death penalty on the enjoyment of the human rights of persons facing the death penalty.
It called on all states to protect the rights of persons facing the death penalty and other affected persons, by complying with their international obligations, including the rights to equality and non-discrimination.
More relevant to India was operative paragraph 7, which has a direct bearing on the case of Jadhav, the Indian national sentenced by a Pakistani military court on allegations of espionage.
“7. Calls upon states to comply with their obligations under Article 36 of the Vienna Convention on Consular Relations (VCCR), and to inform foreign nationals of their right to contact the relevant consular post.”
This was also echoed in the 22nd preambular paragraph:
“Emphasising that access to consular assistance for foreign nationals, provided for in the Vienna Convention on Consular Relations, is an important aspect of the protection of those facing the death penalty abroad.”
In May, India had dragged Pakistan to the International Court for Justice (ICJ), accusing Islamabad of “egregious violation of the rights of consular access guaranteed by Article 36, paragraph 1, of the Vienna Convention”.
India had claimed that it was not informed of Jadhav’s detention until three weeks after his arrest and had been denied consular access despite repeated requests. India had also claimed jurisdiction of the ICJ on grounds of violation of the VCCR. Pakistan had, however, asserted that consular relations were governed by a bilateral pact and therefore the ICJ had no jurisdiction.
In provisional measures, the ICJ upheld India’s argument for jurisdiction and asked Pakistan to take all measures to prevent Jadhav’s execution, till the final judgement is released.
India recently submitted its written pleadings to the ICJ, which again sought to prove that the 1963 convention was violated by Pakistan.
The UNHRC resolution, which was introduced by the West African state of Benin, had also urged countries to ensure that the death penalty is “not imposed as a sanction for specific forms of conduct such as apostasy, blasphemy, adultery and consensual same-sex relations”.
Four amendments were brought to the resolution by Russia and two were brought by Egypt. The amendments asserted that the use of the death penalty could lead to violations only in “some cases”, condemned the use of experiential medical supplies for execution and urged countries to consider abolition of the deth penalty after a national debate. All of them were defeated, but India voted ‘yes’ for each amendment.
India did not table any explanation of its vote in the council. However, New Delhi’s view on the role of UN bodies on the death penalty was clear from its statement at the high-level panel on the matter earlier this year.
On March 1, Virander Paul, India’s deputy permanent representative to the UN in Geneva, said, “We believe that any simplistic approach to characterise death penalty as a human rights issue in the context of the right to life of the convicted prisoner is deeply flawed and controversial”.
Speaking at the high level panel for the death penalty, he claimed that there was no international consensus for, or against the death penalty, with the second Optional Protocol to the International Covenant on Civil and Political Rights, ratified by only 84 countries.
“This has also been confirmed repeatedly by the votes on several UNGA resolutions relating to moratorium on the use of death penalty, most recently in the 71st session of the General Assembly,” said Paul.
In December 2016, the UN General Assembly adopted a resolution titled, ‘Moratorium on the use of the death penalty’ by vote of 117 in favour, to 40 against, with 31 abstentions. India had voted against the resolution.
“Accordingly, the question of whether to retain or abolish death penalty and the types of crimes for which the death penalty is applied should remain the inalienable right and exclusive decision of the sovereign state,” said Paul.
He claimed that the death penalty in India is exercised in the ‘rarest of rare’ cases, with the Indian legal system providing for procedural safeguards against any reckless implementation.
India has consistently voted against resolutions on human rights violations due to the imposition of death penalties at UN bodies over the years and defended its record during the Universal Periodic Review process, based largely on the principle of sovereignty.
However, the resolution brought this year has significant differences from its previous iterations. This year, for the first time, the resolution talked about the disproportionate sentencing of racial and ethnic minorities, condemned the use of death penalty in blasphemy and adultery and upheld the rights of the foreign nationals under the Vienna Convention. India’s vote, however, remained unchanged.