"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."
It further decided that, "until the Court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order".
"(1) A relief by way of immediate suspension of the sentence of death awarded to the accused.
(2) A relief by way of restitution in integrum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36 paragraph 1 (b), and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention; and
(3) Restraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan.
(4) If Pakistan is unable to annul the decision, then this Court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian national forthwith."
On behalf of the Government of India,
in the Memorial:
"For these reasons, the submissions of the Government of India, respectfully request this Court to adjudge and declare that Pakistan acted in egregious breach of Article 36 of the Vienna Convention on Consular Relations, in:
(i) Failing to inform India, without delay, of the arrest and/or detention of Jadhav,
(ii) Failing to inform Jadhav of his rights under Article 36 of the Vienna Convention on Consular Relations,
(iii) Declining access to Jadhav by consular officers of India, contrary to their right to visit Jadhav, while under custody, detention or in prison, and to converse and correspond with him, or to arrange for his legal representation.
And that pursuant to the foregoing,
(i) Declare that the sentence of the Military Court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36 paragraph 1 (b), and in defiance of elementary human rights of Jadhav, which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention;
(ii) Declare that India is entitled to restitutio in integrum ;
(iii) Restrain Pakistan from giving effect to the sentence or conviction in any manner, and direct it to release the Indian National, Jadhav, forthwith, and to direct Pakistan to facilitate his safe passage to India;
(iv) In the alternative, and if this Court were to find that Jadhav is not to be released, then restrain Pakistan from giving effect to the sentence awarded by the Military Court, and direct it to take steps to annul the decision of the military court, as may be available to it under the laws in force in Pakistan, and direct a trial under the ordinary law before civilian courts, after excluding his confession that was recorded without affording consular access, in strict conformity with the provisions of the ICCPR, with full consular access and with a right to India to arrange for his legal representation."
These submissions were confirmed in the Reply.
On behalf of the Government of Pakistan,
in the Counter-Memorial:
"For the reasons set out in this Counter-Memorial, Pakistan requests the Court to adjudge and declare that the claims of India, as advanced through its Application and its Memorial, are rejected."
in the Rejoinder:
"For the reasons set out in this Rejoinder, as well as those set out in the Counter-Memorial, Pakistan requests the Court to adjudge and declare that the claims of India, as advanced through its Application, its Memorial and its Reply, are rejected."
On behalf of the Government of India,
"(1) The Government of India requests this Court to adjudge and declare that, Pakistan acted in egregious breach of Article 36 of the Vienna Convention on Consular Relations, 1963 (Vienna Convention) in:
(i) Failing to inform India, without delay, of the detention of Jadhav;
(ii) Failing to inform Jadhav of his rights under Article 36 of the Vienna Convention on Consular Relations, 1963;
(iii) Declining access to Jadhav by consular officers of India, contrary to their right to visit Jadhav, while under custody, detention or in prison, and to converse and correspond with him, or to arrange for his legal representation.
And that pursuant to the foregoing,
(2) Declare that:
(a) the sentence by Pakistan's Military Court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36 paragraph 1 (b), and in defiance of elementary human rights of Jadhav, which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights (ICCPR), is violative of international law and the provisions of the Vienna Convention;
(b) India is entitled to restitutio in integrum ;
(3) Annul the decision of the Military Court and restrain Pakistan from giving effect to the sentence or conviction in any manner; and
(4) Direct it to release the Indian National, Jadhav, forthwith, and to facilitate his safe passage to India;
(5) In the alternative, and if this Court were to find that Jadhav is not to be released, then
(i) annul the decision of the Military Court and restrain Pakistan from giving effect to the sentence awarded by the Military Court,
or in the further alternative,
(ii) direct it to take steps to annul the decision of the military court, as may be available to it under the laws in force in Pakistan,
and in either event,
(iii) direct a trial under the ordinary law before civilian courts, after excluding his confession that was recorded without affording consular access, and in strict conformity with the provisions of the ICCPR, with full consular access and with a right to India to arrange for his legal representation."
