Order of 18 May 2017

18 MAY 2017

ORDER

JADHAV CASE

(INDIA v.PAKISTAN)

___________

AFFAIRE JADHAV

(INDE c. PAKISTAN)

18 MAI 2017

ORDONNANCE TABLE OFCONTENTS

Paragraphs

CHRONOLOGY OF THE PROCEDURE 1-12

I. PRIMA FACIE JURISDICTION 15-34

II. HE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE MEASURES
REQUESTED 35-48

III. ISK OF IRREPARABLE PREJUDICE AND URGENCY 49-56
IV. CONCLUSION AND MEASURES TO BE ADOPTED 57-60

OPERATIVE PARAGRAPH 61

___________ INTERNATIONAL COURT OF JUSTICE

YEAR 2017
2017
18 May
General List

No. 168
18 May 2017

JADHAV CASE

(INDIA v. PAKISTAN)

REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES

ORDER

Present: President ABRAHAM ; Judges OWADA , ANÇADO T RINDADE , UE , ONOGHUE , GAJA,

S EBUTINDE, BHANDARI , OBINSON , RAWFORD , GEVORGIAN ; Registrar OUVREUR .

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73, 74 and 75 of
the Rules of Court,

Makes the following Order: - 2 -

Whereas:

1. 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 “in the matter of the detention and trial of an Indian National,
Mr. Kulbhushan Sudhir Jadhav”, sentenced to death in Pakistan.

2. At the end of its Application, India requests:

“(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.”

3. In its Application, India seeks to found the jurisdiction of the Court on Article 36,

paragraph 1, of the Statute of the Court and Article I of the Optional Protocol concerning the
Compulsory Settlement of Disputes, which accompanies the Vienna Convention on Consular
Relations.

4. On 8 May 2017, accompanying its Application, India also submitted a Request for the
indication of provisional measures, referring to Article 41 of the Statute of the Court and to
Articles 73, 74 and 75 of the Rules of Court.

5. In that Request, India asked that the Court indicate: - 3 -

“(a) that the Government of the Islamic Republic of Pakistan take all measures
necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed;

(b) that the Government of the Islamic Republic of Pakistan report to the Court the
action it has taken in pursuance of sub-paragraph (a); and

(c) that the Government of the Islamic Republic of Pakistan 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.”

6. The Request also contained the following plea:

“In view of the extreme gravity and immediacy of the threat that authorities in
Pakistan will execute an Indian citizen in violation of obligations Pakistan owes to
India, India respectfully urges the Court to treat this Request as a matter of the greatest
urgency and pass an order immediately on provisional measures suo-motu without

waiting for an oral hearing. The President is requested [to] exercis[e] his power under
Article 74, paragraph 4, of the Rules of Court, pending the meeting of the Court, to
direct the Parties to act in such a way as will enable any order the Court may make on
the Request for provisional measures to have its appropriate effects.”

7. The Registrar immediately communicated to the Government of Pakistan the Application,
in accordance with Article 40, paragraph 2, of the Statute of the Court, and the Request for the

indication of provisional measures, in accordance with Article 73, paragraph 2, of the Rules of
Court. He also notified the Secretary-General of the United Nations of the filing of the Application
and of the Request.

8. By a letter dated 9 May 2017 addressed to the Prime Minister of Pakistan, the President of
the Court, exercising the powers conferred upon him under Article 74, paragraph 4, of the Rules of
Court, called upon the Pakistani Government, pending the Court’s decision on the Request for the

indication of provisional measures, “to act in such a way as will enable any order the Court may
make on this Request to have its appropriate effects”. A copy of that letter was transmitted to the
Agent of India.

9. By letters dated 10 May 2017, the Registrar informed the Parties that, pursuant to
Article 74, paragraph 3, of the Rules, the Court had fixed 15 May 2017 as the date for the oral
proceedings on the Request for the indication of provisional measures.

10. At the public hearings held on 15 May 2017, oral observations on the Request for the
indication of provisional measures were presented by: - 4 -

On behalf of India: Dr. Deepak Mittal,
Dr. Vishnu Dutt Sharma,

Mr. Harish Salve.

On behalf of Pakistan: Dr. Mohammad Faisal,
Mr. Khawar Qureshi, Q.C.

11. At the end of its oral observations, India asked the Court to indicate the following
provisional measures:

“(a) that the Government of the Islamic Republic of Pakistan take all measures
necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed;

(b) that the Government of the Islamic Republic of Pakistan report to the Court the
action it has taken in pursuance of sub-paragraph (a); and

(c) that the Government of the Islamic Republic of Pakistan 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 the Court may render
on the merits of the case”.

