Public sitting held on Monday 15 May 2017, at 10 a.m., at the Peace Palace, President Abraham presiding, in the Jadhav (India v. Pakistan) case

Document Number
168-20170515-ORA-01-00-BI
Document Type
Incidental Proceedings
Number (Press Release, Order, etc)
2017/5
Date of the Document
Bilingual Document File
Bilingual Content

Corrigé
Corrected

CR 2017/5

International Court Cour internationale

of Justice de Justice

THE HAGUE LA HAYE

YEAR 2017

Public sitting

held on Monday 15 May 2017, at 10 a.m., at the Peace Palace,

President Abraham presiding,

in the Jadhav Case
(India v. Pakistan)

____________________

VERBATIM RECORD

____________________

ANNÉE 2017

Audience publique

tenue le lundi 15 mai 2017, à 10 heures, au Palais de la Paix,

sous la présidence de M. Abraham, président,

en l’affaire Jadhav

(Inde c. Pakistan)

________________

COMPTE RENDU
________________ - 2 -

Present: President Abraham

Judges Owada
Cançado Trindade
Xue
Donoghue
Gaja
Sebutinde
Bhandari

Robinson
Crawford
Gevorgian

Registrar Couvreur

 - 3 -

Présents : M. Abraham, président
MM. Owada

Cançado Trindade
Mmes Xue
Donoghue
M. Gaja
Mme Sebutinde
MM. Bhandari
Robinson

Crawford
Gevorgian, juges

M. Couvreur, greffier

 - 4 -

The Government of the Republic of India is represented by:

Dr. Deepak Mittal, Joint Secretary, Ministry of External Affairs,

as Agent;

Dr. V. D. Sharma, Joint Secretary, Ministry of External Affairs,

as Co-Agent;

Mr. Harish Salve,

As Counsel;

Ms Kajal Bhat, First Secretary, Embassy of the Republic of India in the Kingdom of
the Netherlands,

As Adviser;

Ms Chetna N. Rai,

As Junior Counsel. - 5 -

Le Gouvernement de la République de l’Inde est représenté par :

M. Deepak Mittal, Joint Secretary, ministère des affaires étrangères,

comme agent ;

M. V. D. Sharma, Joint Secretary, ministère des affaires étrangères,

comme coagent ;

M. Harish Salve,

comme conseil ;

Mme Kajal Bhat, premier secrétaire, ambassade de la République de l’Inde au Royaume des
Pays-Bas,

comme conseiller ;

Mme Chetna N. Rai,

comme conseil auxiliaire. - 6 -

The Government of the Islamic Republic of Pakistan is represented by:

H.E. Mr. Moazzam Ahmad Khan, Ambassador of the Islamic Republic of Pakistan to the United
Arab Emirates,

Dr. Mohammad Faisal, Director-General (South Asia & SAARC),

as Agents;

Mr. Syed Faraz Hussain Zaidi, Counsellor of the Embassy of the Islamic Republic of Pakistan in
the Netherlands,

as Adviser;

Mr. Khawar Qureshi, Q.C.,

as Counsel;

Mr. Asad Rahim Khan,

as Junior Counsel;

Mr. Joseph Dyke,

as Legal Assistant. - 7 -

Le Gouvernment de la République islamique du Pakistan est représenté par :

S. Exc. M. Moazzam Ahmad Khan, ambassadeur de la République islamique du Pakistan auprès
des Emirats arabes unis,

M. Mohammad Faisal, directeur général (Asie du Sud et Association sud-asiatique pour la
coopération régionale),

comme agents ;

M. Syed Faraz Hussain Zaidi, conseiller à l’ambassade de la République islamique du Pakistan

aux Pays-Bas,

comme conseiller ;

M. Khawar Qureshi, Q.C.,

comme conseil ;

M Asad Rahim Khan,

comme conseil auxiliaire ;

M. Joseph Dyke,

comme assistant juridique. - 8 -

The PRESIDENT: Veuillez vous asseoir. L’audience est ouverte. The Court meets today

under Article 74, paragraph 3, of the Rules of Court, to hear the observations of the Parties on the

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

Jadhav Case (India v. Pakistan).

For reasons which they have duly conveyed to me, the Vice-President and Judges Tomka,

Bennouna and Greenwood are unable to be present on the Bench today.

India’s Application, dated 8 May 2017, instituting proceedings against the Islamic Republic

of Pakistan, concerns alleged violations of the Vienna Convention on Consular Relations “in the

matter of the detention and trial of an Indian national” sentenced to death in Pakistan,

Mr. Kulbhushan Jadhav. To found the jurisdiction of the Court, India relies 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.

I shall now ask the Registrar to read out the decision requested of the Court, as formulated in

the Application of India.

The REGISTRAR:

“In the circumstances, India seeks the following reliefs:

(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 interregnum 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) [r]estraining 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) [i]f 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.” - 9 -

The PRESIDENT: On the same day as the filing of the Application, India 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. In that Request, India states that the

alleged violation of the Vienna Convention by Pakistan has prevented India from exercising its

rights under the Convention and has deprived Mr. Jadhav from the protection accorded under the

Convention. The Applicant also submits that Mr. Jadhav “will be subjected to execution unless the

Court indicates provisional measures directing the Government of Pakistan to take all measures

necessary to ensure that he is not executed until th[e] Court’s decision on the merits” of the case.

India points out that Mr. Jadhav’s execution would cause irreparable prejudice to the rights it

claims. India further indicates that the protection of its rights is a matter of urgency as “[w]ithout

the provisional measures requested, Pakistan will execute Mr. Kulbhushan Sudhir Jadhav before

th[e] Court can consider the merits of India’s claims and India will forever be deprived of the

opportunity to vindicate its rights”.

I shall now ask the Registrar to read out the passage from the Request specifying the

provisional measures which the Government of India is asking the Court to indicate.

The REGISTRAR:

“[India] respectfully request[s] that, pending final judgment in this case, the
Court indicate:

(a) [t]hat the Government of the Islamic Republic of Pakistan take all measures

necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed;

(b) [t]hat 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) [t]hat 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 of any decision th[e] Court may
render on the merits of the case”.

The PRESIDENT: On 8 May 2017, immediately after the filing of the Application and

Request for the indication of provisional measures, the Registrar, in accordance with Article 40,

paragraph 2, of the Statute and Articles 38, paragraph 4, and 73, paragraph 2, of the Rules of Court, - 10 -

transmitted certified copies thereof to the Government of the Islamic Republic of Pakistan. He also

notified the Secretary-General of the United Nations of the filing of these documents by India.

By a letter dated 9 May 2017, referring to Article 74, paragraph 4, of the Rules of Court, in

my capacity as President of the Court, I called upon the Islamic Republic of Pakistan “to act in

such a way as will enable any Order the Court may make on th[e] Request [for the indication of

provisional measures] to have its appropriate effects”.

According to Article 74 of the Rules of Court, a Request for the indication of provisional

measures shall have priority over all other cases. Referring to “the extreme gravity and immediacy

of the threat”, India asked the Court to render an Order on its Request without a hearing. The

Court decided to hold a hearing in order to allow both Parties to present their arguments. Given the

circumstances, the Court decided that the oral proceedings contemplated in Article 74, paragraph 3,

of the Rules of Court should be brief and held on rather short notice, on 15 May 2017, today.

I note the presence before the Court of the Agents and Counsel of the two Parties. The Court

will hear India, which has submitted the Request, this morning until 11.30 a.m. It will hear

Pakistan this afternoon from 3 to 4.30 p.m. The hearings on India’s Request for the indication of

provisional measures will be closed at the conclusion of this afternoon’s session.

For the purposes of these oral arguments, each of the Parties will have available to it a full

ninety minute sitting. India may, if required, avail itself of a short extension beyond 11.30 a.m. this

morning, in view of the time taken up by the opening part of these oral proceedings. The Parties

are of course not required to use the full amount of time allotted to them.

Before giving the floor to the Agent of the Republic of India, Dr. Deepak Mittal, I wish to

draw attention to Practice Direction XI, which states, inter alia, that Parties should

“[i]n their oral pleadings on requests for provisional measures . . . limit themselves to
what is relevant to the criteria for the indication of provisional measures as stipulated
in the Statute, Rules and jurisprudence of the Court. They should not enter into the
merits of the case beyond what is strictly necessary for that purpose.”

I now call upon Dr. Deepak Mittal, Agent of the Republic of India. - 11 -

Mr. MITTAL:

Introductory Statement with brief facts of the case

Introduction

1. Mr. President, and Honourable Members of the Court, it is indeed a great honour for me to

appear today before this august Court on behalf of the Republic of India as India’s Agent, at the

oral hearing on India’s request for the indication of provisional measures in the proceedings

instituted by India against the Islamic Republic of Pakistan on 8 May 2017. This case concerns an

Indian national, Mr. Kulbhushan Sudhir Jadhav (hereinafter “Mr. Jadhav”), who has been awarded

death sentence by a military court in Pakistan in egregious violation of the rights of consular access

guaranteed by Article 36, paragraph 1, of the Vienna Convention on Consular Relations of 1963

(hereinafter “Vienna Convention”).

