ICJ Jadhav Case (India v. Pakistan) Full version

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INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org Twitter Account: @CIJ_ICJ
Press Release
Unofficial
No. 2017/22
18 May 2017
Jadhav Case (India v. Pakistan)
Provisional Measures
The Court indicates to the Islamic Republic of Pakistan that it must take “all
measures at its disposal” to prevent the execution of an Indian national,
Mr. Kulbhushan Sudhir Jadhav, pending final judgment of the Court
THE HAGUE, 18 May 2017. The International Court of Justice (ICJ), principal judicial
organ of the United Nations, today indicated to the Islamic Republic of Pakistan that it must “take
all measures at its disposal” to ensure that Mr. Kulbhushan Sudhir Jadhav, of Indian nationality, is
not executed pending a final judgment of the Court in the Jadhav Case (India v. Pakistan).
In its Order indicating provisional measures, which was adopted unanimously, the Court also
stated that the Government of Pakistan shall inform it of all measures taken in implementation of
that Order. It further decided to remain seised of the matters which form the subject of the Order until
it has rendered its final judgment.
History of the proceedings
India filed its Request for the indication of provisional measures on 8 May 2017, the same
day that it initiated proceedings against Pakistan in a dispute concerning alleged violations of
Article 36 of the Vienna Convention on Consular Relations of 24 April 1963 with respect to an
Indian national, Mr. Jadhav, sentenced to death in Pakistan.
Reasoning of the Court
The Court begins by considering whether it has jurisdiction prima facie to hear the case. It
recalls that India seeks to ground its jurisdiction in Article I of the Optional Protocol to the Vienna
Convention, which provides that the Court has jurisdiction over “[d]isputes arising out of the
interpretation or application of the [Vienna] Convention”. In this regard, the Court notes that the
Parties do indeed appear to have differed, and still differ today, on the question of India’s consular
assistance to Mr. Jadhav under the Vienna Convention. It further notes that the acts alleged by
India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard
to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow communication and
provide access to him, appear to be capable of falling within the scope of the Convention. In the
view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of
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the Optional Protocol. The Court further observes that the existence of a 2008 bilateral Agreement
between the Parties on consular relations does not change its conclusion on jurisdiction.
The Court then turns to the question whether the rights alleged by India are at least plausible.
It observes that the rights to consular notification and access between a State and its nationals, as
well as the obligations of the detaining State to inform the person concerned without delay of his
rights with regard to consular assistance and to allow their exercise, are recognized in Article 36,
paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In
the view of the Court, therefore, it appears that the rights alleged by India are plausible.
The Court then focuses on the issue of the link between the rights claimed and the
provisional measures requested. It considers that the measures requested are aimed at ensuring that
the rights contained in Article 36, paragraph 1, of the Vienna Convention, are preserved. Therefore,
a link exists between the rights claimed by India and the provisional measures being sought.
The Court then examines whether there is a risk of irreparable prejudice and urgency. It
considers that the mere fact that Mr. Jadhav is under a death sentence and might therefore be
executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights
claimed by India. The Court further observes that Pakistan has indicated that any execution of
Mr. Jadhav would probably not take place before the month of August 2017. This means that there
is a risk that an execution could take place at any moment thereafter, before the Court has given its
final decision in the case. The Court also notes that Pakistan has given no assurance that
Mr. Jadhav will not be executed before the Court has rendered its final decision. In those
circumstances, the Court is satisfied that there is urgency in the present case.
The Court concludes by indicating the following measures:
Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed
pending the final decision in these proceedings and shall inform the Court of all the measures taken
in implementation of the present Order.
The Court also decides that, until it has given its final decision, it shall remain seised of the
matters which form the subject-matter of this Order.
Composition of the Court
The Court was composed as follows: President Abraham; Judges Owada,
Cançado Trindade, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian;
Registrar Couvreur.
Judge Cançado Trindade appends a separate opinion to the Order of the Court;
Judge Bhandari appends a declaration to the Order of the Court.
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Note: The Court’s press releases do not constitute official documents.
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The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.
It was established by the United Nations Charter in June 1945 and began its activities in
April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six
principal organs of the United Nations, it is the only one not located in New York. The Court has a
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twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by
States (its judgments have binding force and are without appeal for the parties concerned); and,
second, to give advisory opinions on legal questions referred to it by duly authorized United
Nations organs and agencies of the system. The Court is composed of 15 judges elected for a
nine-year term by the General Assembly and the Security Council of the United Nations.