12. For its part, Pakistan asked the Court to reject India’s Request for the indication of
provisional measures.

*

* *

13. The context in which the present case has been brought before the Court can be
summarized as follows. Mr. Jadhav has been in the custody of Pakistani authorities since

3 March 2016, although the circumstances of his arrest remain in dispute between the Parties.
India maintains that Mr. Jadhav is an Indian national, which Pakistan recognized in its Notes
Verbales of 23 January 2017, 21 March 2017 and 10 April 2017 (see Annexes 2, 3 and 5 to the
Application). The Applicant claims to have been informed of this arrest on 25 March 2016, when
the Foreign Secretary of Pakistan raised the matter with the Indian High Commissioner in Pakistan.
As of that date, India requested consular access to Mr. Jadhav. India reiterated its request on
numerous occasions, to no avail. 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 the said request for assistance. - 5 -

14. According to a press statement issued on 14 April 2017 by an adviser 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
continued to press for consular access and information concerning the proceedings against
Mr. Jadhav. It appears that, under Pakistani law, Mr. Jadhav would have 40 days to lodge an
appeal against his conviction and sentence (i.e., until 19 May 2017), but it is not known whether he
has done so. India states however that, on 26 April 2017, Mr. Jadhav’s mother 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 the Indian High Commissioner to
Pakistan’s Foreign Secretary on the same day.

I.P RIMA FACIE JURISDICTION

15. 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, but need
not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case (see,

for example, Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of All Forms of Racial
Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017,
para. 17).

16. In the present case, India seeks to found 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 (hereinafter the “Optional Protocol” and the “Vienna Convention”, respectively). The
Court must therefore first seek to determine whether Article I of the Optional Protocol prima facie
confers upon it jurisdiction to rule on the merits, enabling it — if the other necessary conditions are
fulfilled — to indicate provisional measures.

17. India and Pakistan have been parties to the Vienna Convention since 28 December 1977
and 14 May 1969, respectively, and to the Optional Protocol since 28 December 1977 and
29 April 1976, respectively. Neither of them has made reservations to those instruments.

18. 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.” - 6 -

19. 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 judgement. 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.”

* *

20. India contends that Pakistan has breached its obligations under the above-mentioned

provisions in the matter of the arrest, detention and trial of Mr. Jadhav. The Applicant asserts that
Mr. Jadhav has been arrested, detained, tried and sentenced to death by Pakistan and that, despite
several attempts, it could neither communicate with nor have access to him, in violation of
Article 36, sub-paragraphs (1) (a) and (1) (c) of the Vienna Convention, and that Mr. Jadhav has
neither been informed of his rights nor been allowed to exercise them, in violation of
sub-paragraph (1) (b) of the same provision. India asserts that Article 36, paragraph 1, of the
Vienna Convention “admits of no exceptions” and is applicable irrespective of the charges against

the individual concerned.

21. India acknowledges that the Parties have signed an Agreement on Consular Access on
21 May 2008 (hereinafter the “2008 Agreement”), but it maintains that this instrument does not - 7 -

limit the Parties’ rights and obligations pursuant to Article 36, paragraph 1, of the Vienna
Convention. According to India, while Article 73 of the Vienna Convention recognizes that

agreements between parties may supplement and amplify its provisions, it does not provide a basis
for diluting the obligations contained therein. India therefore considers that this Agreement does
not have any effect on the Court’s jurisdiction in the present case.

22. India also emphasizes that it only seeks to found the Court’s jurisdiction on Article I of
the Optional Protocol, and not on the declarations made by the Parties under Article 36,
paragraph 2, of the Statute. India is of the view that where treaties or conventions especially

provide for the jurisdiction of the Court, such declarations, including any reservations they may
contain, are not applicable.

*

23. 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 two of India’s reservations to its declaration of 18 September 1974,
i.e., first, that preventing the Court from entertaining cases involving two members of the
Commonwealth and, second, its multilateral treaty reservation. Pakistan also 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.

24. Secondly, Pakistan also contends that Article 36, paragraph 1, of the Vienna Convention
could not have been intended to apply to persons suspected of espionage or terrorism, and that

there can therefore be no dispute relating to the interpretation or application of that instrument in
the present case.

25. Finally, Pakistan avers that the facts alleged in the Application fall within the scope of
the 2008 Agreement, which “limit[s] and qualif[ies] or supplement[s]” the Vienna Convention. It
refers to Article 73, paragraph 2, of the Vienna Convention, which 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”. 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.