On behalf of the Government of Pakistan,
"The Islamic Republic of Pakistan respectfully requests the Court, for the reasons set out in Pakistan's written pleadings and in its oral submissions made in the course of these hearings, to declare India's claim inadmissible. Further or in the alternative, the Islamic Republic of Pakistan respectfully requests the Court to dismiss India's claim in its entirety."
"Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol."
This conclusion does not preclude the Court from taking into account other obligations under international law in so far as they are relevant to the interpretation of the Vienna Convention (cf. ibid., pp. 45-46, para. 85).
"The parties may agree, within a period of two months after one party has notified its opinion to the other that a dispute exists, to resort not to the International Court of Justice but to an arbitral tribunal. After the expiry of the said period, either party may bring the dispute before the Court by an application."
According to Article III:
"1. Within the same period of two months, the parties may agree to adopt a conciliation procedure before resorting to the International Court of Justice.
2. The conciliation commission shall make its recommendations within five months after its appointment. If its recommendations are not accepted by the parties to the dispute within two months after they have been delivered, either party may bring the dispute before the Court by an application."
The Court interpreted these provisions in the case concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), where it ruled that Articles II and III of the Optional Protocols to the Vienna Convention on Diplomatic Relations and to the Vienna Convention on Consular Relations do not lay down a "precondition of the applicability of the precise and categorical provision contained in Article I establishing the compulsory jurisdiction of the Court in respect of disputes arising out of the interpretation or application of the Vienna Convention in question. Articles II and III provide only that, as a substitute for recourse to the Court, the parties may agree upon resort either to arbitration or to conciliation." (Judgment, I.C.J. Reports 1980, pp. 25-26, para. 48; emphasis in the original.)
"generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one Party cannot avail himself of the fact that the other has not fulfilled some obligation... if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question" (Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 31; see also Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 67, para. 110).
The Court notes that Pakistan's contentions regarding the applicability of the Vienna Convention are threefold. First, Pakistan argues that Article 36 of the Vienna Convention does not apply in "prima facie cases of espionage". Secondly, it contends that customary international law governs cases of espionage in consular relations and allows States to make exceptions to the provisions on consular access contained in Article 36 of the Vienna Convention. Thirdly, Pakistan maintains that it is the 2008 Agreement on Consular Access between India and Pakistan (hereinafter the "2008 Agreement"), rather than Article 36 of the Vienna Convention, which regulates consular access in the present case. The Court will examine each of these arguments in turn.
"Article 36
Communication and contact with nationals of the sending State
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended."
"Mr. TUNKIN felt it might be best to delete the words 'without delay'. There were cases in which it was impossible to inform the consul immediately of the arrest or detention of a national. Sometimes — for instance in espionage cases, where there might be accomplices at large — it might be desirable that the local authorities should not be obliged to inform the consul." (Ibid., p. 58, para. 47.)
"The CHAIRMAN remarked that a statement of a general principle of law could not possibly cover all conceivable cases. If the Commission went into the question of whether cases of espionage should be made an exception the whole principle of consular protection and communication with nationals would have to be re-opened." (Ibid., p. 58, para. 48.)
"The CHAIRMAN invited Mr. Zourek [the former Special Rapporteur of the International Law Commission on this topic] to explain why the International Law Commission had included the words 'without undue delay' in its draft...
Mr. ZOUREK (Expert) said that... [t]hey were intended to allow for cases in which the receiving State's police might wish to held [sic] a criminal in custody for a time. For example, if a smuggler was suspected of controlling a network, the police might wish to keep his arrest secret until they had been able to find his contacts. Similar measures might be adopted in case of espionage." (Ibid., Vol. I, p. 338, paras. 8-9.)
"Agreement on Consular Access
The Government of India and the Government of Pakistan, desirous of furthering the objective of humane treatment of nationals of either country arrested, detained or imprisoned in the other country, have agreed to reciprocal consular facilities as follows:
...
(ii) Immediate notification of any arrest, detention or imprisonment of any person of the other country shall be provided to the respective High Commission.
...
(iv) Each Government shall provide consular access within three months to nationals of one country, under arrest, detention or imprisonment in the other country.