2. At the outset, I would like to thank the Court and the President for the timely decision and

action to exercise the powers conferred upon him under Article 74, paragraph 4, of the Rules of

Court and send an urgent communication on 9 May 2017 to the Prime Minister of the Islamic

Republic of Pakistan calling upon the Government of Pakistan to act in such a way as will enable

any order the Court may make on India’s request for the indication of provisional measures to have

its appropriate effects.

3. Mr. President, Members of the Court, the fact that the hearing is taking place today, within

seven days of the institution of proceedings by India, is testament to the recognition of the urgency

by the Court in the case of an innocent Indian national Mr. Jadhav who, incarcerated in Pakistan for

more than a year on concocted charges, deprived of his rights and protection accorded under the

Vienna Convention, being held incommunicado without contact with his family and the home

State, is facing imminent execution. All notions of human rights now considered by the global

community as basic to behaviour in civilized nations, have been thrown to the winds.

4. By this timely action by the President and the Court, this institution has provided succour

not just to India and to its beleaguered national and his family, but also has given hope to

1.25 billion people of India and hope to the old mother and father of the innocent Indian national - 12 -

that justice would be meted out to their innocent son by this highest seat of justice and a precious

life will be saved.

5. Today, accompanied by my colleagues, I appear before the Court, on behalf of the

Republic of India, with the hope that the Court would indicate provisional measures so that the

death sentence, which has been awarded to Mr. Jadhav through a farcical trial in a Pakistan military

court, in violation of the rights guaranteed to Mr. Jadhav and India under Article 36, paragraph 1,

of the Vienna Convention, would be set aside and not carried out pending final decision of the

Court on India’s Application.

6. I take this opportunity to introduce the Members of my delegation. They are:

(i) Dr. V.D. Sharma, Co-Agent for the Republic of India;

(ii) Mr. Harish Salve, Counsel;

(iii) Ms Kajal Bhat, Adviser;

(iv) Ms Chetna N. Rai, Junior Counsel.

Brief facts

7. I would now present brief facts of the case, which would be further elaborated upon

during the hearing.

8. India was informed on 25 March 2016 that an Indian national was allegedly arrested on

3 March 2016. India, on that very day, sought consular access to the said individual. The request

did not evoke any response. On 30 March 2016 India sent a reminder reiterating the request for

1
consular access at the earliest. Despite a number of such reminders for consular access sent by

India, there has been no response and all these requests fell on deaf ears.

2
9. Meanwhile, on 23 January 2017, India received from Pakistan a request for assistance in

the investigation process. Subsequently, on 21 March 2017, almost a year after India’s first request

for consular access, Pakistan formally communicated to India that consular access to Mr. Jadhav

“shall be considered in the light of Indian side’s response to Pakistan’s request for assistance in

1Annex 1 to India’s Application, tab 1 of judges’ folder (Notes Verbale issued by India).

2Annex 2 to India’s Application, tab 2 of judges’ folder.
3
Annex 3 to India’s Application, tab 3 of judges’ folder. - 13 -

4
investigation process . . .”. India responded that consular access would be an essential prerequisite

in order to verify the facts and understand the circumstances of Mr. Jadhav’s presence in Pakistan.

5
10. On 10 April 2017, India learnt from press reports that Pakistan proceeded to have a

military trial against Mr. Jadhav and he was sentenced to death purportedly on the basis of a

confessional statement and that this sentence was confirmed by the Chief of the Army Staff of

Pakistan. Ironically, later in the day (10 April 2017), after the death sentence had been awarded and

6
confirmed, India received a Note Verbale from Pakistan reiterating the condition for considering

consular access in return for India providing assistance in the investigation process. India

responded the same day highlighting that the offer of conditional grant of consular access after the

award and confirmation of death sentence reflected the farcical nature of the proceedings and so

called trial by a Pakistan military court against Mr. Jadhav.

8
11. Despite request by India, Pakistan has not provided any information or documents,

including the charge-sheet, proceedings of the Court of Inquiry, the summary of evidence, the

judgment. Request for appointment of a defence lawyer for Mr. Jadhav has also not elicited any

response.

12. The mother of Mr. Jadhav, even in the absence of any document, submitted an appeal to

the Court of Appeal and a petition to the Federal Government of Pakistan. This appeal was filed

even though it was unable to address any of the issues that may have been put against Mr. Jadhav

in the judgment and order of conviction. It was an act of desperation by grieving parents.

13. The parents of Mr. Jadhav applied for visa on 25 April 2017 to travel to Pakistan. There

has been no response.

9
14. The Minister of External Affairs of India has written to the Advisor to the Prime

Minister of Pakistan on Foreign Affairs on 27 April 2017 for his personal intervention in the

matter, but there has been no response.

4Annex 1 to India’s Application, tab 1 of judges’ folder (Note Verbale dated 31 March 2017).

5Annex 4 to India’s Application, tab 4 of judges’ folder.

6Annex 5 to India’s Application, tab 5 of judges’ folder.
7
Annex 1 to India’s Application, tab 1 of judges’ folder (Note Verbale dated 10 April 2017).
8Annex 1 to India’s Application, tab 1 of judges’ folder (Note Verbale dated 19 April 2017).

9Annex 8 to India’s Application, tab 8 of judges’ folder. - 14 -

15. All that we know is what we have seen in the media in Pakistan. The Pakistan officials

have been reported as having said clearly that Mr. Jadhav would not be provided consular access.

16. Mr. President, Members of the Court, India believes that the farcical nature of the

proceedings and unjust trial by a Pakistan military court, in egregious violation of the rights of

consular access under the Vienna Convention, has led to serious miscarriage of justice. It is clear

that Mr. Jadhav has been denied the right to be defended by a legal counsel of his choice. He has

not been informed of his right to seek consular access. His conviction and death sentence appears

to be based upon “confession” taken in captivity, without proper legal representation and in the

absence of consular access sought by India.

17. If we closely follow the reports in the media in Pakistan, we can get the sense that an

increasing number of death sentences awarded by the military courts in Pakistan have been carried

out after 10 April 2017, that is when the death sentence to Mr. Jadhav was confirmed. In fact, over

the past one month, 18 such executions have been reported through press releases issued by Inter

Services Public Relations  the military spokesman  of Pakistan. In such circumstances,

including where there is no response to the requests made through diplomatic channels, there is an

immediate threat that the death sentence against Mr. Jadhav may be carried out even before India

has the opportunity to be heard and the Court has the chance to consider the merits of the case, and

thus, causing irreparable prejudice to the rights of India and Mr. Jadhav.

Request

18. Mr. President and Members of the Court, the Republic of India has invoked the

jurisdiction of the Court and sought provisional measures.

19. My colleagues will elaborate further on this.

20. I would now request the Court to invite Dr. V.D. Sharma, Co-Agent for the Republic of

India to make his submissions.

Thank you.

1Tab 13 of judges’ folder. - 15 -

Le PRESIDENT: Merci, Monsieur. Avant de donner la parole au coagent de la République

de l’Inde, M. Sharma, je demanderai aux plaideurs de bien vouloir ne pas parler trop vite, de

manière à permettre aux interprètes de faire leur travail de traduction dans l’autre langue officielle

de la Cour. Je les en remercie d’avance. Monsieur Sharma, coagent de la République de l’Inde,

vous avez la parole.

Mr. SHARMA:

1. Mr. President, esteemed Members of the Court, it is a great honour for me to appear

before this Court as Co-Agent of the Republic of India in the case concerning the violation by the

Islamic Republic of Pakistan of the Vienna Convention on Consular Relations, 1963.

2. I propose to devote my observations to the key issues which would be addressed in

elaboration by my colleague Mr. Harish Salve concerning violation by Pakistan of the rules of

international law, which led to the dispute at hand; justification for the grant of urgent provisional

measures; and this Court’s jurisdiction.

3. Now, Mr. President, I draw your attention to paragraph 4 of my statement in front of you.

4. Mr. President, Members of the Court, the Convention sets up, among other things,

standards of conduct concerning consular relations between States, with the view to contribute to

the development of friendly relations among them. The provisions under Article 36 of the

Convention specifically confer rights of consular access and communication upon the sending

States and their nationals, who may be arrested, detained or put in prison in the receiving State.

5. These provisions were interpreted by this Court in the LaGrand case (Germany v. United

States) (Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I)), and reiterated in

the Avena case by this Court; what this Court said in LaGrand and described Article 36,

paragraph 1, as “an interrelated regime designed to facilitate the implementation of the system of

consular protection” and set out again the scheme of Article 36.

6. Mr. President, Members of the Court, Article 36, which has been recognized as a right of

the national of a State and also the right of the State itself, is a vital safeguard that ensures a

modicum of fairness in the administration of the justice system of a State in its application to - 16 -

nationals of another State. Its provisions are sacrosanct, and its violation entails serious

consequences.