* * - 8 -

26. The Court recalls that the Applicant seeks to ground its jurisdiction in Article 36,
paragraph 1, of the Statute and Article I of the Optional Protocol; it does not seek to rely on the

Parties’ declarations under Article 36, paragraph 2, of the Statute. When the jurisdiction of the
Court is founded on particular “treaties and conventions in force” pursuant to Article 36,
paragraph 1, of its Statute, “it becomes irrelevant to consider the objections to other possible bases
of jurisdiction” (Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan),
Judgment, I.C.J. Reports 1972, p. 60, para. 25; see also Territorial and Maritime Dispute
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 872,
para. 132). Therefore, any reservations contained in the declarations made by the Parties under

Article 36, paragraph 2, of the Statute cannot impede the Court’s jurisdiction specially provided for
in the Optional Protocol. Thus, the Court need not examine these reservations further.

27. Article I of the Optional Protocol provides that the Court has jurisdiction over “[d]isputes
arising out of the interpretation or application of the [Vienna] Convention” (see paragraph 18
above).

28. The Court will accordingly ascertain whether, on the date the Application was filed, such
a dispute appeared to exist between the Parties.

29. In this regard, the Court notes that the Parties do indeed appear to have differed, and still
differ today, on the question of India’s consular assistance to Mr. Jadhav under the Vienna
Convention. While India has maintained at various times that Mr. Jadhav should have been (and
should still be) afforded consular assistance under the Vienna Convention (see for instance Notes

Verbales dated 19 and 26 April 2017 annexed to the Application), Pakistan has stated that such an
assistance would be considered “in the light of India’s response to [its] request for assistance” in
the investigation process concerning him in Pakistan (see the Notes Verbales of Pakistan dated
21 March and 10 April 2017 annexed to the Application). These elements are sufficient at this
stage to establish prima facie that, on the date the Application was filed, a dispute existed between
the Parties as to the question of consular assistance under the Vienna Convention with regard to the
arrest, detention, trial and sentencing of Mr. Jadhav.

30. In order to determine whether it has jurisdiction — even prima facie — the Court must
also ascertain whether such a dispute is one over which it might have jurisdiction ratione materiae
on the basis of Article I of the Optional Protocol. In this regard, the Court notes that the acts
alleged by India are capable of falling within the scope of Article 36, paragraph 1, of the Vienna
Convention, which, inter alia, guarantees the right of the sending State to communicate with and

have access to its nationals in the custody of the receiving State (sub-paragraphs (a) and (c)), as
well as the right of its nationals to be informed of their rights (sub-paragraph (b)). The Court
considers that the alleged failure by Pakistan to provide the requisite consular notifications with
regard to the arrest and detention of Mr. Jadhav, as well as the alleged failure to allow
communication and provide access to him, appear to be capable of falling within the scope of the
Vienna Convention ratione materiae. - 9 -

31. In the view of the Court, the aforementioned elements sufficiently establish, at this stage,

the existence between the Parties of a dispute that is capable of falling within the provisions of the
Vienna Convention and that concerns the interpretation or application of Article 36, paragraph 1,
thereof.

32. The Court also notes that the Vienna Convention does not contain express provisions
excluding from its scope persons suspected of espionage or terrorism. At this stage, it cannot be

concluded that Article 36 of the Vienna Convention cannot apply in the case of Mr. Jadhav so as to
exclude on a prima facie basis the Court’s jurisdiction under the Optional Protocol.

33. In respect of the 2008 Agreement, the Court does not need to decide at this stage of the
proceedings whether Article 73 of the Vienna Convention would permit a bilateral agreement to
limit the rights contained in Article 36 of the Vienna Convention. It is sufficient at this point to

note that the provisions of the 2008 Agreement do not impose expressly such a limitation.
Therefore, the Court considers that there is no sufficient basis to conclude at this stage that the
2008 Agreement prevents it from exercising its jurisdiction under Article I of the Optional Protocol
over disputes relating to the interpretation or the application of Article 36 of the Vienna
Convention.

34. Consequently, the Court considers that it has prima facie jurisdiction under Article I of

the Optional Protocol to entertain the dispute between the Parties.

II. THE RIGHTS WHOSE PROTECTION IS SOUGHT
AND THE MEASURES REQUESTED

35. The power of the Court to indicate provisional measures under Article 41 of the Statute

has as its object the preservation of the respective rights claimed by the parties in a case, pending
its decision on the merits thereof. It follows that the Court must be concerned to preserve by such
measures the rights which may subsequently be adjudged by it to belong to either party. Therefore,
the Court may exercise this power only if it is satisfied that the rights asserted by the party
requesting such measures are at least plausible (see, for example, Application of the International
Convention for the Suppression of the Financing of Terrorism and of the International Convention

on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation),
Provisional Measures, Order of 19 April 2017, para. 63).