(v) Both Governments agree to release and repatriate persons within one month of confirmation of their national status and completion of sentences.
(vi) In case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits."
Having concluded that the Vienna Convention is applicable in the present case, the Court will examine the alleged violations by Pakistan of its obligations under Article 36 thereof. India contends in its final submissions that Pakistan acted in breach of its obligations under Article 36 of the Vienna Convention (i) by not informing India, without delay, of the detention of Mr. Jadhav; (ii) by not informing Mr. Jadhav of his rights under Article 36; and (iii) by denying consular officers of India access to Mr. Jadhav, contrary to their right to visit him, to converse and correspond with him, and to arrange for his legal representation. The Court will consider the alleged violations in chronological order.
"consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State".
Paragraph 1 (c) provides, inter alia, that "consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him". The Court recalls that "Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person" (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 494, para. 77).
(i) by not informing Mr. Jadhav of his rights under Article 36, paragraph 1 (b) ;
(ii) by not informing India, without delay, of the arrest and detention of Mr. Jadhav; and
(iii) by denying access to Mr. Jadhav by consular officers of India, contrary to their right, inter alia, to arrange for his legal representation (see paragraphs 99-119 above).
The Court reaffirms that "it is a principle of international law... that any breach of an engagement involves an obligation to make reparation" and that "reparation must, as far as possible, wipe out all the consequences of the illegal act" (Factory at Chorzow (Claim for Indemnity), Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, pp. 29, 47). The Court considers the appropriate remedy in this case to be effective review and reconsideration of the conviction and sentence of Mr. Jadhav. This is consistent with the approach that the Court has taken in cases of violations of Article 36 of the Convention (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 514, para. 125; Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), pp. 65-66, paras. 138-140 and p. 73, para. 153). It is also in line with what the Applicant asks the Court to adjudge and declare in the present case. In the Court's view, India ultimately requests effective remedies for the breaches of the Convention by Pakistan. The Court notes that Pakistan acknowledges that the appropriate remedy in the present case would be effective review and reconsideration of the conviction and sentence.
"appropriate clemency procedures can supplement judicial review and reconsideration, in particular where the judicial system has failed to take due account of the violation of the rights set forth in the Vienna Convention" (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 66, para. 143).
The evidence before the Court suggests that two clemency procedures are available to Mr. Jadhav: a mercy petition to the Chief of Army Staff within 60 days of the decision by the Appellate Court and a mercy petition to the President of Pakistan within 90 days of the decision of the Chief of Army Staff on the mercy petition (see paragraph 29 above). The outcome of the petition submitted by Mr. Jadhav to the Chief of Army Staff (see paragraph 140 above) has not, however, been made known to the Court. No evidence has been submitted to the Court regarding the presidential clemency procedure.
For these reasons,
THE COURT,
(1) Unanimously,
Finds that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017;
(2) By fifteen votes to one,
Rejects the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible;
IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;
AGAINST: Judge ad hoc Jillani;
(3) By fifteen votes to one,
Finds that, by not informing Mr. Kulbhushan Sudhir Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, the Islamic Republic of Pakistan breached the obligations incumbent upon it under that provision;
IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;
AGAINST: Judge ad hoc Jillani;
(4) By fifteen votes to one,
Finds that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations;
IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;
AGAINST: Judge ad hoc Jillani;
(5) By fifteen votes to one,
Finds that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations;
IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;
AGAINST: Judge ad hoc Jillani;
(6) By fifteen votes to one,
Finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations;
IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;
AGAINST: Judge ad hoc Jillani;
(7) By fifteen votes to one,
Finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention, taking account of paragraphs 139, 145 and 146 of this Judgment;
IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;
AGAINST: Judge ad hoc Jillani;
(8) By fifteen votes to one,
Declares that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.
IN FAVOUR: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa;
AGAINST: Judge ad hoc Jillani.
Judge CANÇADO TRINDADE appends a separate opinion to the Judgment of the Court; Judges SEBUTINDE, ROBINSON and IWASAWA append declarations to the Judgment of the Court; Judge ad hoc JILLANI appends a dissenting opinion to the Judgment of the Court.
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