7. Mr. President, Members of the Court, Pakistan failed to comply with all its obligations

under Article 36. It denied India its right to consular access to its national. India has been seeking

consular access incessantly since March 2016 when India was informed of the detention of

Mr. Kulbhushan Sudhir Jadhav by Pakistan.

Jurisdiction of the Court

8. Touching upon the jurisdiction of this Court in the present case, the attention is drawn to

Article 36 (1) of the Statute of the Court which confers upon the Court the jurisdiction to decide

“all matters specially provided for . . . in treaties and conventions in force”. Therefore, India relies

upon the jurisdiction of this Court under paragraph 1 of Article 36 of the Statute of this Court. India

asserts that the declarations of Pakistan and India made under paragraph 2 of Article 36 of the

Statute have no relevance to this case.

9. India and Pakistan are members of the United Nations and thus ipso facto parties to the

Statute of the International Court of Justice. They are also a party to the Vienna Convention and its

Optional Protocol concerning Compulsory Settlement of Disputes.

10. Article I of the Optional Protocol provides that “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”.

11. I now Mr. President and Members of the Court draw your attention to paragraph 12 of

my statement.

12. India and Pakistan are both Parties to the Consular Convention and the Optional Protocol

and thus this dispute lies within the jurisdiction of this Court and has been brought accordingly

before the Court by India.

2008 Bilateral Agreement on Consular Access

13. Now, Mr. President, I draw your kind attention to paragraph 14 of my statement. - 17 -

14. There is a bilateral agreement between India and Pakistan that seeks to supplement in

some respects Article 36 of the Vienna Convention. India does not seek to rely upon this Bilateral

Agreement.

15. In any event, Mr. President, Members of the Court, the Bilateral Agreement is irrelevant

to the present proceedings since, it can only supplement the Vienna Convention. It cannot modify

the Vienna Convention, nor does its text or content suggest that purports to dilute Article 36 of the

Vienna Convention. I mention this only because in one of their press communiqués, Pakistan

alluded to this Bilateral Agreement.

16. Moreover, this 2008 Agreement, Mr. President, is not registered with the United Nations

under Article 102 of the Charter, and therefore under paragraph 2 of Article 102 this Agreement

cannot be invoked before any organ of the United Nations. Therefore Pakistan cannot invoke this

Agreement before this Court, undoubtedly, this Court being the principal judicial organ of the

United Nations.

17. Thank you Mr. President. May I now request you to invite Mr. Harish Salve, who will

present India’s observations in detail.

Le PRESIDENT: Merci, je donne la parole à M. Harish Salve, conseil pour la République

de l’Inde.

Mr. SALVE:

1. Honourable President, esteemed Members of this Court, it is once again an honour for me

to appear before this Court to represent my country as its counsel. I express, on behalf of my

country, gratitude for having fixed this hearing at such a short notice. I want to commence by

assuring this Court that the situation in which we find ourselves is grave, it is urgent, and it is for

that reason that we have sought the indulgence of this Court for a hearing for the indication of

provisional measures.

2. I shall, Mr. President and esteemed Members of the Court, first give you a brief overview

of the facts, and then address you on the following four issues:

(i) the jurisprudence of this Court as to the principles for indication of provisional measures;

(ii) the prima facie case as to the jurisdiction of this Court to entertain India’s Application; - 18 -

(iii) the prima facie case of violation of the Vienna Convention on Consular Relations 1963;

and, finally, I would state,

(iv) the nature of the provisional measures that India seeks.

Overview

3. The Republic of India  I shall be referring to it as “India”  has moved this Application

under Article 40 of the Statute of this Court seeking reliefs from this Court to remedy the egregious

violations of the Vienna Convention on Consular Relations, 1963  I shall be referring to it as the

“Vienna Convention”. It is against the Islamic Republic of Pakistan, who I shall be referring to as

“Pakistan”.

4. An Indian national, Mr. Kulbhushan Sudhir Jadhav  whom I shall refer to as

“Jadhav”  was allegedly “arrested” on 3 March 2016 and has been in custody. He was tried by

a military court in Pakistan, and has been convicted and sentenced to death, which sentence was

confirmed on 10 April 2017.

5. It is not in dispute that India has made innumerable requests since March 2016 for

consular access. Pakistan, admittedly, did not provide consular access. India claims that the rights

of the individual and the rights of India, under Article 36 of the Vienna Convention have been

violated all along from the time of the alleged “arrest” of Jadhav.

6. Pakistan did not inform the consular post of India about the arrest of Jadhav at the time of

the alleged arrest, and India received information of this arrest only on 25 March 2016. Despite

India’s requests, Pakistan has denied consular officers the right to visit Jadhav. They have refused

to communicate, to the consular officers, the charges against Jadhav and the evidence and other

material adduced against him in the so-called trial so as to enable them to arrange for his legal

representation. The denial of access to Jadhav has resulted in consular officers of India being

unable to arrange for the legal representation of Jadhav, and to assure themselves also of his safety

and his well-being in custody.

7. In a press briefing of 17 April 2017, the Director General of Inter Services Public

Relations allegedly asserted that Jadhav was not entitled to consular access. We have a copy of the

1India’s position is that he was kidnapped from Iran. - 19 -

press report which we annexed to the Application as Annex 7 , which refers to this briefing but not

13
to this assertion. We have now another press report in a vernacular newspaper “Jehan Pakistan”

of 18 April 2017 which evidences this assertion.

8. India, Mr. President and esteemed Members of the Court, has applied to this Court for

redress of its grievances relating to these violations of the Vienna Convention, and by way of relief

has sought measures that would constitute adequate restitutio in integrum.

9. Until such time as the Application filed by India can be adjudicated upon by this Court,

India has also sought indication of provisional measures that would ensure that the sentence is not

executed. If the provisional measures are not granted, the Application would be rendered

infructuous, and it would bring about a situation that the Court may find itself unable to grant

effective relief as sought by India.

Principles for the grant of provisional measures

10. I now address you, Mr. President and esteemed Members of the Court, on the principles

for the grant of provisional measures. Article 41 (1) of the Statute of this Court vests the Court

with the “power to indicate, if it considers that circumstances so require, any provisional measures

which ought to be taken to preserve the respective rights of either party” pending a final judgment

in the case. In its Judgment in a case commonly referred to as the LaGrand case, this Court

clarified that orders of provisional measures pursuant to Article 41 establish binding obligations . 14

11. The Court formulated the threshold for provisional measures in Costa Rica v. Nicaragua

in terms of what I call the plausibility standard. This Court said that provisional measures would

15
be granted “if it is satisfied that the rights asserted by a party are at least plausible” . Finding that

the rights claimed by Costa Rica were plausible, this Court went on to observe:

“Whereas, at this stage of the proceedings, the Court cannot settle the Parties’
claims to sovereignty over the disputed territory and is not called upon to determine
once and for all whether the rights which Costa Rica wishes to see respected exist, or

whether those which Nicaragua considers itself to possess exist; whereas, for the

12Application of India, Ann. 7 and judges’ folder, tab 7.

13Judges’ folder, tab 14.
14
LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109.
15Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional

Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), p. 6, para. 53. - 20 -

purposes of considering the Request for the indication of provisional measures, the
Court needs only to decide whether the rights claimed by the Applicant on the merits,
16
and for which it is seeking protection, are plausible” .

12. The standard of plausibility was reiterated in Belgium v. Senegal where the Court

observed that:

“Whereas at this stage of the proceedings the Court does not need to establish
definitely the existence of the rights claimed by Belgium or to consider Belgium’s

capacity to assert such rights before the Court; and whereas the rights asserted by
Belgium, being grounded in a possible interpretation of the Convention against
Torture, therefore appear to be plausible” . 17

13. There have been three instances in which this Court has entertained applications arising

from allegations of breach of Article 36 of the Vienna Convention.

14. The case of Paraguay v. United States of America, which is the first of the cases relating

to the violation of the Vienna Convention, the request of Paraguay for indication of provisional

measures was decided by this Court on 9 April 1998. Paraguay instituted proceedings against the

United States of America on 3 April 1998 on allegations of violations of the Vienna Convention,

and sought indication of provisional measures by way of an order by the Court, that the

Government of the United States take measures necessary to ensure that the Paraguay national in

relation to whom the proceedings were brought be not executed.

15. This Court enunciated the standards by which such a request for provisional measures

would be decided. It observed that

“on a request for the indication of provisional measures the Court need not, before

deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on
the merits of the case, but whereas it may not indicate them unless the provisions
invoked by the Applicant appear, prima facie, to afford a basis on which the
jurisdiction of the Court might be founded.” 19

This Court further indicated that the purpose of the power to indicate provisional measures is

“to preserve the respective rights of the parties pending its decision, and presupposes

that irreparable prejudice shall not be caused to rights which are the subject of a
dispute in judicial proceedings; whereas it follows that the Court must be concerned
to preserve by such measures the rights which may subsequently be adjudged by the

16
Ibid., para. 57.
17Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, I.C.J. Reports 2009, p. 152, para. 60.

18Case concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America),
Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998, p. 251, para. 6.
19
Ibid, para. 23. - 21 -

Court to belong either to the Applicant, or to the Respondent, and whereas such
20
measures are only justified if there is urgency” .

