Request for the indication of provisional measures submitted by the Republic of India

Document Number
19424
Document Type
Incidental Proceedings
Date of the Document
Document File
Document

INTERNATIONAL COURT OF JUSTICE

Case Concerning the Vienna Conventionon Consula1r

Relations
(India vs. Pakistan)

REQUEST FOR THE INDICATION OF

PROVISIONAL MEASURES OF
PROTECTION

The Hague , 8 May 2017 REQUEST FOR THE INDICATION OF
PROVISIONAL MEASURES OF PROTECTION

SUBMITTED BY THE GOVERNMENT OF
THE REPUBLIC OF INDIA

1. 1 have the honor to refer to the Application

submitted to the Court this day institut ig

proceedings 1n the name of the Republic of India

against the Govemment of the

lslamic Republic of Pakistan. ln accordance '"'ith
Article 41 of the Statute of the Court and Articles

73, 74 and 75 of the Rules of Court, 1 respectfully

submit an urgent request that the Court indicate

provisional measures to preserve the rights of the
Republic of India.

2. The Court has jurisdiction pursuant to Article

36 of the Vienna Convention on Consular Relations
1963 and Article 1 of the Optional Protocol to the

Vienna Convention on Consular Relations

Concerning the Compul~ory Settlement of

Disputes .

1 1. FACTS

3.. As more full y set forth in the Application, the

authorities of Pakistan arrested, detained, tried

and sentenccd to dea th on 10 April 2017 an lndian
national, Mr. Kulbhushan Sudhir Jadhav, tn

egregious violation of the rights of consular access

guaranteed by Article 36, paragraph 1, of the

Vienna Convention.

4. India was informed on 25 March 2016 th at an

Indian national (Kulbhushan Sudhir Jadhav) was

allegedly arrested on March 3, 20 16 .On that very

day, lndia sought consular access ta the s:aid
individual at the earlicst. The rcquest did not evoke

any response. Thus , on 30 March 2016 Indi a sent

a reminder reiterating its request for consutlar

access to the individual at the earliest. Thirteen
more reminders were sent by India on 6 May 2016,

10 June 2016, 11 July 2016, 26 July 2016, 22

August 2016 , 3 November 2016, 19 December

2016, 3 February 2017, 3 March 2017, 31 March
20 17, 10 April 20 17, 14 Apri1 20 17 and 19 Apri1

2017. All the se requests fell on deaf ears.

25.. Almost a yea r after India's first request for

consular access, on 23 January 2017, India

received from Pakistan a request for assistance in

investigation of what was descr1bed as "FIR No. 6 of
2016." Subsequently , on 21 March 2017, Pakistan

formall y communicated to lndia that consular

access by a State lo Mr. Jadhav "shall be

considered in the light of Indian side's response to
Pakistan ,s request for assistance in investigation

process and early dispensation of justice.,, This was

totally against Pakistan 's obligation und er the

Vienna Convention that does not lay down any
limitation on right of consular access by a State to

its national and also the right of the lndian

national to freely communicate with Indian

authorities under Article 36 of the Convention.

6. India learnt from Press reports on 10 April

2017 that Pakistan proceeded to have a military
trial against Mr. Jadhav and he was sentenced to

dea th purportedly on the basis of a con fessional

statement.

7. lndia received on 10 April, 20 17 another note

verbale from the Pakistan Ministry of Foreign

Affairs. Islamabad conveying that consu lar access

3 shall be considered in the light of India's response
to Pakistan's request for assistance tn the

investigation process .

8. lndia responded to this on 10 April, 2017
itself painting out that this offer was being iterated

after the death sentence had been confirmed - the

information of which was given in a press release

by Pakistan . India stated that this offer "underlines

the farcical nature of the proceedings and the so­
called trial by a Pakistan military court martial".

India pointed out that despite its repeated requests

con sular access had not been allowed.

9. Pakistan was under an international legal

obligation to India, a party to the Vienna

Convention, to comply with the rights of consular

access under sub-paragraphs (a) and (c) of
paragraph 1 of Article 36. Pakistan was also under

an obligation under international law and the

Vicnna Convention to allow Indian national to seek

consular acccss.

10. It was only after the trial had been concluded

th at Pakistan , on 21 March 2017 , proposed to

cons ider the request for cons ular access, and t:hat

4 too, on the condition that India first accede to iits

request for assistance in investigation. The dea th

sentence was awarded to the Indian national on 10

April 2017. On the same day, Pakistan merely
reitera led its proposai of 21 March 2017.

11. Pakistan continues to deny consular access

and to provide any information regarding the

proceedings against the Indian national includ iing

whether an appeal has bccn filed in the matter.

India submits that, in an y event , an appeal is an
illusory remedy for the reasons set forth in detail in

the accompanying Application . Notwithstand ing

the above , the mother of Mr. Kulbhushan Sudlhir

Jadhav filed an appeal under Section 133 (8) and a

petition to the Federal Govemment of Pakistan

under Section 131 of the Pakistan Army Act 1952.

The appeal and the petition were handed over to
the Pakistan Government by the Indian High

Commissioner in Islamabad on April 26 , 2017 .

12. The request for provisional measures

assumes great urgency as Mr. Jadhav has

already been sentenced to death and he has only

forty days to file an appeal. India has no access to
Mr. ,Jadhav and no access to any information of

5 what is in play in the matter. His conviction, as per

the Press Statement of 17th April 2017, appears to

be based on his "confession" made when he was in

captivity and without consu1ar access. India has :no

confidence that he will be in a position to file an

appeal that would seriously challenge his
conviction and sentence . It thercfore becomes vital

to immediately suspend the execution of the cteatth

sentence awarded to him.

