(1) Factual Background: Since 3 March 2016, an individual named Kulbhushan Sudhir Jadhav
(hereinafter “Mr. Jadhav”) has been in the custody of Pakistani authorities. The circumstances of
his apprehension remain in dispute between the Parties. According to India, Mr. Jadhav was
kidnapped from Iran, where he was residing and carrying out business activities after his retirement
from the Indian Navy. He was subsequently transferred to Pakistan and detained for interrogation.
Pakistan contends that Mr. Jadhav, whom it accuses of performing acts of espionage and terrorism
on behalf of India, was arrested in Balochistan near the border with Iran after illegally entering
Pakistani territory. Pakistan explains that, at the moment of his arrest, Mr. Jadhav was in
possession of an Indian passport bearing the name “Hussein Mubarak Patel”. India denies these
allegations. On 25 March 2016, Pakistan raised the issue with the High Commissioner of India in
Islamabad and released a video in which Mr. Jadhav appears to confess to his involvement in acts
of espionage and terrorism in Pakistan at the behest of India’s foreign intelligence agency
“Research and Analysis Wing” (also referred to by its acronym “RAW”). The circumstances under
which the video was recorded are unknown to the Court. On the same day, Pakistan notified the
permanent members of the Security Council of the United Nations of the matter. Also on the same
day, by means of a Note Verbale from the High Commission of India in Islamabad to the Ministry
of Foreign Affairs of Pakistan, India noted the “purported arrest of an Indian” and requested
consular access “at the earliest” to “the said individual”. Subsequently, and at least until 9 October
2017, India sent more than ten Notes Verbales in which it identified Mr. Jadhav as its national and
sought consular access to him. On 8 April 2016, Pakistani police authorities registered a “First
Information Report” (hereinafter “FIR”), which is an official document recording information on
the alleged commission of criminal offences. Pakistan explains that, once registered, a FIR enables
police authorities to initiate an investigation. In this case, the FIR gave details of Mr. Jadhav’s
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alleged involvement in espionage and terrorism activities and stated that he was “under
interrogation” by Pakistani military authorities. A supplementary FIR was said to have been
registered on 6 September 2016. On 22 July 2016, Mr. Jadhav made a confessional statement,
which was allegedly recorded before a magistrate. The trial of Mr. Jadhav started on 21 September
2016 and, according to Pakistan, was conducted before a Field General Court Martial. Various
details of the trial were made public by means of a press release and a statement dated 10 and 14
April 2017 respectively. On the basis of this information (from the only source made available to
the Court), it appears that Mr. Jadhav was tried under Section 59 of the Pakistan Army Act of 1952
and Section 3 of the Official Secrets Act of 1923. According to Pakistan, after the trial had begun,
he was given an additional period of three weeks in order to facilitate the preparation of his
defence, for which “a law qualified field officer” was specifically appointed. All witness statements
were allegedly recorded under oath in the presence of Mr. Jadhav, who was allowed to put
questions to the witnesses. During the trial, a law officer of Pakistan’s Judge Advocate General
Branch “remained a part of the Court”. On 2 January 2017, the Adviser to the Prime Minister of
Pakistan on Foreign Affairs sent a letter to the Secretary-General of the United Nations informing
him of Mr. Jadhav’s arrest and confession, which, in his view, confirmed India’s involvement in
activities aimed at “destabilizing Pakistan”. On 23 January 2017, the Ministry of Foreign Affairs of
Pakistan sent a “Letter of Assistance for Criminal Investigation against Indian National
Kulbhushan Sudhair Jadhev” to the High Commission of India in Islamabad, seeking, in particular,
support in “obtaining evidence material and record for the criminal investigation” of Mr. Jadhav’s
activities. The letter referred to India’s “earlier assurances of assistance, on a reciprocal basis, in
criminal/terrorism matters”, as well as resolution 1373 (2001) adopted by the Security Council
concerning measures to prevent and suppress threats to international peace and security caused by
terrorist acts. Pakistan claims that, despite reiterated reminders, prior to the hearings before the
Court, it has received no “substantive response” from India regarding this request. India, for its
part, refers to two Notes Verbales dated 19 June and 11 December 2017, respectively, in which it
stated that Pakistan’s request had no legal basis and was not, in any event, supported by credible
evidence. On 21 March 2017, the Ministry of Foreign Affairs of Pakistan sent a Note Verbale to
the High Commission of India in Islamabad indicating that India’s request for consular access
would be considered “in the light of Indian side’s response to Pakistan’s request for assistance in
the investigation process and early dispensation of justice”. On 31 March 2017, India replied that
“consular access to Mr. Jadhav would be an essential pre-requisite in order to verify the facts and
understand the circumstances of his presence in Pakistan”. The Parties raised similar arguments in
subsequent diplomatic exchanges. On 10 April 2017, Pakistan announced that Mr. Jadhav had been
sentenced to death. This was followed by a press statement issued on 14 April 2017 by the Adviser
to the Prime Minister on Foreign Affairs. In addition to the above-mentioned details of Mr.
