Jadhav Case (India v. Pakistan)

On 8th of May, 2017, Government of the Republic of India filed in the Registry of the International Court of Justice, an Application against Islamic Republic of Pakistan alleging violations of Vienna Convention on Consular Relations of 24th April 1963 in the matter of the detention and trial of an Indian National, Mr. Kulbushan Sudhir Jadhav, sentenced to death in Pakistan.

The International Court of Justice composed of President Abraham; judges Owada, Cancado Trindade, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Crawford, Gevorgian and Registrar Couvreur. The Court, having regard to Article 41 and 48 of the Statute of the International Court of Justice and Article 73, 74 and 75(these Articles relates to interim protection) of Rules of International Court of Justice 1978, makes the order.

In the application India requested four reliefs;
1) A relief by way of immediate suspension of death sentence awarded to accused.
2) A relief by way of restitution in integrum (in original condition) by declaring that the sentence given by military court is defiance of the Vienna Convention rights under Article 36 (particularly 36(1)(b), and in defiance of elementary human rights of an accused under Article 14 of 1966 International Covenant on civil and political rights.
3) Restraining Pakistan from execution of sentence and directing it to take steps to annul the decision.
4) And 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 directing it to release the convicted Indian National.

On 8th May 2017, accompanying its application, India also submitted a request for the indication of Provisional measures. In that request India asked the Court to indicate that the Government of Islamic Republic of Pakistan take all necessary measures to ensure that Kulbushan is not executed and to report to the Court action it has and has not taken which might prejudice the rights of Republic of India or Mr. Kulbushan Jadhav. The request further urged the court to treat this request as a matter of greatest urgency and pass an order immediately on provisional measures suo-motu without waiting for oral hearing or Pakistan might end up executing the death sentence awarded to Mr Kulbushan.

At the end of oral observations, India asked the court for provisional measures that the Government of Pakistan take steps to ensure non execution of Mr. Jadhav, report to the court about it and make sure that no action be taken against India or Mr. Jadhav. For its part, Pakistan asked the Court to reject India’s request for the indication of provisional measures.

India was represented by Dr. Deepak Mittal, Dr. Vishnu Dutt Sharma and Mr. Harish Salve. The counsel for Pakistan included Dr. Mohammad Faisal and Mr. Khawar Qureshi, Q.C.

The Court summarized the facts as follows; Mr. Jadhav has been in the custody of Pakistani authorities since March 3, 2016. The circumstances of his arrest remain in dispute between the parties. India maintains that Mr. Jadhav is an Indian national. The applicant claims to have been informed of his arrest on March 25, 2016, when the Foreign Secretary of Pakistan raised the matter with the Indian High commissioner in Pakistan. India, to no avail, requested consular access to Mr. Jadhav many times. On 23 January 2017, Pakistan sent a letter of request seeking India’s assistance in the investigation process concerning Mr. Jadhav and his alleged accomplices. On 21 March and 10 April 2017 Pakistan informed India that consular access to Mr. Jadhav would be considered in the light of India’s response to said request. According to a press statement issued on 14 April 2017 by an advisor on foreign affairs to the Prime minister of Pakistan, Mr. Jadhav was sentenced to death on 10 April 2017 by a Court Martial due to activities of “espionage, sabotage and terrorism”. India submits that it protested and persisted on consular access and information concerning this case. It appears that under Pakistani law the time to lodge an appeal is 40 days which India states that on 26 April 2017 mother of the convicted filed an appeal under section 133 (B) and a petition to the Federal Government of Pakistan under section 131 of the Pakistan Army Act 1952. Both of which were handed over by Indian High Commissioner to Pakistan’s Foreign Secretary on the same day.

The Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded. In the present case, India seeks to find the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes, which accompanies the Vienna Convention on Consular Relations.

Article I of the Optional Protocol provides as follows:
“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.”

India claims that a dispute exists between the Parties regarding the interpretation and application of Article 36, paragraph 1, of the Vienna Convention, which provides as follows:
“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.”
India contends that Pakistan has breached its obligations in the aforementioned provisions for the arrest, detention and trial of Mr. Jadhav. India acknowledges that the parties have signed an agreement on Consular Access on 21 May 2008.

Whereas, Pakistan claims that the Court has no prima facie jurisdiction to entertain India’s request for the indication of provisional measures. It first submits that the jurisdiction of the court is excluded by a number of reservations in the parties’ declarations under Article 36, paragraph 2 of the Statute. Pakistan refers to a reservation contained in its own amended declaration of 29 March 2017, according to which “all matters relating to the national security of the Islamic Republic of Pakistan” are excluded from the compulsory jurisdiction of the Court. For Pakistan, this reservation is applicable in the present case because Mr. Jadhav was arrested, detained, tried and sentenced for espionage, sabotage and terrorism. Pakistan contended that the provisions of Article 36, paragraph 1 of the Vienna convention could not apply to persons suspected of espionage or terrorism, and therefore there is no dispute relating to interpretation of this legislation in present case.

Finally, Pakistan avers that the facts alleged in the Application fall within the scope of the 2008 Agreement, which “limit[s] and qualifies or supplements” the Vienna Convention. It refers to Article 73, paragraph 2, of the Vienna Convention, which provides that “nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof”. Pakistan considers that the 2008 Agreement “amplifies or supplements [the Parties’] understanding and the operation of the Convention”. In this regard, Pakistan calls attention to sub-paragraph (vi) of the 2008 Agreement, which 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”. Pakistan argues that this provision applies to Mr. Jadhav and that the Court therefore lacks prima facie jurisdiction under Article I of the Optional Protocol.

The Court notes that the parties apparently differ on the question of India’s consular assistance to Mr. Jadhav; Pakistan states that such assistance would be considered in the light of India’s response to its request for assistance in the investigation process. Consequently, Court considers that it has prima facie jurisdiction under Article 1 of the optional protocol to entertain the dispute between parties.

Pakistan argues that the rights invoked by India are not plausible because Article 36 of Vienna convention does not apply to persons suspected of espionage or terrorism. At this stage, the Court is not called for determination of; it needs only to decide whether these rights are plausible. In the view of the Court, taking into account the legal arguments and evidence presented, it appears that the rights invoked by India in the present case on the basis of Article 36, paragraph 1, of the Vienna Convention, are plausible.

As India made request of urgency, the Court, pursuant to Article 41 of its Statute, has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings. India contends that the execution of Mr. Jadhav would cause prejudice to the rights it claims and that this execution may occur at any moment. Whereas, Pakistan claims that there is no urgency because Mr. Jadhav can still apply for clemency and that period is of 150 days.

Without prejudging the result of any appeal or petition against the decision to sentence Mr. Jadhav to death, the Court considers that, as far as the risk of irreparable prejudice to the rights claimed by India is concerned, the mere fact that Mr. Jadhav is under such a sentence and might therefore be executed is sufficient to demonstrate the existence of such a risk.

The court concluded from all the above considerations that the conditions required by its statute for it to indicate provisional measures are met and that certain measures must be indicated in order to protect the rights claimed by India pending its final decision. Under present conditions, the court found it appropriate to order that Pakistan shall take all measures to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform all the measures taken in the implementation of present order.