Independent of the United Nations Secretariat, it is assisted by a Registry, its own international
secretariat, whose activities are both judicial and diplomatic, as well as administrative. The official
languages of the Court are French and English. Also known as the “World Court”, it is the only
court of a universal character with general jurisdiction.
The ICJ, a court open only to States for contentious proceedings, and to certain organs and
institutions of the United Nations system for advisory proceedings, should not be confused with the
other  mostly criminal  judicial institutions based in The Hague and adjacent areas, such as the
International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc court created by the
Security Council), the International Criminal Court (ICC, the first permanent international criminal
court, established by treaty, which does not belong to the United Nations system), the Special
Tribunal for Lebanon (STL, an international judicial body with an independent legal personality,
established by the United Nations Security Council upon the request of the Lebanese Government
and composed of Lebanese and international judges), or the Permanent Court of Arbitration (PCA,
an independent institution which assists in the establishment of arbitral tribunals and facilitates
their work, in accordance with the Hague Convention of 1899).
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Information Department:
Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Mr. Boris Heim and Ms Joanne Moore, Information Officers (+31 (0)70 302 2337)
Mr. Avo Sevag Garabet, Associate Information Officer (+31 (0)70 302 2394)
Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396)
Annex to Press Release No. 2017/22
Concurring Opinion of Judge Cançado Trindade
1. In his Concurring Opinion, composed of seven parts, Judge Cançado Trindade begins by
pointing out that, having concurred with his vote to the adoption of the present Order indicating
Provisional Measures of Protection, there are certain aspects pertaining to the matter dealt with
therein to which he attaches great importance. He feels thus obliged to append his
Concurring Opinion thereto, so as to leave on the records the foundations of his own personal
position thereon. He purports to address the selected points bringing them into the realm of
juridical epistemology.
2. The points he proceeds to examine (part I) are: (a) rights of States and of individuals as
subjects of international law; (b) presence of rights of States and of individuals together; (c) the
right to information on consular assistance in the framework of the guarantees of the due process of
law; (d) the fundamental (rather than “plausible”) human right to be protected: provisional
measures as jurisdictional guarantees of a preventive character; (e) the autonomous legal regime of
provisional measures of protection; and (f) the humanization of international law as manifested in
the domain of consular law.
3. The present Jadhav case concerns alleged violations of the 1963 Vienna Convention on
Consular Relations with regard to the detention and trial of an Indian national (Mr. K.S. Jadhav),
sentenced to death (on 10.04.2017) by a Court Martial in Pakistan. Keeping in mind the distinct
lines of arguments advanced by the two contending parties (India and Pakistan) before the ICJ, he
observes at first that the present case “brings to the fore rights of States and of individuals
emanating directly from international law” under Article 36(1) of the 1963 Vienna Convention, as
related to the U.N. Covenant on Civil and Political Rights (paras. 5-6).
4. Judge Cançado Trindade stresses that, in “contemporary international law, rights of States
and of individuals are indeed to be considered altogether, they cannot be dissociated from each
other” (para. 7). He recalls that, before the turn of the century, the Inter-American Court of
Human Rights [IACtHR] delivered its pioneering Advisory Opinion no
16 on the Right to
Information on Consular Assistance in the Framework of the Guarantees of the Due Process of
Law (of 01.10.1999), advancing the proper hermeneutics of Article 36 (1) (b) of the
1963 Vienna Convention, reflecting the impact thereon of the corpus juris of the International Law
of Human Rights (ILHR).
5. On that occasion, – he further recalls, -he appended a Concurring Opinion appended to that
Advisory Opinion no
16, wherein he examined that impact, putting an end to the “old monopoly of
the State of the condition of being subject of rights”, and demystifying the constraints of an
outdated voluntarist positivism (para. 8). He then warned that those constraints “had wrongly been
indifferent to other areas of human knowledge, as well as to the existential time of human beings”,
with its “obsession with the autonomy of the `will´ of the States”, and he added:
“It so happens that the very emergence and consolidation of the corpus juris of
the ILHR are due to the reaction of the universal juridical conscience to the recurrent
abuses committed against human beings, often warranted by positive law: with that,
the Law came to the encounter of human beings, the ultimate titulaires of their
inherent rights protected by its norms (…).
In the framework of this new corpus juris, one cannot remain indifferent to the
contribution of other areas of human knowledge, nor to the existential time of human
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beings. (…) [T]he right to information on consular assistance (…), “cannot nowadays
be appreciated in the framework of exclusively inter-State relations, as contemporary
legal science has come to admit that the contents and effectiveness of juridical norms
accompany the evolution of time, not being independent of this latter” (…).
Thus, (…) Article 36 (1) (b) of the aforementioned 1963 Vienna Convention, in
spite of having preceded in time the provisions of the two U.N. Covenants on
Human Rights (of 1966), could no longer be dissociated from the international norms
of protection of human rights concerning the guarantees of the due process of law and
their evolutive interpretation” (paras. 9-11).
6. Judge Cançado Trindade holds (part III) that “States and individuals are subjects of
contemporary international law; the crystallization of the subjective individual right to information
on consular assistance bears witness of such evolution” (para. 12). The ICJ itself took into account
the ILHR in the case of Hostages in Tehran (Provisional Measures, Order of 15.12.1979)
(paras. 12-13), and, much later, the “presence of rights of States and of individuals together” was
acknowledged in express terms by ICJ in the case of Avena and Other Mexican Nationals
(Judgment of 31.03.2004 para. 40), where it stated that “violations of the rights of the individual
under Article 36 [of the 1963 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” (para. 14).
7. The present Jadhav case affords, in his view, yet another occasion to keep in mind the
formation of an opinio juris communis to this effect (para. 16), corresponding to a new ethos of our
times (para. 18). It has thus become indispensable to link, for the purpose of protection, — he
ponders, — “the right to information on consular assistance with the guarantees of the due process
of law” set forth in the instruments of the ILHR, bearing witness of the process of humanization of
international law, as manifested in particular also in the domain of consular law nowadays
(part IV).
8. Provisional measures of protection — he proceeds — have become true jurisdictional
guarantees of a preventive character (paras. 7 and 22), safeguarding, to begin with, the fundamental
and non-derogable (rather than “plausible”) right to life (in addition to the right to liberty and
security of person, and the right to a fair trial) (part V). Judge Cançado Trindade draws attention to
the importance of compliance with provisional measures of protection, as illustrated by the
IACtHR’s Orders in the case (of so-called “mandatory” death penalty) of James and Others versus
Trinidad and Tobago (1998-2000), where the condemned individuals were not executed and the
condemnatory sentences of the national tribunals were commuted (paras. 20-21).
9. Judge Cançado Trindade next considers the “autonomous legal regime of provisional
measures of protection (part VI), in its component elements, namely: “the rights to be protected, the
obligations proper to provisional measures of protection; the prompt determination of responsibility
(in case of non-compliance), with its legal consequences; the presence of the victim (or
potential victim, already at this stage), and the duty of reparations for damages” (para. 24). He
proceeds that, even though the proceedings in contentious case before the ICJ keep on being strictly
inter-State ones (by “attachment to an outdated dogma of the past”), this in no way impedes that the
beneficiaries of protection in given circumstances are the human beings themselves, individually or
in groups, – as he pointed out also in his Dissenting Opinion in the case concerning Questions
Relating to the Obligation to Prosecute or to Extradite (Order of 28.05.2009), and in his
Separate Opinion in the case of Application of the International Convention for the Suppression of
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the Financing of Terrorism [ICSFT] and of the International Convention on the Elimination of All
Forms of Racial Discrimination [CERD] (Order of 19.04.2017) (para. 25).
10. Judge Cançado Trindade comes to the last part of his Concurring Opinion addressing the
ongoing historical process of the humanization of international law (part VII), manifesting itself, as
in the present Jadhav case, in particular also in the domain of consular law. He recalls that, already
in his earlier Concurring Opinion in the IACtHR’s Advisory Opinion no
18 on the Juridical
Condition and Rights of Undocumented Migrants (of 17.09.2003), he examined this process
singling out the relevance, in its evolution, of fundamental principles, laying on the foundations
themselves of the law of nations (le droit des gens, as foreseen by the “founding fathers” of the
discipline), as well as of the emergence of jus cogens and the corresponding obligations erga omnes
of protection, in their horizontal and vertical dimensions (para. 28). Those principles, – he added
therein,
“form the substratum of the legal order itself, revealing the right to the Law (droit au
Droit), of which are titulaires all human beings, irrespective of their statute of
citizenship or any other circumstance (…). Without such principles, – which are truly
prima principia, – wherefrom norms and rules emanate and wherein they find their
meaning, the ‘legal order’ simply is not accomplished, and ceases to exist as such”
(para. 29).
11. In his view, the “great legacy of the juridical thinking of the second half of the
XXth century (…) has been, by means of the emergence and evolution of the ILHR, the rescue of
the human being as subject” of the law of nations, endowed with international legal personality and
capacity (para. 30). This was due — he proceeds — to “the awakening of the universal juridical
conscience”, — the “recta ratio inherent to humanity, — as the ultimate material source of the law
of nations, standing well above the ‘will’ of individual States” (para. 30). And
Judge Cançado Trindade concludes:
“That outlook has decisively contributed to the formation, inter alia and in
particular, of an opinio juris communis as to the right of individuals, under
Article 36 (1) (b) of the 1963 Vienna Convention, reflecting the ongoing process of
humanization of international law, encompassing relevant aspects of consular
relations. Always faithful to this humanist universal outlook, I deem it fit to advance
it, once again, in the present Concurring Opinion in the Order that the ICJ has just
adopted today, 15.05.2017, in the Jadhav Case.
The ICJ has, after all, shown awareness that the provisional measures of
protection rightly indicated by it in the present Order (resolutory point I of the
dispositif) are aimed at preserving the rights of both the State and the individual
concerned (…) under Article 36 (1) the 1963 Vienna Convention. The jurisprudential
construction to this effect, thus, to my satisfaction, keeps on moving forward.
Contemporary international tribunals have a key role to play in their common mission
of realization of justice” (paras. 32-33).
Declaration of Judge Bhandari
Judge Bhandari agrees with the decision of the Court to indicate provisional measures.
However, he wishes to place on record his views concerning the requirements for indicating
provisional measures in more detail. This case gives rise to questions pertaining to the basic
violation of human rights through the denial of consular access during the pendency of court
proceedings in Pakistan, which culminated with Mr. Kulbhushan Sudhir Jadhav’s death sentence.
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In his declaration, Judge Bhandari starts by outlining the facts pertaining to India’s
Application instituting proceedings as well as to India’s Request for provisional measures.
Subsequently, Judge Bhandari discusses the four requirements for the indication of provisional
measures: (i) prima facie jurisdiction; (ii) plausibility; (iii) real and imminent risk of irreparable
prejudice; and (iv) the link between the rights claimed on the merits and the provisional measures
requested. Each requirement is examined in turn.
Concerning the facts of the case, Judge Bhandari underscores the uncertainty surrounding the
circumstances in which Mr. Jadhav was arrested. He makes clear that the Parties do not agree as to
where Mr. Jadhav was arrested, whether within or outside Pakistan. Judge Bhandari stresses the
diplomatic intercourse between the Parties relating to India’s consular rights with respect to
Mr. Jadhav. Despite thirteen Notes Verbales sent by India to Pakistan, Pakistan has not
communicated to India either the charges against Mr. Jadhav, or the documents of the proceedings
against him. He also outlines the court proceedings in order for Mr. Jadhav to obtain a revision of
his death sentence or to be granted clemency. It is currently not clear whether any of these domestic
remedies have been triggered by Mr. Jadhav himself, while it is known that his mother has filed, in
an act of desperation, both for appeal under Section 133 (B) of the Pakistan Army Act 1952, and
for clemency under Section 131 of the 1952 Act. Moreover, Judge Bhandari emphasizes that
Pakistan’s denial of consular access has determined a situation in which India has no direct
knowledge of the charges against Mr. Jadhav, as well as of the proceedings against him in the
Pakistani military court.