Jadhav’s trial, the statement referred to the availability of the following means of redress: an appeal
before a Military Appellate Court within 40 days of the sentence; a mercy petition addressed to the
Chief of Army Staff within 60 days of the Military Appellate Court’s decision; and a similar
petition addressed to the President of Pakistan within 90 days of the decision of the Chief of Army
Staff.
On 26 April 2017, the High Commission of India in Islamabad transmitted to Pakistan, on behalf of
Mr. Jadhav’s mother, an “appeal” under Section 133 (B) and a petition to the Federal Government
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of Pakistan under Section 131 of the Pakistan Army Act. India asserts that, because Pakistan denied
it access to the case file, both documents had to be prepared on the sole basis of information
available in the public domain. On 22 June 2017, the Inter Services Public Relations of Pakistan
issued a press release announcing that Mr. Jadhav had made a mercy 4 Ord_1173.indb 26 16/07/20
16:02 430 jadhav (judgment) 16 petition to the Chief of Army Staff after the rejection of his appeal
by the Military Appellate Court. India claims that it has received no clear information on the
circumstances of this appeal or the status of any appeal or petition concerning Mr. Jadhav’s
sentence. The above-mentioned press release also referred to another confessional statement by Mr.
Jadhav recorded on a date and in circumstances that remain unknown to the Court. On 10
November 2017, Pakistan informed India of its decision to allow Mr. Jadhav’s wife to visit him on
“humanitarian grounds”. The offer was extended to Mr. Jadhav’s mother on 13 November 2017. At
India’s request, Pakistan gave assurances that it would ensure the free movement, safety and wellbeing of the visitors and allow the presence of a diplomatic representative from India. The visit
took place on 25 December 2017; however, the Parties disagree over the extent to which Pakistan
gave effect to its assurances. On 8 May 2017, the Government of the Republic of India (hereinafter
“India”) filed in the Registry of the Court an application instituting proceedings against the Islamic
Republic of Pakistan (hereinafter “Pakistan”) alleging violations of the Vienna Convention on
Consular Relations of 24 April 1963 (hereinafter the “Vienna Convention”) “in the matter of the
detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav”, sentenced to death by a
military court in Pakistan.
Appoint Pakistan National Judge: Since the Court included upon the Bench no judge of
Pakistani nationality, Pakistan proceeded to exercise the right conferred upon it by Article 31,
paragraph 2, of the Statute to choose a judge ad hoc to sit in the case; it chose Mr. Tassaduq
Hussain Jillani.
India’s Claims: In the Application, the following claims were made by India: “(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.”
II. Jurisdiction: India and Pakistan have been parties to the Vienna Convention since 28
December 1977 and 14 May 1969 respectively. They also were, at the time of the filing of the
Application, parties to the Optional Protocol without any reservations or declarations. India seeks
to found the Court’s jurisdiction on Article 36, paragraph 1, of the Statute and on Article I of the
Optional Protocol, which provides: “Disputes arising out of the interpretation or application of the
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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.” The present dispute concerns the question of consular
assistance with regard to the arrest, detention, trial and sentencing of Mr. Jadhav. The Court notes
that Pakistan has not contested that the dispute relates to the interpretation and application of the
Vienna Convention. The Court also notes that, in its Application, written pleadings and final
submissions, India asks the Court to declare that Pakistan has violated Mr. Jadhav’s “elementary
human rights”, “which are also to be given effect as mandated under Article 14 of the 1966
International Covenant on Civil and Political Rights” (hereinafter the “Covenant”). The Covenant
entered into force for India on 10 July 1979 and for Pakistan on 23 September 2010. In this respect,
the Court observes that its jurisdiction in the present case arises from Article I of the Optional
Protocol and therefore does not extend to the determination of breaches of international law
obligations other than those under the Vienna Convention.
III Pakistan’s Objections: In its judgment on the preliminary objections (regarding abuse of
Process by India) in the case concerning Immunities and Criminal Proceedings (Equatorial Guinea
v. France), the Court ruled that “abuse of rights cannot be invoked as a ground of inadmissibility
when the establishment of the right in question is properly a matter for the merits” (Preliminary
Objections, Judgment, I.C.J. Reports 2018 (I), p. 337, para. 151). The Court notes, however, that by
raising the argument that India has not provided the Court with his “actual passport in his real
name”, Pakistan appears to suggest that India has failed to prove Mr. Jadhav’s nationality. This
argument is relevant to the claims based on Article 36 of the Vienna Convention in relation to Mr.
Jadhav, and therefore, must be addressed at this stage. In this respect, the Court observes that the
evidence before it shows that both Parties have considered Mr. Jadhav to be an Indian national.
Indeed, Pakistan has so described Mr. Jadhav on various occasions, including in its “Letter of
Assistance for Criminal Investigation against Indian National Kulbhushan Sudhair Jadhev”.
Consequently, the Court is satisfied that the evidence before it leaves no room for doubt that Mr.
Jadhav is of Indian nationality.
As indicated above, the second and third arguments advanced by Pakistan in support of its second
objection to the admissibility of the Application are based on various alleged breaches of India’s
obligations under Security Council resolution 1373 (2001). In particular, Pakistan refers to India’s
failure to respond to Pakistan’s request for mutual legal assistance with its criminal investigations
into Mr. Jadhav’s espionage and terrorism activities, as well as the issuance of what Pakistan
describes as a “false cover name authentic passport”. The Court observes that, in essence, Pakistan
seems to argue that India cannot request consular assistance with respect to Mr. Jadhav, while at
the same time it has violated other obligations under international law as a result of the abovementioned acts. While Pakistan has not clearly explained the link between these allegations and the
rights invoked by India on the merits, in the Court’s view, such allegations are properly a matter for
the merits and therefore cannot be invoked as a ground of inadmissibility. For these reasons, the
Court finds that Pakistan’s second objection to the admissibility of India’s Application must be
rejected.
In its third objection to the admissibility of India’s Application, Pakistan asks the Court to dismiss
the Application on the basis of India’s alleged unlawful conduct. Relying on the doctrine of “clean
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hands” and the principles of “ex turpi causa [non oritur actio]” and “ex injuria jus non oritur”,
Pakistan contends that India has failed to respond to its request for assistance with the investigation
into Mr. Jadhav’s activities, that it has provided him with a “false cover name authentic passport”
and, more generally, that it is responsible for Mr. Jadhav’s espionage and terrorism activities in
Pakistan. The Court does not consider that an objection based on the “clean hands” doctrine may
by itself render an application based on a valid title of jurisdiction inadmissible. It recalls that in the
case concerning Certain Iranian Assets (Islamic Republic of Iran v. United States of America), it
ruled that “even if it were shown that the Applicant’s conduct was not beyond reproach, this would
not be sufficient per se to uphold the objection to admissibility raised by the Respondent on the
basis of the ‘clean hands’ doctrine” (Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 44,
para. 122). The Court therefore concludes that Pakistan’s objection based on the said doctrine must
be rejected.
