Jadhav (India v. Pakistan)

On 8 May 2017, India filed an Application instituting proceedings against Pakistan in respect of a dispute concerning alleged violations of the Vienna Convention on Consular Relations of 24 April 1963 “in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav”, who had been sentenced to death by a military court in Pakistan in April 2017. India claimed that Pakistan had failed to inform it, without delay, of the arrest and detention of its national. It further contended that Mr. Jadhav had not been informed of his rights under Article 36 of the Vienna Convention on Consular Relations, and that India’s consular officers had been denied access to Mr. Jadhav while he was in custody, detention and prison, and had been unable to converse and correspond with him, or arrange for his legal representation. As basis for the Court’s jurisdiction, India referred in its Application to Article 36, paragraph 1, of the Statute of the Court and Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.

On the same day, India also filed a Request for the indication of provisional measures, requesting the Court to direct Pakistan to “take all measures necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed” and to “ensure that no action is taken that might prejudice the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav with respect to any decision th[e] Court may render on the merits of the case”.

By an Order dated 18 May 2017, the Court directed Pakistan to “take all measures at its disposal” to ensure that Mr. Jadhav would not be executed pending a final decision in the case, and to inform the Court of all the measures taken in implementation of that Order. It also decided that, until the Court had given its final decision, it would remain seised of the matters which formed the subject matter of the Order.

Public hearings on the merits of the case were held from 18 to 21 February 2019. In its Judgment of 17 July 2019, the Court first outlined the background of the dispute, before concluding that it had jurisdiction to entertain India’s claims based on alleged violations of the Vienna Convention. The Court next addressed the three objections to admissibility raised by Pakistan, which were based on India’s alleged abuse of process, abuse of rights and unlawful conduct. The Court concluded that India’s Application was admissible.

Turning to the merits of the case, the Court examined in turn each of Pakistan’s three contentions concerning the applicability of the Vienna Convention. Having found that none of the arguments raised by Pakistan could be upheld, the Court concluded that the Vienna Convention was applicable in the case, “regardless of the allegations that Mr. Jadhav was engaged in espionage activities”.

Next, the Court examined India’s claim that Pakistan had acted in violation of its obligations under Article 36 of the Vienna Convention, by failing to inform India, without delay, of Mr. Jadhav’s detention. The Court observed that Pakistan did not contest India’s assertion that Mr. Jadhav had not been informed of his rights under Article 36, paragraph 1 (b), of the Convention, and thus concluded that Pakistan had breached its obligation under that provision.

As regards Pakistan’s alleged breach of its obligation to inform India, without delay, of the arrest and detention of Mr. Jadhav, as provided for in Article 36, paragraph 1 (b), of the Vienna Convention, the Court found that since Pakistan had failed to inform Mr. Jadhav of his rights, it was under an obligation to inform India’s consular post of his arrest and detention, that obligation also being implied by the rights of consular officers, under Article 36, paragraph 1 (c) of the Convention, to visit the national, “to converse and correspond with him and to arrange for his legal representation”. The Court then pointed out that Pakistan had notified India of Mr. Jadhav’s arrest and detention on 25 March 2016, some three weeks after his arrest; taking account of the particular circumstances of the case, the Court considered that Pakistan had thus breached its obligation to inform the consular post “without delay”, as required by Article 36, paragraph 1 (b), of the Vienna Convention.

The Court then turned to India’s third claim concerning Pakistan’s alleged failure to allow Indian consular officers to communicate with Mr. Jadhav, recalling in this regard 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”. It being undisputed that Pakistan had not granted any Indian consular officer access to Mr. Jadhav, the Court was of the view that India’s alleged failure to co‑operate in the investigation process in Pakistan did not relieve Pakistan of its obligation to grant consular access, and did not justify Pakistan’s denial of access to Mr. Jadhav by consular officers of India. Further, Mr. Jadhav’s choice to be represented by a defending officer qualified for legal representation did not dispense with the consular officers’ right to arrange for his legal representation. The Court therefore concluded that Pakistan had breached the obligations incumbent on it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention, by denying India’s consular officers access to Mr. Jadhav, contrary to their right to visit him, converse and correspond with him, and arrange for his legal representation.

With regard to India’s contention that it was entitled to restitutio in integrum, its request for the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, and its further request for the Court to direct Pakistan to take steps to annul the decision of the military court, release Mr. Jadhav and facilitate his safe passage to India, the Court found that the submissions made by India could not be upheld. The Court also found, however, that Pakistan was 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 was given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention.