Jadhav Case (India v Pakistan)

• Jurisdiction: Derecho Internacional
• Judge: Abraham,Robinson,Owada,Xue,Cançado Trindade,Bhandari,Crawford,Gevorgian,Donoghue,Sebutinde,Gaja
• Court: International Court of Justice
• Date: 18 May 2017

International Court of Justice Order on Provisional Measures.

(Abraham, President; Owada, Cançado Trindade, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford and Gevorgian, Judges)

Jadhav Case 1

(India

and

Pakistan)

International Court of Justice — Provisional measures of protection — Consular relations — Death penalty — Prima facie jurisdiction — Prima facie existence of a dispute — Prima facie jurisdiction ratione materiae — Vienna Convention on Consular Relations, 1963 (“Vienna Convention”) — Optional Protocol to Vienna Convention concerning Compulsory Settlement of Disputes, 1963 — Whether Agreement on Consular Access of 21 May 2008 excluding application of Vienna Convention — Plausibility — Article 36(1) of Vienna Convention — Right to consular access — Right to be informed of one's consular rights — Irreparable prejudice — Urgency — Whether existence of appeals procedure against death sentence removing real and imminent risk of irreparable prejudice — Link between provisional measures requested and rights sought to be protected

Consular relations — Right of access to consul for person arrested — Indian national sentenced to death by court in Pakistan — Vienna Convention on Consular Relations, 1963 — Article 36(1) — Failure of arresting authorities to provide consular access — Whether Article 36(1) of Vienna Convention applying to persons suspected of espionage or terrorism

Treaties — Interpretation — Vienna Convention on Consular Relations, 1963 — Article 36(1) — Whether Article 36(1) of Vienna Convention applying to persons suspected of espionage or terrorism

Terrorism — Consular relations — Right to consular access — Treaties — Interpretation — Vienna Convention on Consular Relations, 1963 — Article 36(1) — Whether Article 36(1) of Vienna Convention applying to persons suspected of espionage or terrorism

Summary:2The facts:—Mr Jadhav, an Indian national, had been detained in Pakistan since 3 March 2016. The circumstances of his arrest and detention were disputed between the Parties. The Parties agreed that Mr Jadhav was an Indian national. On 10 April 2017, Mr Jadhav was sentenced to death by a Pakistani Court Martial for his involvement in activities of espionage, sabotage and terrorism. Under Pakistani law, Mr Jadhav had a forty-day delay, which would have expired on 19 May 2017, 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 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 Statute and Article I of the Optional Protocol to the Vienna Convention concerning the Compulsory Settlement of Disputes, 1963.3

Together with its application instituting proceedings, India filed a request for the indication of provisional measures under Article 41 of the Court's Statute. India requested the Court to indicate that: (i) Pakistan had to take all measures in order to ensure that Mr Jadhav would not be executed pending the proceedings before the Court; (ii) Pakistan had to report to the Court on the steps taken in the implementation of the Court's order on provisional measures; and (iii) Pakistan had to take all measures in order to ensure that the rights of India would not be prejudiced pending the proceedings before the Court. Given the urgency of the circumstances, India requested that the Court indicate provisional measures without holding a hearing. The Court held public hearings on 15 May 2017.

According to India, a dispute existed between the Parties on the interpretation or application of Article 36(1) of the Vienna Convention.4 Despite

repeated requests from India to communicate with Mr Jadhav, Pakistan's authorities had never allowed India the access to him that India maintained was required under the Vienna Convention. India argued that the Agreement on Consular Access of 21 May 2008 between India and Pakistan (“the 2008 Agreement”) did not limit India's rights under the Vienna Convention. Therefore, the Court had prima facie jurisdiction over the case. Pakistan contended that there was no dispute between the Parties, since Article 36(1) of the Vienna Convention did not apply to persons suspected of espionage or terrorism. According to Pakistan, the 2008 Agreement qualified and limited the rights of the Parties under the Vienna Convention. Accordingly, the Court did not have prima facie jurisdiction to hear the dispute filed by India.