Pakistan argues that the Vienna Convention does not apply in cases of individuals “who manifest
from their own conduct and the materials in their possession a prima facie case of espionage
activity”. The Court notes that India is not a party to the 1969 Vienna Convention on the Law of
Treaties and that, while Pakistan signed that Convention on 29 April 1970, it has not ratified it. The
Court will interpret the Vienna Convention on Consular Relations according to the customary rules
of treaty interpretation which, as it has stated on many occasions, are reflected in Articles 31 and
32 of the Vienna Convention on the Law of Treaties. Under these rules of customary international
law, the provisions of the Vienna Convention on Consular Relations must be interpreted in good
faith in accordance with the ordinary meaning to be given to their terms in their context and in the
light of the object and purpose of the Convention. To confirm the meaning resulting from that
process, or to remove ambiguity or obscurity, or to avoid a manifestly absurd or unreasonable
result, recourse may be had to supplementary means of interpretation, which include the
preparatory work of the Convention and the circumstances of its conclusion.
(a) Interpretation of Article 36 in accordance with the ordinary meaning of its terms: Article
36 of the Vienna Convention on Consular Relations provides as follows: “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 subparagraph; (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. The rights referred to in paragraph 1 of this
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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.”
The Court observes that neither Article 36 nor any other provision of the Vienna Convention
contains a reference to cases of espionage. Nor does Article 36 exclude from its scope, when read
in its context and in light of the object and purpose of the Convention, certain categories of
persons, such as those suspected of espionage. The object and purpose of the Vienna Convention as
stated in its preamble is to “contribute to the development of friendly relations among nations”.
The purpose of Article 36, paragraph 1, of the Convention as indicated in its introductory sentence
is to “facilitate the exercise of consular functions relating to nationals of the sending State”.
Consequently, consular officers may in all cases exercise the rights relating to consular access set
out in that provision for the nationals of the sending State. It would run counter to the purpose of
that provision if the rights it provides could be disregarded when the receiving State alleges that a
foreign national in its custody was involved in acts of espionage. The Court thus concludes that,
when interpreted in accordance with the ordinary meaning to be given to the terms of the Vienna
Convention in their context and in the light of its object and purpose, Article 36 of the Convention
does not exclude from its scope certain categories of persons, such as those suspected of espionage.
(b) The travaux préparatoires of Article 36: In view of the conclusion above, the Court need not,
in principle, resort to supplementary means of interpretation, such as the travaux préparatoires of
the Vienna Convention and the circumstances of its conclusion, to determine the meaning of
Article 36 of the Convention. However, as in other cases (see, for example, Immunities and
Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J.
Reports 2018 (I), p. 322, para. 96; Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 653, para. 53), the Court may have
recourse to the travaux préparatoires in order to confirm its interpretation of Article 36 of the
Vienna Convention.
(i) International Law Commission (1960): During the discussions of the International Law
Commission on the topic of “consular intercourse and immunities”, there was no suggestion that
Article 36 would not apply to certain categories of persons, such as those suspected of espionage. It
provided, in the relevant part, that “[t]he local authorities shall inform the consul of the sending
State without delay when any national of that State is detained in custody within his district”
(Yearbook of the International Law Commission, 1960, Vol. I, p. 42, para. 1). Among the issues
discussed in relation to this provision was the question of whether and to what extent it was
conceivable for consular notification to be made “without delay” in countries which had a system
of detention incommunicado, whereby the person might be held isolated from the outside world for
a certain period at the beginning of a criminal investigation. The Court notes that cases of
espionage were also mentioned in the context of the Commission’s discussions on the possible
inclusion of a reference to security zones in the proposed provision. However, there was no
suggestion of consular access not being granted in cases of espionage because of national security
concerns. During its 1961 session, the Commission decided to change the words “without delay” to
“without undue delay” (Yearbook of the International Law Commission, 1961, Vol. I, pp. 242-
245). The Court observes that this decision had no implication for the scope of draft Article 36. The
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Commission’s commentary to draft Article 36, paragraph 1 (b), merely states that “[t]he expression
‘without undue delay’ used in paragraph 1 (b) allows for cases where it is necessary to hold a
person incommunicado for a certain period for the purposes of the criminal investigation” (Official
Records of the United Nations Conference on Consular Relations, Vienna, 4 March-22 April 1963
(United Nations, doc. A/CONF.25/16/Add.1), Vol. II, p. 24, para. 6).
