India v Pakistan

• Jurisdiction: Derecho Internacional
• Judge: Yusuf,Xue,Tomka,Abraham,Bennouna,Cançado Trindade,Donoghue,Gaja,Sebutinde,Bhandari,Robinson,Crawford,Gevorgian,Salam,Iwasawa,Jillani
• Judgment Date: 17 July 2019
• Court: International Court of Justice

Jadha v Case

India

and

Pakistan

(Yusuf, President; Xue, Vice-President; Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam and Iwasawa, Judges; Jillani, Judge ad hoc)

International Court of Justice

Judgment on the Merits

International Court of Justice — Jurisdiction — Whether case concerning interpretation or application of Vienna Convention on Consular Relations, 1963 (“Vienna Convention”) — Proof of Mr Jadhav's identity concerning applicability of Vienna Convention and not jurisdiction — Whether application inadmissible — Whether India committing abuse of process — Abuse of rights as matter for merits — Clean hands doctrine

Consular relations — Whether Vienna Convention on Consular Relations, 1963 applicable in relations between the Parties — Exclusion of persons suspected of espionage from scope of Vienna Convention — Relevance of customary international law on consular access — Whether Agreement on Consular Access of 21 May 2008 displacing obligations under Article 36 of Vienna Convention — Role of Article 73(2) of Vienna Convention — Whether Pakistan breaching Article 36 of Vienna Convention — Failure to inform Mr Jadhav of his consular rights under Vienna Convention — Failure to inform India's consular post of Mr Jadhav's arrest and detention “without delay” — Failure to provide consular access — Remedies — Review and reconsideration — Effectiveness of review and reconsideration — Due process

Treaties — Relationship with customary international law — Vienna Convention on Consular Relations, 1963 — Customary international law regarding consular access — Whether justifying restrictive reading of Vienna Convention — Relationship between treaties — Vienna Convention and bilateral consular agreement

Summary:2The facts: — Mr Jadhav, an Indian national, was detained in Pakistan on 3 March 2016. The circumstances of his arrest and detention were disputed between the Parties. On 10 April 2017, Mr Jadhav was sentenced to death by a Pakistani Court Martial for involvement in espionage, sabotage and terrorism. Under Pakistani law, Mr Jadhav had forty days in which to file an appeal against his death sentence. On 26 April 2017, Mr Jadhav's mother filed an appeal against his death sentence under Section 133(B) of the Pakistan Army Act 1952, and a petition to the Federal Government of Pakistan under Section 131 of the Pakistan Army Act 1952.

On 8 May 2017, India filed with the International Court of Justice (“the Court”) an application instituting proceedings against Pakistan, alleging violations of the Vienna Convention on Consular Relations, 1963 (“the Vienna Convention”) in relation to Pakistan's arrest, detention, trial and sentencing to death of Mr Jadhav. India maintained that the Court possessed jurisdiction under Article 36(1) of the Court's Statute3 and Article I of the Optional Protocol to the Vienna Convention concerning the Compulsory Settlement of Disputes, 1963.4 Together with its application instituting proceedings, India filed a request for the indication of provisional measures under Article 41 of the Court's Statute. The Court indicated provisional measures on 18 May 2017.5 Pakistan raised objections relating to jurisdiction and admissibility which were heard together with the merits.

Pakistan argued that India's Application was inadmissible on three grounds: abuse of process, abuse of rights and India's alleged unlawful conduct (ex turpi causa non oritur actio and ex injuria jus non oritur). India rejected such contentions, arguing that its Application was admissible.

Pakistan contended that the protections under Article 36 of the Vienna Convention did not apply when a State Party to that treaty, on the basis of the evidence available to it, charged a detained person with espionage. Pakistan also maintained that in 1963, when the Vienna Convention was adopted, a

rule of customary international law existed on the basis of which States could have denied rights of consular access to persons charged with espionage. According to Pakistan, such a rule prevailed over Article 36 of the Vienna Convention. India argued that the travaux préparatoires of the Vienna Convention confirmed that Article 36 did not admit of any such exception and contended that, if Pakistan's argument was accepted, any State could deny the protections of the Vienna Convention solely by charging a person with espionage. India denied that the rule of customary international law suggested by Pakistan existed or that, if it did, it could prevail over the provisions of the Vienna Convention.