13. An appeal has been filed on his behalf by his

mother, and from the press reports it appears that

a court of appeal has already been constitut1ed.

There is thus great urgency in the matter as 1t is

possible that the appeal may be disposed of even

prier to the expiry of the period of 40 days available
for filing.

II. THE AUTHORITY OF THE COURT

14 . Article 4 1 (1) of the Statu te of the Court vests
the Court with {power to indicate, ifit considers

that circumstances so require, any provisional

measures which ought to be taken to preserve the

respective n·ghts of either party" pending a final

6 judgment 1n the case. Orders of provisional

measures pursuant to Article 41 establish binding

obligations. La Grand (Gern1any v. United States of
America), Judgment , JCJ Reports 2001 , p.466 para.

109.

l5. The Court has. 1n three reported cases,
indicated pro visional measures to preven t

executions in applications based on the violation of

Article 36 of the Vienna Convention on Consular

Relations and which reflects the concern of the

Court in matters of human rights violations such
as those that result from violation of consular

access and assistance in legal proceedings.

16. In the Case Conceming the Vienna Convention

on Consular Relations (Paraguay v. United States of
America), Provisional Measures , Order of 9 .April

1998, ICJ Reports 1998 , p.248. the Court indicated

provisional measures to prevent the execution of

the Paragua yan national Angel Francisco Breard
pending final judgment. The Court afforded silnilar

relief in La Grand (Gennany v. United States of

America) , Provisional Measures , Order of 3 1\llarch

1999, JCJ Reports 1999, p.9 to prevent the
execution of the German national Walter La Grand.

7 ln Avena and Other Mexican Nationals (Mexico v.

United States of America}, Provisional Measures,

Order of 5 February 2003, ICJ Reports 2003, p. 77,

the Court directed the United States of America to

take all measures necessary to ensure that three
Mexican nationals were not executed pending final

judgment.

17. International law recogntzes the sanctity of
human life. The International Covenant on Civil

and Political Rights IICCPR), to which Pakistan is a

party, establishes that every human being has the

inherent right to life and which shall be protected

by law . Article 14 of the ICCPR entitles every
person to a fair and public trial by an impartial

tribunal. The faimess of the trial depends

substantially upon the means available to an

accused to defend himself effectively. Where a
person is arrested in a foreign country, the right to

consular access , and to seek the assistance of his

home country in his defence is what fulfills the

aspiration of a fair trial in a foreign state.

18. The violation of the Vienna Convention by

Pakistan has resulted in the imposition of the

death penalt y on the lndian national. It has

8 prevented India from exercising its rights under the
Convention and has also deprived th e Indian

national from the protection accorded under the

Convention.

19. India respectfully submits that fVr.

Kulbhushan Sudhir Jadhav will be subjected to

execution unless the Court indica tes provisionaJ

measures directing the Govemment of Pakistan to
take all measurcs necessary to ensure th at he is

not executed until this Court's decision on the

mer1ts of lndia's claims. The execution of Mr.

Kulbhushan Sudhir Jadhav would cause

irreparable prejudice to the rights claimed by India.
Case Conceming the Vienna Convention on

Consular Relations (Paraguay v. United States of

America}, Provisional Measures , Order of 9 April

1998, ICJ Reporl.s 1998, p.248, para 37; La Grand
(Germany v. United States of America), Provisional

Measures , Order of 3 March 1999, ICJ Reports

1999, p.9, para 24 ~ Avena and Other MeXiican

Nationals (Merico v. United States of America),
Provisional Measures , Order of 5 February 2003,

JCJ Reports 2003, p. 77, para 55;

920. India, therefore, submits this urgent Request
for Provisional Measures to protect the lifc and

liberty of India's national, Mr. Kulbhushan Sudhir

Jadhav and to ensure the Court's ability to order

the relief that India seeks. Without the provisional
mcasures requested, Pakistan will execute JV1r.

Kulbhushan Sudhir Jadhav before this Court can

consider the merits of lndia's daims and India 'Nill

forever be deprived of the opportunity to vindicate

its rights . The Court's indication of provisional
measures in three prior cases supports lndia's

righ t to the relief sough t.

21. As stated above , there is immense urgency in
the matter as the 40 day period expires in any

event on !9t hMay, and besides the appeal by the

mother already having bee11 filed, and the court of

appeal already having been constituted, the
disposai of the appeaJ may take place any day.

III. THE ORDER REQUESTED

22. On behalf of the Govemment of the Republic

of lndia, 1 therefore respectfully request that,

pending final judgment in this case, the Court

indicate:

10 (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) Tha t the Government of the Islamic Republic

of Pakistan report to the Court the action itbas

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

lndia or Mr. Kulbhushan Sudhir Jadhav VJith
respect to an y decision this Court may render on

the merits of the case.

23 . ln view of the extreme gravit y and immediacy
of the threat that authorities in Pakistan will

execute an Indian citizen in violation of obligat ions

Pakistan owes to lndiat lndia respectfully urges the

Court to treat this Request as a matter of the
greatest urgen cy and pass an order immediately on

provisional measures suo-motu without waiting for

an oral hearing. The President is requested that

exercising his power un der Article 74, paragraph 4

11of the Rulcs of Court, pending the meeting of the

Court, to direct th e Parties to ac t in such a way as
willenable any order the Court may make on the

Requ est for provisional mc asun:s to have its

appropriate effects.

08 May 20 17 / )w\1, ~

(Dr. Deepak Mittal)
Joint Sec retary
Ministry of ExtPrnc=tlAffairs.
Govem mcnt of lndia

12

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