36. Moreover, a link must exist between the rights whose protection is sought and the
provisional measures being requested (ibid., para. 64).

37. In its Application, India asserts that the rights it is seeking to protect are those provided
by paragraph 1 of Article 36 of the Vienna Convention (quoted above at paragraph 19). - 10 -

38. As the Court stated in its Judgment in the LaGrand case,

“Article 36, paragraph 1, establishes an interrelated régime designed to facilitate
the implementation of the system of consular protection. It begins with the basic
principle governing consular protection: the right of communication and access
(Art. 36, para. 1 (a)). This clause is followed by the provision which spells out the
modalities of consular notification (Art. 36, para. 1 (b)). Finally Article 36,
paragraph 1 (c), sets out the measures consular officers may take in rendering consular
assistance to their nationals in the custody of the receiving State.” (I.C.J.

Reports 2001, p. 492, para. 74.)

39. It follows from Article 36, paragraph 1, that all States Parties to the Vienna Convention
have a right to provide consular assistance to their nationals who are in prison, custody or detention
in another State Party. They are also entitled to respect for their nationals’ rights contained therein.

* *

40. In the present case, the Applicant claims that Mr. Jadhav, who is an Indian national, was
arrested, detained, tried and sentenced to death by Pakistan and that, despite several attempts, India
was given no access to him and no possibility to communicate with him. In this regard, India states
that it requested consular access to the individual on numerous occasions between 25 March 2016
and 19 April 2017, without success. India points out that on 21 March 2017, at the end of the trial

of Mr. Jadhav, Pakistan stated that “the case for the consular access to the Indian national
Kulbushan Jadhav shall be considered in the light of India[’s] response to Pakistan’s request for
assistance” in the investigation process concerning him; Pakistan reiterated its position
on 10 April 2017 — apparently the day when Mr. Jadhav was convicted and sentenced to death
(see paragraphs 13-14 above). India argues in this connection that the conditioning of consular
access on assistance in an investigation is itself a serious violation of the Vienna Convention. It
adds that Mr. Jadhav has not been informed of his rights with regard to consular assistance. The

Applicant concludes from the foregoing that Pakistan failed to provide the requisite notifications
without delay, and that India and its national have been prevented for all practical purposes from
exercising their rights under Article 36, paragraph 1, of the Vienna Convention.

* - 11 -

41. Pakistan, for its part, contests that it has conditioned consular assistance as alleged by
India. Furthermore, it avers that the rights invoked by India are not plausible because Article 36 of

the Vienna Convention does not apply to persons suspected of espionage or terrorism, and because
the situation of Mr. Jadhav is governed by the 2008 Agreement.

* *

42. At this stage of the proceedings, the Court is not called upon to determine definitively
whether the rights which India wishes to see protected exist; it need only decide whether these
rights are plausible (see above paragraph 35 and Application of the International Convention for
the Suppression of the Financing of Terrorism and of the International Convention on the
Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional
Measures, Order of 19 April 2017, para. 64).

43. The rights to consular notification and access between a State and its nationals, as well as
the obligations of the detaining State to inform without delay the person concerned of his rights
with regard to consular assistance and to allow their exercise, are recognized in Article 36,
paragraph 1, of the Vienna Convention. Regarding Pakistan’s arguments that, first, Article 36 of
the Vienna Convention does not apply to persons suspected of espionage or terrorism, and that,
second, the rules applicable to the case at hand are provided in the 2008 Agreement, the Court
considers that at this stage of the proceedings, where no legal analysis on these questions has been

advanced by the Parties, these arguments do not provide a sufficient basis to exclude the
plausibility of the rights claimed by India, for the same reasons provided above (see
paragraphs 32-33).

44. India submits that one of its nationals has been arrested, detained, tried and sentenced to
death in Pakistan without having been notified by the same State or afforded access to him. The
Applicant also asserts that Mr. Jadhav has not been informed without delay of his rights with

regard to consular assistance or allowed to exercise them. Pakistan does not challenge these
assertions.

45. 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.

* - 12 -

46. The Court now turns to the issue of the link between the rights claimed and the
provisional measures requested.

47. The Court notes that the provisional measures sought by India consist in ensuring that the
Government of Pakistan will take no action that might prejudice its alleged rights, in particular that
it will take all measures necessary to prevent Mr. Jadhav from being executed before the Court
renders its final decision.

48. The Court considers that these measures are aimed at preserving the rights of India and

of Mr. Jadhav under Article 36, paragraph 1, of the Vienna Convention. Therefore, a link exists
between the rights claimed by India and the provisional measures being sought.