Pakistan argued that the India-Pakistan Consular Agreement, 2008 (“the 2008 Agreement”)6 governed issues of consular access between the Parties in lieu of the Vienna Convention, and that, based on the 2008 Agreement, Pakistan could determine whether to grant Mr Jadhav consular access “on its merits”. Pakistan contended that the 2008 Agreement was consistent with Article 73 of the Vienna Convention. India replied that the 2008 Agreement was irrelevant to the issue before the Court, that the Parties had never intended to derogate from the Vienna Convention by entering into that agreement, and that Pakistan's interpretation was inconsistent with Article 73 of the Vienna Convention.

According to India, by not informing Mr Jadhav of his consular rights, Pakistan had breached Article 36(1)(b) of the Vienna Convention, as well as its obligation to notify India's consular post of the arrest and detention of Mr Jadhav “without delay”, in so far as it took from 3 to 25 March 2016 for that consular post to be informed. Furthermore, India argued that, by not allowing consular access to Mr Jadhav, Pakistan continued to breach its obligation to provide such access under Article 36 of the Vienna Convention. Pakistan did not suggest that it had informed Mr Jadhav of his consular rights under the Vienna Convention. Concerning whether Pakistan had informed India “without delay” of Mr Jadhav's arrest and detention, Pakistan stated that it was not until 10 June 2016 that India actually identified Mr Jadhav as one of its nationals. Pakistan also argued that the Vienna Convention did not require immediate notification to the relevant consular post, and that such notification had to be made in accordance with the laws of the detaining State.

India argued that it was entitled to restitutio in integrum, which would include the annulment of the Pakistani military court's judgment and sentence against Mr Jadhav, his release and the guarantee that he would have safe passage to India. In the alternative, India requested the Court to order that the conviction and sentence against Mr Jadhav be annulled, and that he be retried before a civilian court of Pakistan in strict conformity with the provisions of the International Covenant on Civil and Political Rights, 1966 (“the ICCPR”). In its arguments, India relied on certain domestic judgments of Pakistan and on certain reports of international organizations. Pakistan argued

that granting the relief requested by India would transform the Court into an appellate court in criminal matters, and that an appropriate remedy would be effective review and reconsideration of the conviction and sentence of Mr Jadhav. Pakistan also noted the availability of clemency procedures.

Held:—(1) (unanimously) The Court had jurisdiction under the Optional Protocol to entertain the case filed by India. The case concerned the arrest, detention, trial and sentencing in Pakistan of Mr Jadhav, an Indian national. Pakistan did not contest that the dispute concerned the interpretation or application of the Vienna Convention. The Court's jurisdiction was limited to the interpretation or application of the Vienna Convention, and did not extend to alleged breaches of international law beyond that treaty (paras. 35–6 and 149(1)).

(2) (by fifteen votes to one, Judge ad hoc Jillani dissenting) India's Application was admissible.

(a) There was no basis to conclude that India had abused its procedural rights by requesting the Court to indicate provisional measures, and no provision of the Optional Protocol invoked by Pakistan contained any precondition to the exercise of jurisdiction by the Court. The Court could decline to exercise a jurisdiction which it possessed on the basis of abuse of process only in exceptional circumstances. No such circumstances were present (paras. 44–9).

(b) Objections stemming from alleged abuse of rights were properly a matter for the merits. By arguing that India had not proved that Mr Jadhav was an Indian national, Pakistan had raised a matter which concerned the merits of the case. Both India and Pakistan had considered Mr Jadhav to be an Indian national in their communications. The argument that India's Application was inadmissible since India had breached international law by reference to Mr Jadhav's alleged espionage activities was also a matter for the merits (paras. 54–7).

(c) An objection based on the allegation that India had not come to the Court with clean hands could not render inadmissible an Application made on the basis of a valid title of jurisdiction. Since Pakistan had not explained how the wrongful acts allegedly committed by India could have prevented Pakistan from complying with its obligations regarding consular assistance for Mr Jadhav, its objection based on the principle ex turpi causa non oritur actio could not be upheld. The principle ex injuria jus non oritur was inapposite (paras. 61-4).

(3) (by fifteen votes to one, Judge ad hoc Jillani dissenting) Pakistan had breached its obligations under Article 36(1)(a) to (c) of the Vienna Convention.

(a) (i) Article 36 of the Vienna Convention was applicable to persons accused of espionage. Neither Article 36 nor any other provision of the treaty referred to espionage. Article 36 did not exclude certain categories of persons from its scope. It would have been contrary to the object and...