The Court found that the circumstances of the case required it to indicate as a matter of urgency,

provisional measures as provided for by Article 41 of its Statute.

16. The second case relating to violation of the Vienna Convention was brought by Germany

against the United States of America (known and cited as the LaGrand case). On 3 March 1999,

this Court indicated provisional measures pursuant to an Application filed by Germany. This Court

reiterated the principle that generally interim measures would not be ordered in the absence of

21
“irreparable prejudice . . . to rights which are the subject of dispute . . .” . The Court held that the

execution of the German National Mr. Walter LaGrand “would cause irreparable harm to the rights

claimed by Germany in this particular case” . This Court also observed that “measures indicated

by the Court for a stay of execution would necessarily be provisional in nature and would not in

any way pre-judge findings the Court might make on the merits” . The Court indicated that United

States of America should take all measures to ensure that Mr. Walter LaGrand is not executed

pending the final decision in the proceedings before the Court.

17. And the third case relating to violation of the Vienna Convention was brought by Mexico

against the United States of America  known as the Avena case. Mexico sought relief in relation

to 54 Mexican nationals who were on death row in the United States, and in respect of whom

Mexico asserted that they were arrested, detained, tried, convicted and sentenced to death by

competent authorities of the United States in proceedings which did not comply with Article 36 of

the Vienna Convention. The relief that was sought by Mexico was in the nature of restitutio in

integrum.

18. The application was filed by Mexico on 9 January 2003, for indication of provisional

measures, and the apprehension on which these measures were sought was that the three nationals

20Ibid., para. 35.

21LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports
1999 (I), p. 15, para. 23.
22
Ibid., para 24.
23
Ibid., para 27. - 22 -

could be executed within the next six months, and many others before the end of 2003, and one of

24
them by 14 February 2003 .

19. This Court said that it “‘must be concerned to preserve . . . the rights which may

subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent’ . . .

without being obliged at this stage of the proceedings to rule on those rights” . 25

20. The Court added that its power to indicate provisional measures is “intended to preserve

the respective rights of the parties pending its decision, and presupposes that irreparable prejudice

shall not be caused to rights which are the subject of a dispute in judicial proceedings” (ibid.,

pp.14-15, para. 22)” , and that provisional measures are indicated “‘pending the final decision’ of

the Court on the merits of the case, and are therefore only justified if there is urgency in the sense

that action prejudicial to the rights of either party is likely to be taken before such final decision is
27
given”. The Court cited its earlier order in Finland v. Denmark .

21. This Court reiterated that for indication of provisional measures, the Court did not need

to satisfy itself, before deciding whether to indicate such measures, that it had jurisdiction on the

merits of the case. The test applied by the Court was the existence of a prima facie basis on which

the jurisdiction might be founded. The Court noted the position of both parties, and observed that

“whereas there is thus a dispute between the Parties concerning the rights of Mexico
and of its nationals regarding the remedies that must be provided in the event of a
failure by the United States to comply with its obligations under Article 36,

paragraph 1, of the Vienna Convention; whereas that dispute belongs to the merits and
cannot be settled at this stage of the proceedings . . .” . 28

22. The Court reiterated

“whereas the Court, when considering a request for the indication of provisional

measures, ‘must be concerned to preserve . . . the rights which may subsequently be
adjudged by the Court to belong either to the Applicant or to the Respondent’ (Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),

24Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of
5 February 2003, I.C.J. Reports 2003, p. 81, para. 11.

25Ibid., para. 48
26
Ibid., para. 49
27Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991,

I.C.J. Reports 1991, p. 17, para. 23.
28Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of
5 February 2003, I.C.J. Reports 2003, p. 88, para. 46. - 23 -

Provisional Measures, Order of 15 March 1996, ICJ Reports 1996 (I), p. 22, para. 35) 29
without being obliged at this stage of the proceedings to rule on those rights” .

23. Rejecting the suggestion that there was no urgency, as contended for by the United

States, for no dates of execution had been set, and that there were rules and time-limits governing

the granting of clemency, this Court found that “the fact that no such dates have been fixed in any

of these cases before the Court is not per se a circumstance that should preclude the Court from

indicating provisional measures” . The Court found that three of the nationals were

“at risk of execution in the coming months, or possibly even weeks; whereas the

execution would cause irreparable prejudice to any rights that may subsequently be
adjudged by the Court to belong to Mexico; and whereas the Court accordingly
concludes that the circumstances require that it indicate provisional measures to
31
preserve those rights . . .” .

In respect of the others who were on death row but not in the same position as the three persons

identified in paragraph 55 quoted above, this Court said that “The Court may, if appropriate,

indicate provisional measures under Article 41 of the Statute in respect of those individuals before

it renders final judgement in this case” 32 and the Court said that it would decide the case with

expedition.

24. This Court in paragraph 55 of the Avena used the expression “coming months” which

suggests to me that the Court felt that an impending execution in the next six months, which was

33
the period indicated by Mexico , created a situation of sufficient urgency that justifies indication

of provisional measures.

Urgency

25. And now I move to, Mr. President and esteemed Members of the Court, urgency in the

present case. It is incontrovertible that considering the state of affairs in relation to Jadhav’s arrest

34
and trial, and in the face of the communication by Pakistan to this Court on 12 May 2017 , it is

29
Ibid., para. 48.
30Ibid., para. 54.

31Ibid., para. 55.
32
Ibid., para. 56.
33
Noticed in paragraph 11 of the Judgment.
34Judges’ folder, tab 12. - 24 -

imperative that to prevent irreparable prejudice being caused to India and Jadhav, provisional

measures would need to be indicated by the Court.

26. The communication of 12 May purports to suggest that there are multiple legal avenues

available to Jadhav, and presumably the sentence will not be executed during this period. Implicit

in this, is the acceptance of the reality that in case of a death sentence, the execution of the sentence

cannot obviously be allowed during such time that this Court is seised of an application for redress

of violations of the Vienna Convention. The communication, while suggesting the availability of

“remedies”, fails to provide a clear assurance that until this Court is in seisin of this Application,

the sentence will not be executed. This ambivalence is, Mr. President and esteemed Members of the

Court, without more, a good reason for indication of provisional measures.

27. The communication aforementioned refers to the criminal appeal. It does not clarify

whether Jadhav has indeed filed such an appeal. Jadhav’s mother has filed an appeal that was

transmitted through diplomatic channels on 26 April 2017 . The appeal has been filed as a

measure of desperation, without knowing the charges against Jadhav, the evidence against him

which has been relied upon to convict him, and without having access even to the judgment and

order of conviction and sentence. Visa applications filed by his parents on 25 April 2017 are still

pending. The information placed in public domain by Pakistan suggests that the Court of Appeal

had already been constituted. It is imminent that the mother’s appeal, for whatever it is worth,

would be disposed of shortly. The communication of 12 May 2017 does not indicate any timeline

in relation to the disposal of the appeal.

28. The Communication then goes on to mention the existence of provisions under which

Jadhav may seek clemency, first from the Chief of Army Staff of Pakistan and then from the

President of the Islamic Republic of Pakistan. It is not known if Jadhav will seek clemency. Even if

he does, its result is, it can fairly be assumed a foregone conclusion. It is, I submit Mr. Chairman,

Mr. President and esteemed Members of the Court, I submit with all seriousness, it is facetious, on

the one hand to allege in public pronouncements including at the level of the Advisor to the Prime

3Application of India, Annex 1 and judges’ folder, tab 1. - 25 -

Minister, that Jadhav has been convicted for serious offences against the State, and on the other

hand to point out remedies by way of seeking clemency, in its communication to this Court.

29. In its communication of 12 May 2017, Pakistan has not suggested that there is any

inaccuracy in Annex 6 filed by India. The statement of the Advisor to the Prime Minister refers to

36
Jadhav’s right to file “a mercy petition” , as he calls it but in the same breath makes observations

that merit reproduction verbatim:

“let me re-emphasise two points: first, all political parties are unanimous that the
award of death penalty after due process and overwhelming evidence to a foreign spy,
who was not only carrying out subversive activities in Pakistan but actually promoting

terrorism, is the correct decision. Second, the whole nation is solidly united against
any threat to Pakistan’s security” . 37

30. India has also annexed a press report of 18 April 2017 setting out an interview given by

the Director General of Inter Services Public Relations  referred to as a military spokesman. As

per this press report, the military spokesman said that the case was moving towards the appeal

process, and would be heard by a two-star general, and further that “[h]e, however, did not see any

chance of the verdict being overturned. ‘The verdict is based on incontrovertible evidence and the

Army will fully defend it,’ he said, recalling the decision at the corps commanders’ conference, that

38
there could be no compromise on anti-state acts.”

31. India has also enclosed, by way of Annex 9, the record of press briefing by the

spokesperson of the Ministry of Foreign Affairs, on 20 April 2017. Responding to a question, the

spokesperson made baseless, contrived and propaganda driven allegations against Jadhav and

India. He said,

“Commander Jadhav, who is responsible for espionage, sabotage and terrorism
in Pakistan, was tried according to the law of the land, in a fully transparent manner

while preserving his rights, as per the Constitution of Pakistan. His sentence is based
on credible, specific evidence proving his involvement in espionage and terrorist
activities in Pakistan, resulting in the loss of scores of precious lives of Pakistanis.” 39

32. India refutes these allegations. India’s position has been and continues to be that Jadhav

was kidnapped from Iran and appears to have been framed based upon a confession extracted from

36
The expression used in the communiqué at Annex 6 of the Application of India and judges’ folder, tab 6.
37Application of India, Annex 6 and judges’ folder tab 6.

38Application of India, Annex 7 and judges’ folder, tab 7.
39
Application of India, Annex 9 and judges’ folder, tab 9. - 26 -

him when he was in military custody. The allegations of Pakistan lack credibility, particularly in

the absence of consular access being provided by which India would have been able to understand

the circumstances of Jadhav’s presence in Pakistan, secure first-hand information about Jadhav

while in military custody, and secure information about the charges against him, the evidence

against him, the order of conviction and sentence. India could also have taken measures to ensure

appropriate legal representation for him.

33. In any event, in a case of egregious violations of the Vienna Convention, the possibility

of filing applications for clemency do not present a sufficient means of review and reconsideration.

34. However, the allegations being made by Pakistan establish that the suggestion in the

communication of 12 May 2017 about the availability of a remedy by way of “clemency” is not

worthy of credence for the reason that any such process would be a chimera.

35. Finally, it cannot be assumed that Jadhav will wait until the 60th day to seek clemency

from the Chief of Army Staff, and then up to the 90th day after the decision on the prior petition, to

seek clemency from the President of the Islamic Republic of Pakistan. It is not known whether

Jadhav will at all seek clemency, in the prevailing circumstances. Secondly, if he is so minded to

seek clemency, it cannot be assumed that he will wait until the last day available. Thus, even if

Jadhav does decide to go this route, the period could be much lesser than 90 days plus 60 days as is

sought to be suggested in the communication.

36. It bears emphasis that Pakistan does not suggest in the communication of 12 May 2017

that there is any judicial remedy available to Jadhav once the appeal is decided. India’s case and its

Application  as I will explain later  is that throughout the period of his incarceration in

Pakistan and in the course of his trial, Jadhav has been denied consular access. India seeks

restitution by way of annulment of the verdict, in addition to other reliefs. After the appeal there is

no judicial remedy available for Jadhav in which he could assail the findings and the conclusions of

the military court. In those circumstances, for the indication of provisional measures, what is

relevant to assess the urgency, is the potential lapse of time inevitable in pursuing steps in the

criminal justice process system. The availability of a right to seek a clemency is not relevant. This

is particularly so in the facts and circumstances of the case, where any right to a petition for

clemency is illusory. - 27 -

37. It is, therefore, absolutely imperative that in order to prevent irreparable prejudice, this

Court would indicate provisional measures to be in place until such time as India’s Application can

be heard and decided by this Court.

Prima facie case  jurisdiction of the Court

38. I will now briefly address you, Mr. President and esteemed Members of the Court, on

the prima facie case on the jurisdiction of this Court. The standard enounced by the Court in

relation to arriving at a prima facie satisfaction as to the existence of jurisdiction, at the stage of

deciding upon a request for indication of provisional measures, is that the Court “need not finally

satisfy itself, before deciding whether or not to indicate such measures, that it has jurisdiction on

the merits of the case, yet it may not indicate them unless the provisions invoked by the Applicant

appear, prima facie, to afford the basis on which the jurisdiction of the Court might be . . . [is]
40
founded” .

39. The principles are succinctly summarized in the commentary in the leading treatise on

41
The Statute of the International Court of Justice edited by Zimmermann . It states that,

“Since the Icelandic Fisheries cases, the Court’s jurisprudence has been
constant in requiring that the instrument(s) invoked by the parties conferring
jurisdiction ‘appears, prima facie, to afford a possible basis on which the jurisdiction
42
of the Court might be founded”.
43
40. The Application filed by India is based on Article 36 of the Vienna Convention . India

bases its assertion of the existence of jurisdiction on Article I of the Optional Protocol Concerning

the Compulsory Settlement of Disputes 1963, which accompanies the Vienna Convention  I shall

refer to it as the “Optional Protocol”.

41. Article I of the Optional Protocol reads thus:

40
Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of
5 February 2003, I.C.J. Reports 2003, p. 87, para. 38; LaGrand (Germany v. United States of America), Provisional
Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 13, para. 13; case concerning the Vienna Convention on
Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports
1998, p. 255, para. 23.
41
The Statute Of The International Court of Justice  A Commentary, Second Edition, edited by Zimmerman,
Tomuschat, Oellers  Frahm and Tams.
42
The Statute Of The International Court of Justice  A Commentary, Second Edition, edited by Zimmerman,
Tomuschat, Oellers  Frahm and Tams, p. 1039.
43The prima facie case on violation of Article 36 of the Vienna Convention is in the next section. - 28 -

“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”.

42. The language of Article I of the Optional Protocol admits of no ambiguity. The binary

requirements for the existence of jurisdiction are:

(a) The existence of disputes that arise out of the interpretation, or the application of the

Convention; and

(b) The party that brings an application before the Court raising such a dispute, should be a party to

the Optional Protocol.

43. Indisputably, on 8 May 2017 (when India presented its Application) India and Pakistan

were, and continue to be, parties to the Vienna Convention on Consular Relations as well as to the

Optional Protocol. On 12 May 2017, communication by Pakistan does not suggest to the contrary.

44. India asserts in its Application that Pakistan has not provided consular access to Jadhav

all along from the time of his alleged arrest until the present despite repeated entreaties by India.

Pakistan offered no explanation in its exchanges with India, as to the reason why it has not

provided consular access. Whatever may be the reasons that Pakistan may proffer in defence of its

acts and omissions, disputes have arisen between India and Pakistan, when India asserts, and

Pakistan presumably would deny, violations of the Vienna Convention. These disputes would

relate, if not entirely, substantially to the interpretation of the Vienna Convention and to its

application to the facts of the case.

45. India asserts that the Vienna Convention admits of no exceptions. India has not been

given a copy of the charges or the verdict, and is therefore unable to comment on the allegations

levelled against Jadhav. From the information in public domain, such as the public statements in

Annex 6 and Annex 7 44 to India’s Application, it appears that the charges were grave and

suggestive of acts of terrorism. India refutes these charges. But the merits of the case, Mr. President

and esteemed Members of the Court, I remind myself, are not material for these proceedings. What

is relevant as a principle of law, is that need for a wholesome compliance with procedural

4Judges’ folder, tabs 6 and 7. - 29 -

safeguards is greater where the charges are serious, and the sanction upon conviction is as severe as

capital punishment.

46. As this Court said in Paraguay v. United States of America,

“Whereas the issues before the Court in this case do not concern the entitlement

of the federal states within the United States to resort to the death penalty for the most
heinous crimes; and whereas, further, 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
45
criminal appeal;”
46
This principle was also reiterated in Avena and LaGrand .

47. It bears repetition that, where the national of another State is accused of acts of terrorism,

and which if established carry the sanction of capital punishment, and the trial is by a military

court, the need for consular access and the opportunity to arrange for legal representation in the

course of the trial, as covenanted in the Vienna Convention, is all the more greater. An Indian

national was in military custody, he was made to confess, and then he was tried for offences and

awarded death penalty. The prejudice caused by the egregious breach of the Vienna Convention

assurances provided for in Article 36 is writ large and does not merit any further elaboration.

48. India asserts that the breach of the Vienna Convention in the facts of the present case, is

fatal to the trial of Jadhav. In its communication of 12 May 2017, Pakistan states that it “rejects the

contents of the Request and [of] the Application as providing any basis for [this] Court to exercise

jurisdiction whether by way of preliminary measures relief, or otherwise” . 47

49. India bases its Application on the jurisdiction of the Court conferred by Article 36,

paragraph 1, of the Statute of the Court, and Article I of the Optional Protocol Concerning the

Compulsory Settlement of Disputes, 1963.

50. The binary conditions required by the Optional Protocol are satisfied. That being so, this

Court would have jurisdiction under Article 36, paragraph 1, of the Statute of this Court. India has

45Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America),
Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998, p. 248, para. 38.

46Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of
5 February 2003, I.C.J. Reports 2003, p. 77, para. 48; LaGrand (Germany v. United States of America), Provisional
Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 9, para. 25.
47
Judges’ folder, tab 12. - 30 -

thus provided, I submit, sufficient basis for this Court to come to the conclusion, definitely prima

facie that it has jurisdiction.