(ii) The Vienna Conference (1963): During the United Nations Conference on Consular Relations
held in Vienna from 4 March to 22 April 1963, the question of espionage was raised in relation to
the words “without undue delay” in draft Article 36: “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.) The explanation given by Mr. Zourek suggests that while the charge of
espionage was thought to be relevant in determining the appropriate period of time within which
notification to the sending State should be made by the receiving State, cases of espionage were not
excluded from the scope of the Vienna Convention. The Court further notes that in the course of
the discussion on proposed amendments to draft Article 36, including a proposal by the United
Kingdom to delete the word “undue” from the phrase “without undue delay” which was eventually
adopted (ibid., Vol. I, p. 348), it was not suggested that certain categories of persons, such as those
suspected of espionage, were to be excluded from the protection of the Convention.
2. Alleged espionage exception under customary international law: According to Pakistan,
State practice establishes that at the time of the adoption of the Vienna Convention in 1963, there
was no rule of customary international law that made consular access obligatory in the case of
individuals accused of espionage. Pakistan argues that there was a rule of customary international
law in 1963 that prima facie cases of espionage constituted an exception to the right of consular
access. It cites the preamble of the Vienna Convention, which affirms that “the rules of customary
international law continue to govern matters not expressly regulated by the provisions of the
present Convention”, in support of its conclusion that the rule of customary international law was
unaffected by the Convention and continues to prevail over it.
The Court notes that the preamble of the Vienna Convention states that “the rules of customary
international law continue to govern matters not expressly regulated by the provisions of the
present Convention” (emphasis added). Article 36 of the Convention expressly regulates the
question of consular access to, and communication with, nationals of the sending State and makes
no exception with regard to cases of espionage. The Court recalls that India and Pakistan have been
parties to the Vienna Convention since 1977 and 1969 respectively and that neither Party attached
any reservation or declaration to the provisions of the Convention. The Court, therefore considers
that Article 36 of the Convention, and not customary international law, governs the matter at hand
in the relations between the Parties. Having reached this conclusion, the Court does not find it
necessary to determine whether, when the Vienna Convention was adopted in 1963, there existed
the rule of customary international law that Pakistan advances.
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3. Relevance of the 2008 Agreement on Consular Access between India and Pakistan: Pakistan
maintains that it is the 2008 Agreement rather than the Vienna Convention on Consular Relations
that governs the question of consular access between India and Pakistan, including in the present
case.1 In Pakistan’s view, the nature and circumstances of Mr. Jadhav’s alleged espionage and
terrorist activities bring his arrest squarely within the national security qualification contained in
point (vi) of the Agreement. Pakistan thus argues that it was entitled to consider the question of
consular access to Mr. Jadhav “on its merits” in the particular circumstances of this case. In
Pakistan’s view, point (vi) of the 2008 Agreement is fully consistent with Article 73 of the Vienna
Convention on Consular Relations and with Article 41 of the Vienna Convention on the Law of
Treaties, because the 2008 Agreement can properly be seen as “supplementing” or “amplifying”
the provisions of the Vienna Convention on Consular Relations.
The Court recalls that point (vi) of the 2008 Agreement provides that “[i]n case of arrest, detention
or sentence made on political or security grounds, each side may examine the case on its merits”. It
also recalls that, in the preamble of the Agreement, the Parties declared that they were “desirous of
furthering the objective of humane treatment of nationals of either country arrested, detained or
imprisoned in the other country”. The Court is of the view that point (vi) of the Agreement cannot
be read as denying consular access in the case of an arrest, detention or sentence made on political
or security grounds. Given the importance of the rights concerned in guaranteeing the “humane
treatment of nationals of either country arrested, detained or imprisoned in the other country”, if the
Parties had intended to restrict in some way the rights guaranteed by Article 36, one would expect
such an intention to be unequivocally reflected in the provisions of the Agreement. That is not the
case.
The alleged exception of espionage in the Vienna Convention, any derogation from Article 36 of
the Vienna Convention for political or security grounds may render the right related to consular
access meaningless as it would give the receiving State the possibility of denying such access.
Account should also be taken of Article 73, paragraph 2, of the Vienna Convention for the purpose
of interpreting the 2008 Agreement. This paragraph provides that “[n]othing in the present
Convention shall preclude States from concluding international agreements confirming or
supplementing or extending or amplifying the provisions thereof”. The language of this paragraph
indicates that it refers to subsequent agreements to be concluded by parties to the Vienna
Convention. The Court notes that the Vienna Convention was drafted with a view to establishing,
to the extent possible, uniform standards for consular relations. The ordinary meaning of Article
1 “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.”