India argued that the rights it asserted were plausible. According to India, the conduct of Pakistan was plausibly in breach of Article 36(1) of the Vienna Convention owing both to Pakistan's denial of India's requests for access to Mr Jadhav, and to the alleged failure of Pakistan to inform Mr Jadhav of his rights under the Vienna Convention upon arrest. Pakistan disputed that India's asserted rights under the Vienna Convention were plausible. First, Article 36(1) of the Vienna Convention did not apply to persons suspected of espionage or terrorism. Secondly, Mr Jadhav's case was governed by the 2008 Agreement.

India submitted that Mr Jadhav's execution could have taken place at any moment, which showed urgency in the circumstances and the existence of a risk of irreparable prejudice to India's rights under the Vienna Convention. According to India, any appeal against Mr Jadhav's death sentence could be concluded quickly, and the chances of the death sentence being reversed were limited. Pakistan contended that there was no urgency in the circumstances since an appeal against Mr Jadhav's death sentence could have taken up to 150 days to decide, which meant that the decision on such an appeal could have been handed down in August 2017.

Held (unanimously):—Pakistan had to take all measures at its disposal to ensure that Mr Jadhav would not be executed pending the proceedings before the Court, and had to inform the Court of the measures taken in the implementation of the order.

(1) The fact that India had requested consular access to Mr Jadhav on multiple occasions, and that Pakistan had stated that such requests would be considered in the light of India's response to Pakistan's requests for assistance in the investigation against Mr Jadhav, was sufficient to show the prima facie existence of a dispute concerning the interpretation or application of the Vienna Convention. The acts alleged by India were capable of falling within the scope of Article 36(1) of the Vienna Convention, and therefore the Court had prima facie jurisdiction ratione materiae. The Vienna Convention did not contain any express provision excluding its application to persons suspected of espionage or terrorism. The 2008 Agreement similarly did not contain any express exclusion of the applicability of the Vienna Convention. Prima facie, therefore, the Court had jurisdiction (paras. 29–34).

(2) The right to consular notification and access between a State and its nationals was recognized under Article 36(1) of the Vienna Convention. The arguments concerning the inapplicability of Article 36(1) of the Vienna Convention to persons suspected of espionage or terrorism were not sufficient to show that India's asserted rights were not plausible. Pakistan did not challenge that Mr Jadhav had been arrested, detained, tried and sentenced to death without India being given consular access and without his being informed of his consular rights. Therefore, the rights asserted by India were plausible. The provisional measures requested by India were linked to the rights asserted on the merits (paras. 43–8).

(3) The fact that Mr Jadhav had received a death sentence which could be carried out at any moment was sufficient to show the existence of a risk of irreparable prejudice to India's rights. Pakistan had given no assurance that Mr Jadhav would not be executed before the Court rendered its final decision on the merits. The fact that Mr Jadhav could appeal his death sentence and also petition for clemency did not preclude the indication of provisional measures by the Court (paras. 53–5).

Separate Opinion of Judge Cançado Trindade: (1) In this case, both States and individuals were holders of rights under international law. In contemporary international law, the rights of States and the rights of individuals could not be dissociated from one another. Rights of information on consular assistance could not be appreciated exclusively in the framework of inter-State relations. The Court had already recognized the importance of rights of consular assistance as being a combination of rights of States and rights of individuals in its earlier jurisprudence (paras. 6–14).

(2) In the present case, the right to consular assistance was inextricably linked to the right to life, which was not only a “plausible” right, but a “fundamental” one. Provisional measures were endowed with a juridical autonomy of their own. The present case was yet another example of the ongoing process of humanization of international law (paras. 19–33).

Declaration of Judge Bhandari: (1) The Court was right to conclude that the 2008 Agreement was not sufficient to exclude prima facie jurisdiction. The jurisdictional basis of this case was the same as that in LaGrand5 thus the Court correctly made the same decision on prima facie jurisdiction. The prima facie existence of a dispute between the Parties was demonstrated by the thirteen notes verbales sent by India to Pakistan concerning consular access to Mr Jadhav. The Court was also correct in stating that the...