Jurisdiction under Article 36, paragraph 1

51. I now move, Mr. President and esteemed Members of the Court, to addressing you on

the jurisdiction of this Court, under Article 36 (1). The compulsory jurisdiction of this Court under

Article 36 (1) has three dimensions. Jurisdiction exists:

(a) in respect of all cases which parties refer to it,

(b) in respect of all matters specially provided for in the Charter of the United Nations, or

(c) in respect of all matters specially provided for in treaties and conventions in force.

52. The Optional Protocol specially provides for resolution of disputes relating to the Vienna

Convention  its language is mandatory. It provides that all disputes arising out of the

interpretation or application of the Convention “shall lie within the compulsory jurisdiction of the

International Court of Justice”.

53. Article 36, paragraph 2, of the Statute of the Court deals with a declaration by party

states, of the recognition “as compulsory ipso facto and without special agreement, in relation to

any other state accepting the same obligation”. India does not seek to assert jurisdiction for its

Application in paragraph 2 of Article 36 of the Statute. Any reservations made in the declaration

made under Article 36, paragraph 2, are irrelevant for the present case.

54. The construction of Article 36 is no longer res integra. The fact that this Court may have

more than one jurisdictional basis is now well recognized, and where there is a multiplicity of

agreements, it evidences that “contracting Parties intended to open up new ways of access to the
48
Court rather than to close old ways or allow them to cancel each other . . .” .

55. The general principle, where the Court has jurisdiction based on both optional

declarations and compulsory jurisdiction clauses in treaties, is that each title is autonomous and

ranks equally with the others. The commentary in Robert Kolb’s book is illuminating. It says

“Where there are several concurrent titles of jurisdiction, they do not cramp or limit each other’s

4Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, 76, cited in The Law
And Procedure of the International Court of Justice, Fifty Years of Jurisprudence, Vol. II, Hugh Thirlway, p. 1684. - 31 -

effects: on the contrary, they complement and reinforce each other on a cumulative basis.” It says 49

that the reservations in one title of jurisdiction cannot be transposed into the other. The argument

that the “title of jurisdiction resulting from optional declarations has a higher value in the hierarchy

50
than one deriving from a treaty, must be rejected” . The commentary tells us that titles of

jurisdiction remain in existence until either modified or terminated, and it cannot be argued that “a

more restrictive subsequent optional declaration is evidence of the State’s will to submit to the

Court’s jurisdiction in a more limited way, so that a prior and a more widely-worded

compromissory clause must be considered to have undergone a kind of derogation (or vice

versa)” . It is for the “parties themselves to choose the titles of jurisdiction they intend to rely

52
on” . Mr. President, and esteemed Members of the Court, India relies on the Vienna Convention,

the Optional Protocol, and Article 36 (1).

56. The jurisprudence of this Court also concludes this issue. In Electricity Company of Sofia

and Bulgaria case, the Belgian Government relied on declarations of Belgium and Bulgaria

accepting the compulsory jurisdiction of the Court, as also on the Treaty of conciliation, arbitration

and judicial settlement entered into between Belgium and Bulgaria on 23 June 1931. The Bulgarian

Government challenged the jurisdiction of the Court. It was in this case that the Court held that,

“multiplicity of agreements concluded accepting the compulsory jurisdiction is

evidence that the contracting Parties intended to open up new ways of access to the
Court rather than to close old ways or to allow them to cancel each other out with the
ultimate result that no jurisdiction would remain” . 53

57. In Nicaragua v. Honduras, Nicaragua instituted proceedings in respect of a dispute

concerning the alleged activities of armed bands, said to be operating from Honduras. It founded

the jurisdiction of the Court on the American Treaty on Pacific Settlement  known as the “Pact

of Bogotá”, and also the declarations of the two parties. Honduras resisted jurisdiction on the

ground that the dispute was excluded by terms of the Honduran Declaration of 22 May 1986 and

claimed that the declaration would apply to the Pact of Bogotá.

49
The International Court of Justice, Robert Kolb, 2013, p. 583.
50Ibid., p. 585.

51Ibid., p. 586
52
Ibid., p. 589
53Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, 76. - 32 -

58. Honduras relied on the language of Article XXXI of the Pact which opened with the

words, and I quote, because they are important, “In conformity with Article 36, paragraph 2, of the

Statute of the International Court of Justice . . .” 54 Mr. President and esteemed Members of the

Court you will find that no such words are to be found in the Optional Protocol. In the Honduras

case, on the basis of those words, Honduras argued that the declaration made by it under Article 36,

paragraph 2, of the Statute delineated the extent of jurisdiction even under Article XXXI of the

Pact. This argument was rejected by the Court finding that the language of Article XXXI made it

clear that it did not subject itself to the making of any new declaration to be deposited under

Article 36, paragraphs 2 and 4, of the Statute. The Court observed  in paragraph 33  turning to

the Honduran interpretation,

“the Court may observe at the outset that two possible readings of the relationship
between Article XXXI and the Statute have been proposed by the Parties. That Article
has been seen either as a treaty provision conferring jurisdiction upon the Court in

accordance with Article 36, paragraph 1, of the Statute, or as a collective declaration 55
of acceptance of compulsory jurisdiction under paragraph 2 of that same Article.”

59. In that case, the argument by Honduras was based on Article XXXI of the Pact which

expressly referred to Article 36 (2). Significantly, the Court recognized that there could be a treaty

provision, in which event it confers jurisdiction upon the Court in accordance with Article 36,

paragraph 1, of the Statute also. However, while dealing with Article XXXII, the Court noticed that

this Article referred to the jurisdiction of the Court under Article 36, paragraph 1 of the Statute.

60. This issue arose once again in Nicaragua v. Columbia. The Court upheld a challenge to

its jurisdiction under the Pact of Bogotá, in respect of disputes settled by the Pact. Nicaragua

sought to sustain its complaint in relation to these very disputes under Article 36, paragraph 2 of

the Statute. This was rejected by the Court and a challenge to its jurisdiction upheld, on the ground

that to the extent that territories were settled under the Pact, there was no legal dispute between the

parties.

61. Judge Abraham  as the Honourable President then was  in a separate opinion

expressed his view that he found the argument of exclusivity of the Pact convincing. The judgment

5Case Concerning Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 69, para. 20.

55Ibid., para. 33. - 33 -

explained that the observations in the judgment of Electricity Company of Sofia and Bulgaria were

undoubtedly correct as a general rule, but recognized that the general rule, in the words of the

judgment “fails to take account of any of the distinctive characteristics of the Pact of Bogota . . .” . 56

62. Thus, there may be distinctive Pacts, and those would be governed by their own terms,

and where they recognize the jurisdiction of this Court as a mechanism for dispute resolution, this

Court would have the jurisdiction to entertain applications in relation to all such disputes as fall

within such Pacts. And this jurisdiction, Mr. President and esteemed Members of the Court I

submit, would be found in Article 36, paragraph 1, of the Statute.

63. In the ICAO Council case, India moved an application relying upon Article 84 of the

Convention on International Civil Aviation, and Article II of the International Air Services Transit

Agreement. The jurisdictional clauses of the treaties allowed an appeal to the Court from a decision

of the Council. One of the defences raised by Pakistan was that the effect of one of India’s

reservations to her acceptance of the Court’s compulsory jurisdiction under Article 36, paragraph 2,

rendered this Court incompetent to entertain this appeal. The Court rejected this objection holding

that,

“the various objections made to the competence of the Court cannot be sustained,
whether they are based on the alleged inapplicability of the Treaties as such, or of their

jurisdictional clauses. Since therefore the Court is invested with jurisdiction under
those clauses and, in consequence (see paragraphs 14-16 above), under Article 36,
paragraph 1, and under Article 37, of its Statute, it becomes irrelevant to consider the
objections to other possible bases of jurisdiction.” 57

64. The jurisdiction of the Court in three cases cited earlier, relating to violations of the

Vienna Convention were also entertained as disputes in the jurisdiction, the jurisdiction in relation

to which was founded in Article 36, paragraph 1. In LaGrand, the Court proceeded on the footing

that the Application filed by the Federal Republic of Germany for violation of the Vienna

Convention was based on the jurisdiction of the Court under Article 36, paragraph 1 of the Statute

of the Court read with Article 1 of the Optional Protocol. In fact, this position was not challenged

by America.

56Case Concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,
Judgment, I.C.J. Reports 2007 (II), p. 832, Separate Opinion of Judge Abraham, para. 54.
57
Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972,
p. 46, para. 25. - 34 -

65. In Avena, this Court noted that Mexico asserted jurisdiction of the Court under Article 36

paragraph 1 of the Statute and Article 1 of the Optional Protocol.