Before addressing the requirements for indicating provisional measures, Judge Bhandari
analyses the role of the 2008 India-Pakistan Agreement on Consular Access. He agrees with the
Court that there is nothing which prima facie suggests that the Parties, by concluding the
2008 Agreement, have limited or set aside their reciprocal obligations under the Vienna
Convention on Consular Relations. On the contrary, the 2008 Agreement amplifies, confirms and
extends the Parties’ reciprocal obligations relating to consular assistance, for which the Vienna
Convention is a framework. Therefore, the 2008 Agreement does not exclude the Court’s
jurisdiction in the present case. Moreover, Judge Bhandari stresses that India did not rely on the
2008 Agreement, but only claimed the violation of the Vienna Convention. Specifically, India did
not rely on the 2008 Agreement because: (i) Article 102, paragraph 2, of the United Nations
Charter precludes the invocation before United Nations organs of treaties not registered with the
United Nations, such as the 2008 Agreement: (ii) Article 73 of the Vienna Convention does not
preclude the conclusion of treaties confirming, supplementing, amplifying or extending the
provisions of the Vienna Convention itself; and (iii) Article 73 of the Vienna Convention does not
allow the dilution of its provisions by means of the conclusion of subsequent consular treaties.
On prima facie jurisdiction, Judge Bhandari recalls that India based the Court’s jurisdiction
on Article 36, paragraph 1, of the Statute, read in conjunction with Article I of the Optional
Protocol to the Vienna Convention. Neither India nor Pakistan made any reservation to that
Optional Protocol. He draws a parallel with LaGrand, in which the Court found to have prima facie
jurisdiction based on the same legal provisions, to which both Germany and the United States of
America had not made any reservations. Judge Bhandari states that the Court was right in following
the previous jurisprudence in Equatorial Guinea v. France, in which it was held that, in order to
find it has prima facie jurisdiction, the Court must satisfy itself that there prima facie exists a
dispute between the Parties and that such a dispute prima facie falls within the scope of the treaty
invoked. According to Judge Bhandari, the prima facie existence of a dispute is confirmed by the
exchange between the Parties of Notes Verbales on the subject of consular access to Mr. Jadhav.
Moreover, such a dispute falls within the scope of the Vienna Convention ratione materiae since
the facts alleged by India all pertain to its consular rights guaranteed under the Vienna Convention,
yet allegedly denied by Pakistan.
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With reference to plausibility, Judge Bhandari recalls the Court’s test as recently restated in
Ukraine v. Russia. According to Judge Bhandari, the rights claimed by India on the merits are
plausible because they concern consular access to a person who is indisputably an Indian national,
who has been arrested, tried and convicted in a foreign country. Therefore, it is plausible that India
holds the rights it is claiming in the circumstances of the case, namely with respect to Mr. Jadhav.
He recalls that the International Law Commission’s commentary to the Draft Articles that became
the Vienna Convention clearly stated that the right to consular assistance as provided for in
Article 36, paragraph 1, of the Vienna Convention applies also in cases where a national court
decision has become final. In the present case, it is possible that appeals against Mr. Jadhav’s death
sentence are still ongoing, and therefore rights to consular access plausibly apply.
Concerning real and imminent risk of irreparable prejudice, Judge Bhandari analysed the
similarities between the present case and the previous death penalty cases: Breard, LaGrand and
Avena. In all such cases, which involved facts comparable to the facts of Mr. Jadhav’s case, the
Court found that the execution of the foreign national would have irreparably prejudiced the rights
of consular access claimed by the sending State on the merits. Moreover, Judge Bhandari clarified
that it does not matter, for making a finding of urgency, how long a period of time is likely to
elapse before Mr. Jadhav is executed. So long as there is a real risk that Mr. Jadhav would be
executed before the final disposal of the case by the Court, there is urgency in the circumstances.
On the link between the provisional measures requested and the rights claimed on the merits,
Judge Bhandari again highlighted the continuity between the previous death penalty cases and the
present case. In all such cases, the Court always indicated that the respondent State should not
execute the person whose consular rights were at stake in the proceedings before the Court, and
that the respondent State should inform the Court as to the measures taken in the implementation of
the order. Therefore, Judge Bhandari agreed that the same provisional measures should be
indicated in the present case.
Judge Bhandari concludes that a clear case has been made out for the indication of
provisional measures under Article 41 of the Statute. Consequently, during the pendency of the
proceedings before the Court, Mr. Kulbhushan Sudhir Jadhav shall not be executed. In addition to
issues of consular relations, this is a case in which it regrettably appears, on a preliminary
examination of the facts, that the basic human rights of Mr. Jadhav have been violated by not
allowing India to have consular access to him after his arrest and during the pendency of the
criminal proceedings against him in Pakistan.

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