III. RISK OF IRREPARABLE PREJUDICE AND URGENCY

49. 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 (see, for example, Application of the International Convention for the Suppression of
the Financing of Terrorism and of the International Convention on the Elimination of All Forms of
Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of
19 April 2017, para. 88).

50. However, the power of the Court to indicate provisional measures will be exercised only
if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will

be caused to the rights in dispute before the Court gives its final decision (ibid., para. 89). The
Court must therefore consider whether such a risk exists at this stage of the proceedings.

* *

51. India contends that the execution of Mr. Jadhav would cause irreparable prejudice to the

rights it claims and that this execution may occur at any moment before the Court decides on the
merits of its case, as any appeal proceedings in Pakistan could be concluded very quickly and it is
unlikely that the conviction and sentence would be reversed. In this regard, India explains that the
only judicial remedy available to Mr. Jadhav was the filing of an appeal within 40 days of the
sentence rendered on 10 April 2017. It points out that, although Mr. Jadhav may seek clemency,
first from the Chief of Army Staff of Pakistan and secondly from the President of Pakistan, these
are not judicial remedies.

* - 13 -

52. Pakistan claims that there is no urgency because Mr. Jadhav can still apply for clemency
and that a period of 150 days is provided for in this regard. According to Pakistan, even if this

period started on 10 April 2017 (the date of conviction at first instance), it would extend beyond
August 2017. The Agent for Pakistan stated that there would be no urgent need to indicate
provisional measures if the Parties agreed to an expedited hearing and suggested that Pakistan
would be content for the Court to list the Application for hearing within six weeks.

* *

53. 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.

54. There is considerable uncertainty as to when a decision on any appeal or petition could

be rendered and, if the sentence is maintained, as to when Mr. Jadhav could be executed. Pakistan
has indicated that any execution of Mr. Jadhav would probably not take place before the end of
August 2017. This suggests that an execution could take place at any moment thereafter, before the
Court has given its final decision in the case. The Court also notes that Pakistan has given no
assurance that Mr. Jadhav will not be executed before the Court has rendered its final decision. In
those circumstances, the Court is satisfied that there is urgency in the present case.

55. The Court adds, with respect to the criteria of irreparable prejudice and urgency, that the
fact that Mr. Jadhav could eventually petition Pakistani authorities for clemency, or that the date of
his execution has not yet been fixed, are not per se circumstances that should preclude the Court
from indicating provisional measures (see, e.g., Avena and Other Mexican Nationals (Mexico v.
United States of America), Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003,
p. 91, para. 54).

56. The Court notes that the issues brought before it in this case do not concern the question
whether a State is entitled to resort to the death penalty. As it has observed in the past, “the
function of this Court is to resolve international legal disputes between States, inter alia when they
arise out of the interpretation or application of international conventions, and not to act as a court of
criminal appeal” (LaGrand (Germany v. United States of America), Provisional Measures, Order
of 3 March 1999, I.C.J. Reports 1999 (I), p. 15, para. 25; Avena and Other Mexican Nationals
(Mexico v. United States of America), Provisional Measures, Order of 5 February 2003,

I.C.J. Reports 2003, p. 89, para. 48). - 14 -

IV. C ONCLUSION AND MEASURES TO BE ADOPTED

57. The Court concludes 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.

58. Under the present circumstances, it is appropriate for the Court to order that 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.

*

* *

59. The Court reaffirms that its “orders on provisional measures under Article 41 [of the
Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment,
I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party

to whom the provisional measures are addressed.

*

* *

60. The decision given in the present proceedings in no way prejudges the question of the
jurisdiction of the Court to deal with the merits of the case or any questions relating to the
admissibility of the Application or to the merits themselves. It leaves unaffected the right of the
Governments of India and Pakistan to submit arguments in respect of those questions.

*

* * - 15 -

61. For these reasons,

THE C OURT ,

I. Unanimously,

Indicates the following provisional measures:

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.

II. Unanimously,

Decides that, until the Court has given its final decision, it shall remain seised of the matters
which form the subject-matter of this Order.

Done in English and in French, the English text being authoritative, at the Peace Palace,

The Hague, this eighteenth day of May two thousand and seventeen, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to the Government of the
Republic of India and the Government of the Islamic Republic of Pakistan.

(Signed) RonnyA BRAHAM ,
President.

(Signed) Philippe C OUVREUR ,
Registrar.

Judge C ANÇADO TRINDADE appends a separate opinion to the Order of the Court; Judge
B HANDARI appends a declaration to the Order of the Court.

(Initialled) R. A.

(Initialled) Ph. C.

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