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73, paragraph 2, suggests that it is consistent with the Vienna Convention to conclude only
subsequent agreements which confirm, supplement, extend or amplify the provisions of that
instrument, such as agreements which regulate matters not covered by the Convention. The Parties
have negotiated the 2008 Agreement in full awareness of Article 73, paragraph 2, of the Vienna
Convention. Having examined that Agreement and in light of the conditions set out in Article 73,
paragraph 2, the Court is of the view that the 2008 Agreement is a subsequent agreement intended
to “confirm, supplement, extend or amplify” the Vienna Convention. Consequently, the Court
considers that point (vi) of that Agreement does not, as Pakistan contends, displace the obligations
under Article 36 of the Vienna Convention. For these reasons, the Court finds that none of the
arguments raised by Pakistan concerning the applicability of Article 36 of the Vienna Convention
to the case of Mr. Jadhav can be upheld. The Court thus concludes that the Vienna Convention is
applicable in the present case, regardless of the allegations that Mr. Jadhav was engaged in
espionage activities.
Alleged failure to inform Mr. Jadhav of his rights under Article 36, paragraph 1 (b): Article
36, paragraph 1 (b), of the Vienna Convention provides that the competent authorities of the
receiving State must inform a foreign national in detention of his rights under that provision. The
Court, therefore needs to determine whether the competent Pakistani authorities informed Mr.
Jadhav of his rights in accordance with this provision. In this respect, the Court observes that
Pakistan has not contested India’s contention that Mr. Jadhav was not informed of his rights under
Article 36, paragraph 1 (b), of the Convention. To the contrary, in the written and oral proceedings,
Pakistan consistently maintained that the Convention does not apply to an individual suspected of
espionage. The Court infers from this position of Pakistan that it did not inform Mr. Jadhav of his
rights under Article 36, paragraph 1 (b), of the Vienna Convention, and thus concludes that
Pakistan breached its obligation to inform Mr. Jadhav of his rights under that provision.
Alleged failure to inform India, without delay, of the arrest and detention of Mr. Jadhav: The
Court found that there was a delay of some three weeks between Mr. Jadhav’s arrest on 3 March
2016 and the notification made to India on 25 March 2016. The Court recalls that neither the terms
of the Vienna Convention as normally understood nor its object and purpose, suggest that “without
delay” is to be understood as “immediately upon arrest and before interrogation”. It also recalls that
there is no suggestion in the travaux that the phrase “without delay” might have different meanings
in each of the three sets of circumstances in which it is used in Article 36, paragraph 1 (b). Taking
account of the particular circumstances of the present case, the Court considers that the fact that the
notification was made some three weeks after the arrest, in this case, constitutes a breach of the
obligation to inform “without delay”, as required by Article 36, paragraph 1 (b), of the Vienna
Convention.
Alleged failure to provide consular access: The Court then addresses India’s third submission
concerning the alleged failure of Pakistan to provide consular access to Mr. Jadhav. 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.
Article 36, paragraph 1 (c), provides that consular officers have the right to arrange legal
representation for a detained national of the sending State. The provision presupposes that consular
officers can arrange legal representation based on conversation and correspondence with the
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detained person. In the view of the Court, Pakistan’s contention that Mr. Jadhav was allowed to
choose a lawyer for himself, but that he opted to be represented by a defending officer qualified for
legal representation, even if it is established, does not dispense with the consular officers’ right to
arrange for his legal representation. The Court, therefore concludes that Pakistan has breached the
obligations incumbent on it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention, 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.
REMEDIES: The Court notes that it has already found that Pakistan acted in breach of its
obligations under Article 36 of the Vienna Convention: first, by not informing Mr. Jadhav of his
rights under Article 36, paragraph 1 (b); secondly, by not informing India, without delay, of the
arrest and detention of Mr. Jadhav; and thirdly, by denying access to Mr. Jadhav by consular
officers of India, contrary to their right, inter alia, to arrange for his legal representation. The Court
considers that the first and third breaches by Pakistan, as just set out, constitute internationally
wrongful acts of a continuing character. Accordingly, the Court is of the view that Pakistan is
under an obligation to cease those acts and to comply fully with its obligations under Article 36 of
the Vienna Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of
his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to
him and to arrange for his legal representation, as provided by Article 36, paragraph 1 (a) and (c).
With regard to India’s submission that the Court declare that the sentence handed down by
Pakistan’s military court is violative of international law and the provisions of the Vienna
Convention, the Court recalls that its jurisdiction has its basis in Article I of the Optional Protocol.
This jurisdiction is limited to the interpretation or application of the Vienna Convention and does
not extend to India’s claims based on any other rules of international law. The Court notes,
however, that the remedy to be ordered in this case has the purpose of providing reparation only for
the injury caused by the internationally wrongful act of Pakistan that falls within the Court’s
jurisdiction, namely its breach of obligations under Article 36 of the Vienna Convention on
Consular Relations, and not of the Covenant.
With regard to India’s contention that it is entitled to restitution in integrum and its request to annul
the decision of the military court and to restrain Pakistan from giving effect to the sentence or
conviction, and its further request to direct Pakistan to take steps to annul the decision of the
military court, to release Mr. Jadhav and to facilitate his safe passage to India, the Court reiterates
that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of
Article 36 of the Vienna Convention. The Court also recalls that it is not to be presumed that partial
or total annulment of conviction or sentence provides the necessary and sole remedy in cases of
violations of Article 36 of the Vienna Convention. Thus, the Court finds that these submissions
made by India cannot be upheld.
The Court considers the appropriate remedy in this case to be effective review and reconsideration
of the conviction and sentence of Mr. Jadhav. The Court notes that Pakistan acknowledges that this
is the appropriate remedy in the present case. Special emphasis must be placed on the need for the
review and reconsideration to be effective. The review and reconsideration of the conviction and
sentence of Mr. Jadhav, in order to be effective, must ensure that full weight is given to the effect
of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee
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that the violation and the possible prejudice caused by the violation are fully examined. It
presupposes the existence of a procedure which is suitable for this purpose.
The Court observes that it is normally the judicial process which is suited to the task of review and
reconsideration. The Court notes that, according to Pakistan, the High Courts of Pakistan can
exercise review jurisdiction. The Court observes, however, that Article 199, paragraph 3, of the
Constitution of Pakistan has been interpreted by the Supreme Court of Pakistan as limiting the
availability of such review for a person who is subject to any law relating to the Armed Forces of
Pakistan, including the Pakistan Army Act of 1952. The Supreme Court has stated that the High
Courts and the Supreme Court may exercise judicial review over a decision of the Field General
Court Martial on “the grounds of coram non judice, without jurisdiction or suffering from mala
fides, including malice in law only”. Article 8, paragraph 1, of the Constitution provides that any
law which is inconsistent with fundamental rights guaranteed under the Constitution is void, but
this provision does not apply to the Pakistan Army Act of 1952 by virtue of a constitutional
amendment. Thus, it is not clear whether judicial review of a decision of a military court is
available on the ground that there has been a violation of the rights set forth in Article 36,
paragraph 1, of the Vienna Convention.
The Court considers that the clemency process is not sufficient in itself to serve as an appropriate
means of review and reconsideration but that 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. Respect for the principles
of a fair trial is of cardinal importance in any review and reconsideration, and that, in the
circumstances of the present case, it is essential for the review and reconsideration of the
conviction and sentence of Mr. Jadhav to be effective. The Court considers that the violation of the
rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the
principles of a fair trial, should be fully examined and properly addressed during the review and
reconsideration process. In particular, any potential prejudice and the implications for the evidence
and the right of defence of the accused should receive close scrutiny during the review and
reconsideration.
To conclude, the Court finds that Pakistan is under an obligation to provide, by means of its own
choosing, effective review and reconsideration of the conviction and sentence of Mr. 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 Vienna Convention. Finally, the Court recalls that it indicated a provisional measure directing
Pakistan to take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the
final decision in the present proceedings. The Court considers that a continued stay of execution
constitutes an indispensable condition for the effective review and reconsideration of the
conviction and sentence of Mr. Jadhav.