66. The Agreement on Consular Access 58between India and Pakistan is irrelevant for the

present proceedings. Mr. President and esteemed Members of the Court, I say it is irrelevant for

four reasons:

(a) India does not rely upon the Bilateral Agreement on Consular Access [which it entered into

with Pakistan on 21 May 2008]. This Agreement, as recognized by Article 73 of the Vienna

Convention, was with the object of, and I quote the language of the agreement itself,

“furthering the objective of humane treatment of nationals of either country arrested, detained

or imprisoned in the other country”. Some of the provisions of this Agreement reinforce the

obligations of the Vienna Convention. These are the obligations to immediately notify “any

arrest, detention or imprisonment of any person of the other country . . .” to the High

Commission, and “to expeditiously inform the other of the sentences awarded to the convicted

nationals of the other country . . .”. India does not rely, and does not need to rely on this

Agreement. It bases its claim solely upon the Vienna Convention. India’s claim in its

Application is de hors this Bilateral Agreement.

(b) Article 102 (2) of the United Nations Charter 1945 proscribes invocation of any Agreement,
59
unless it is registered. This Agreement is admittedly not registered .

(c) Article 73 of the Vienna Convention recognizes that the Vienna Convention does not affect

other international agreements in force. It also, however, expressly does not “preclude States

from concluding international agreements confirming or supplementing or extending or

amplifying the provisions thereof”.

(d) Article 41 of the Vienna Convention on the Law of Treaties recognizes and ex-postulates the

established principle of international law that two or more of the parties to a multilateral treaty

may conclude an agreement to modify the treaty between themselves, if the possibility of such

a modification is provided for by the treaty, or the modification in question is not prohibited by

the treaty, and does not relate to a provision, the derogation from which is incompatible with

5Application of India, Ann. 10 and judges’ folder, tab 10.

5Under Article 92 of the Charter, this Court is the principal judicial organ of the United Nations. - 35 -

the effective execution of the object and purpose of the treaty as a whole. Mr. President and

esteemed Members of the Court, I submit that Article 73 of the Vienna Convention recognizes

that there is scope for parties to supplement and amplify the provisions of the Vienna

Convention  it does not, certainly does not, countenance a dilution of the principles

embodied in the Vienna Convention. But I repeat, we do not rely on this bilateral agreement.

Prima facie case of violation of Vienna Convention

67. I now move onto, Mr. President and esteemed Members of the Court, the next segment

of my submission, which is a prima facie case of violation of the Vienna Convention. The facts set

out in the Application, and which are supported by the exchanges between India and Pakistan,

establish more than just a prima facie violation of the Vienna Convention.

68. On 25 March 2016, India was informed that Jadhav was allegedly arrested on 3March,

when the Foreign Secretary of Pakistan raised the matter with the Indian High Commissioner in

60
Islamabad. On that very day, India sought consular access to Jadhav . On obtaining no response

from Pakistan, India sent a reminder on 30 March reiterating its request for consular access. 61

Innumerable requests through formal Notes Verbale and Verbal Demarches, were made to Pakistan

between March 2016 and April 2017 for consular access to Jadhav . The requests, however,

elicited no response from Pakistan.

69. On 23 January 2017, which was almost a year after India’s first request for consular

access, India received from Pakistan a request for assistance in investigation of what was described

as “FIR No. 6 of 2016.” Under the Pakistan Code of Criminal Procedure, the expression “FIR” is

used as an acronym for a “First Information Report” which is registered after the police first gets

information as to the commission of a crime. This was registered against the Indian national

apparently on 8 April 2016. What is significant is that the letter acknowledged that this “FIR” had

been registered against “an Indian national”. The nationality of Jadhav has never been in doubt.

60
Application of India, Annex 1 and judges’ folder, tab 1.
61Application of India, Annex 1 and judges’ folder, tab 1.
62
Application of India, Annex 1 and judges’ folder, tab 1.
63
Application of India, Annex 2 and judges’ folder, tab 2. - 36 -

70. Thus, the international obligation to allow consular access under Article 36 of the Vienna

Convention has admittedly been breached by Pakistan. It is obvious that even the right of Jadhav to

seek and obtain consular access had been breached by Pakistan.

71. On 3 February 2017 India protested through a demarche against the continued denial of

consular access to Jadhav. The letter from Pakistan seeking assistance also established that there

was a purported confession by him which was the basis or at least a significant part of the case

against him. India raised concerns as to his safety, pointing out that “questions about his treatment

in Pakistan’s custody continue to mount, given especially his coerced purported confession, and the

64
circumstances of his presence in Pakistan remain unexplained” .

72. On 3 March 2017 , India reminded Pakistan of the various requests.

73. India received another Note Verbale on 21 March 2017 from Pakistan. In this, Pakistan

stated that, “the case for the consular access to the Indian national . . . shall be considered, in the

light of [the] Indian side’s response to Pakistan’s request for assistance in investigation process and

early dispensation of justice” .66

74. The foregoing facts of the case including the Note Verbale of 21 March 2017 establishes

that Pakistan had been acting in brazen violation of its obligations under the Vienna Convention, as

the Convention does not include any exceptions in respect of consular access recognized in

Article 36. The linking of assistance in the investigation to the grant of consular access was by

itself a serious violation of the Vienna Convention.

75. India responded to this Note Verbale on 31 March 2017 pointing out that, “[c]onsular

access to Mr. Jadhav would be an essential pre-requisite in order to verify the facts and understand

67
the circumstances of his presence in Pakistan” . India had information that he had been kidnapped

from Iran, where he was carrying out business after retiring from the Indian Navy, and was shown

to have been arrested in Baluchistan. These matters required verification, the first step for which

would be consular access.

64
Application of India, Annex 1 and judges’ folder, tab 1.
65Application of India, Annex 1 and judges’ folder, tab 1.
66
Application of India, Annex 3 and judges’ folder, tab 3.
67
Application of India, Annex 1 and judges’ folder, tab 1. - 37 -

76. A press release was then issued by Inter Services Public Relations, a government agency

of Pakistan, on 10 April 2017, regarding Jadhav. This said that, “[t]he spy has been tried through

Field General Court Martial (FGCM) under Pakistan Army Act (PAA) and awarded death

sentence. Today COAS, Gen. Qamar Javed Bajwa has confirmed his death sentence awarded
68
by FGCM.”

77. India received on 10 April 2017 69 another Note Verbale from the Ministry of Foreign

Affairs, Islamabad conveying that consular access shall be considered in the light of India’s

response to Pakistan’s assistance in the investigation.

78. India responded to this on 10 April 2017 itself pointing out that the offer was being

iterated after the death sentence had been confirmed and the information of which confirmation

was given in a press release by Pakistan. India expressed its anguish by saying that this offer

“underlines the farcical nature of the proceedings and so-called trial by a Pakistan military court

70
martial” . India reminded Pakistan that despite its repeated requests consular access had not been

allowed.

79. A press statement was made by the Adviser to the Prime Minister of Pakistan on Foreign
71
Affairs . The press statement establishes the following facts:

(i) After his alleged arrest, a “confessional video” was recorded on 25 March 2016. The FIR

was, however, registered on 8 April 2016.

(ii) The accused was interrogated in May 2016, and in July 2016, a confessional statement

was recorded before a magistrate.

(iii) The court martial recorded summary of evidence on 24 September 2016, and in four

proceedings culminating on 12 February 2017, the trial was over.

(iv) In the course of the trial, it says, the accused “was allowed to ask questions from the

witnesses”, and that “a law qualified field officer was provided to defend him throughout

the court proceedings”.

68
Application of India, Annex 4 and judges’ folder, tab 4.
6Application of India, Annex 5 and judges’ folder, tab 5.
70
Application of India, Annex 1 and judges’ folder, tab 1.
71
Application of India, Annex 6 and judges’ folder, tab 6. - 38 -

80. The last proceeding in the case, as per this statement, was on 12 February. The

conditional consular access offered by Pakistan on 21 March 2017 had in any event become

meaningless as the trial was possibly over by then.

81. These facts establish beyond a shadow of a doubt that the trial was conducted without

informing the accused of his rights under the Vienna Convention, without granting consular access

to India and denying the accused and India to arrange for legal representation. Pakistan, thus,

conducted itself in a manner that constitutes an egregious violation of the Vienna Convention.

82. In a briefing on 17 April 2017, on behalf of the Government of Pakistan, the authorized

spokesperson said that the Indian national is not eligible to consular access . 72

Le PRESIDENT: Excusez-moi, Monsieur, puis-je vous demander de ralentir un peu le débit

pour les interprètes ? Merci.

Mr. SALVE: The provisions of the Vienna Convention were thus violated, and the ongoing

conduct of Pakistan continues to be in defiance of the provisions of the Convention.

83. On 19 April 2017 , India yet again handed over a Note Verbale to Pakistan  through

its High Commission in New Delhi  seeking copies of the charge sheet, proceedings of the Court

of Inquiry, the summary of evidence and the judgment. The right of this State and the right of the

accused, for the consular post to assist in legal representation, would in order to be meaningful,

include the right to obtain this information.

84. I say, Sir, Mr. President and esteemed Members of the Court, India does not invite this

Court to sit in appeal over the conduct of the Pakistani courts. But I make these points to

underscore the consequences that have followed from the violation of the Vienna Convention.

85. The rights, I submit, Mr. President and esteemed Members of the Court, the rights of

Article 36 are sacrosanct. They are enforceable rights.

86. The rights of consular access are a significant step in the evolution and recognition of the

human rights in international law. The International Covenant on Civil and Political Rights,

the ICCPR, notes that “the principles proclaimed in the Charter of the United Nations, recognition

7Paragraph 7 above.

7Application of India, Annex 1 and judges’ folder, tab 1. - 39 -

of the inherent dignity and of the equal and inalienable rights of all members of the human family

is the foundation of freedom, justice and peace in the world”. Article 6 of ICCPR recognizes that

no one shall be arbitrarily deprived of his life. Article 9 recognizes the right to liberty and security

of person, and prohibits arbitrary arrests and detention. Article 14 of the ICCPR provides that “in

the determination of any criminal charge against him . . . everyone shall be entitled to a fair and

public hearing by a competent, independent and impartial tribunal established by law.” The subsets

of this right, in paragraph 3 of Article 14, include the right “to be tried in his presence, and to

defend himself in person or through legal assistance of his own choosing; to be informed, if he

does not have legal assistance, of this right; and to have legal assistance assigned to him, in any

case where the interests of justice so require”.

87. In order to make these salutary principles a living reality, where a national of one country

is being tried in another country, adherence in letter and spirit to the Vienna Convention becomes a

vital step. Mr. President and esteemed Members of the Court, I say with all the emphasis at my

command, the graver the charges, the greater the need for punctilious adherence to the Convention.

Although the Vienna Convention predates the ICCPR, international law and its jurisprudence

specially in the dimensions of human rights have evolved with time, and the interpretation of the

Vienna Convention and the implications of the rights guaranteed must be informed by current

standards of conduct expected from sovereign States.

88. The Vienna Convention embodies a vital code of conduct that would give life and

meaning to the right to fair trial to a national of one State arrested in another State. The content of

Article 36 of the Vienna Convention in the present times must be informed by international

jurisprudence which includes the salubrious principles recognized by the ICCPR.

89. As held by this Court in Avena, “violations of the rights of the individual under

Article 36 may entail a violation of the rights of the sending State, and that violations of the rights

74
of the latter may entail a violation of the rights of the individual” . Where the rights of an

individual are violated, consequences must follow. The Vienna Convention recognizes the right of

7Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I),
p. 36, para. 40. - 40 -

a State to seek redress on behalf of its national in this Court, where the rights of its national, and

concomitantly its own rights under the Vienna Convention are violated by another State.

90. The facts set out in our Application, alluded to only briefly, establish egregious violation

of the Vienna Convention. The events that have transpired since March 2016 establish the farcical

nature of the trial and leave no manner of doubt that, in the present case, the violation of the right

of consular access in the Vienna Convention has been destroyed, and this has destroyed any

credibility and sanctity that the verdict of the military court in Pakistan may have in international

law.

91. India invites the attention of this Court, to Pakistan’s conduct that violates the Vienna

Convention, and I shall focus on one or two issues.

(a) In its letter of 21 March 2017, Pakistan responded to the request for consular access stating that

“the case for consular access to the Indian national… shall be considered in the light of Indian

side’s response to Pakistan’s request for assistance in investigation process and early

75
dispensation of justice” . This is a completely untenable position, I submit, Mr. President and

esteemed Members of the Court. This is a completely untenable position and it is a clear

violation of the Vienna Convention. Article 36 confers the right upon the individual and upon

the State. Firstly, the right of an individual to consular access cannot be made hostage to

demands for assistance in investigation and the response of the State whose national is being

deprived consular access. Secondly, the Vienna Convention does not countenance any such

exceptions. Thirdly, I repeat, the more serious the charge, the greater the need for the

procedural safeguards to ensure that the accused gets a fair trial. In the circumstances of this

case, where the accused has been, by March 2017, for a year in military custody,

incommunicado from his family and from his home State, the suggestion that there has been a

fair trial without allowing consular access is patently untenable. The trial stands vitiated in

international law, for egregious violations of the Vienna Convention.

(b) The press release of 10 April 2017 , announcing the award of the death sentence and its

confirmation by the Chief of Army Staff, stated that Jadhav confessed before a magistrate 

7Application of India, Annex 3 and judges’ folder, tab 3.

7Application of India, Annex 4 and judges’ folder, tab 4. - 41 -

and his confession was that he had been tasked to coordinate and organise espionage and

sabotage activities et cetera. In the absence of any information as to the evidence led against

him other than his confession, it can fairly be assumed that his confession played a significant

part in his conviction. This confession was extracted when he was in military custody,

incommunicado and continuously denied consular access. The repeated assertions that he was

afforded a fair trial, when his basic rights, under the Vienna Convention were thrown to the

winds, ring hollow.

92. India seeks the intervention of this Court to address the injury caused by the violation of

the Vienna Convention, and Mr. President and esteemed Members of the Court, I respectfully

submit the existence of any another remedy, even assuming such remedy does exist in domestic

law of Pakistan, does not bar invocation of the jurisdiction of this Court.

93. The assertions by Pakistan in its communication of 12 May 2017 that there are remedies

available to Jadhav have to be viewed in the backdrop of the circumstances of the case and few of

the important circumstances are important:

(a) at the appellate stage Pakistan steadfastly refuses to allow consular access – not that access at

this stage would cure the fatal defect in the process which led to his conviction. It only shows

that the illegality arising out of violation of the Vienna Convention continues unabated;

(b) The information in public domain suggests that the appeal will be heard by a tribunal presided

over by a two star general. The death sentence stands confirmed by the Chief of Army Staff of

Pakistan – a four-star general. It strains credulity to believe that the Court of Appeal will have

the degree of impartiality and independence, and decide the matter uninfluenced by these

events.

(c) The appeal will be heard when Jadhav continues to be incommunicado and deprived of

consular access. The military spokesman candidly, in his press briefing, admitted that he did
77
not see any chance of the verdict being overturned ;

(d) From the information in public domain, Jadhav would not have access to legal representation of

78
his choice. It was reported (and it has not been denied) that the Lahore High Court Bar

7Application of India, Annex 7 and judges’ folder, tab 7.

7Application of India, Annex 11 and judges’ folder, tab 11. - 42 -

Association has threatened to cancel the membership against any lawyer pursuing appeal of

Jadhav against his conviction. Thus, Jadhav has neither consular access, nor prospects of

finding proper legal representation even at this stage.

(e) In any event, Mr. President, esteemed Members of the Court, I respectfully submit that there is

no legal remedy that would be able to redress the injury caused by the violation of the Vienna

Convention. Spokespersons of Pakistan have already clarified their stance that the consular

access under the Convention would not be allowed to Jadhav, which comments are consistent

with Pakistan’s communications to India.

94. Pakistan continues to make allegations suggesting that Jadhav was a commander in the

Indian Navy and an Indian spy. India refutes these allegations as being baseless and being part of a

propaganda war relentlessly waged by Pakistan. India asserts that Jadhav retired from the Indian

Navy and has been pursuing business in Iran from where he was kidnapped. But Mr. President and

esteemed Members of the Court, the merits of these allegations and counter allegations between the

two countries are irrelevant for the case which you are going to decide. The seriousness of the

allegations only underscores the need for strict adherence to the procedural rights and safeguards

available to an accused not merely under domestic law, but in the case of Jadhav, also under the

Vienna Convention.

95. India submits therefore, Mr. President and esteemed Members of the Court, that it has a

strong prima facie case as to the jurisdiction of the Court and on merits, sufficient to justify seeking

provisional measures. India in its reliefs seeks restitutio in integrum  which would, in the least,

finally require annulment of the verdict.

96. In the circumstances, I submit that India has a strong case seeking by of for provisional

measures as an indication that the death sentence be not executed until such time as this Court has

adjudicated upon India’s Application.

Provisional Measures

97. And therefore, on behalf of the Republic of India, Mr. President and esteemed Members

of the Court, I request that pending final judgment in this case, the Court indicate provisional

measures: - 43 -

(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 this 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 this Court may render on the merits of India’s application.

Thank you Mr. President and esteemed Members of the Court.

The PRESIDENT: I now give the floor to Dr. Deepak Mittal, the Agent of the Republic of

India.

Mr. MITTAL: Thank you, Mr. President and esteemed Members of the Court. I thank the

Court for their patient hearing. As the Counsel for the Republic of India has already read out the

request, I formally, once again, reiterate the request on behalf of the Government of India that,

pending final judgment in the case, the Court indicate:

(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.

Thank you.

The PRESIDENT: Thank you. That ends the oral observations of the Republic of India. The

Court will meet again this afternoon at 3 p.m. to hear the oral observations of the Islamic Republic

of Pakistan. The sitting is closed.

The Court rose at 11.40 a.m.

___________

ICJ document subtitle

Public sitting held on Monday 15 May 2017, at 10 a.m.

Document Long Title

Public sitting held on Monday 15 May 2017, at 10 a.m., at the Peace Palace, President Abraham presiding, in the Jadhav (India v. Pakistan) case

Links