Counter-Memorial of the Islamic Republic of Pakistan

INTERNATIONAL COURT OF JUSTICE
THE JADHA V CASE
THE REPUBLIC OF INDIA v. THE ISLAMIC REPUBLIC OF
PAKISTAN
COUNTER-MEMORIAL OF THE ISLAMIC REPUBLIC OF
PAKISTAN
13TH DECEMBER 2017
Page 1 of 147
Contents
I. INTRODUCTION AND EXECUTIVE SUMMARY ................................................................. 5
II. F ACTUAL BACKGROUND .............................................................................................. 10
Arrest ...................................................................................................................................... 10
Confession to Espionage and Terrorist Activities ..................................................................... 10
India Informed of Arrest .......................................................................................................... 12
First Information Report registered / Criminal proceedings initiated ....................................... 13
India purports to identify Commander Jadhav .......................................................................... 14
Confession be fore a Magistrate ................................................................................................ 15
Pakistan Requests Assistance from India in the Investigation of Terrorism ............................... l 7
Conviction and Sentence .......................................................................................................... 19
Press Statement by Adviser to the Prime Minis ter of Pakistan on Foreign Ajfairs ..................... 23
India institutes the instant proceedings ..................................................................................... 27
Commander Jadhav 's Continued Confession ............................................................................ 30
III. PRELIMINARY ISSUES MILITATING AGAINST THE COURTEXERCISING
JURISDICTION .............................................................................................................................. 37
(A) ABUSE OF PROCESS ................................................................................................... 37
(i) Sorne material facts ............................................................................................................. 39
(ii) India 's "ambush" by avoiding the dispute resolution mechanisms of the Optional Protocol
41
Concluding observations .......................................................................................................... 43
(B) ABUSE OF RIGHTS / LACK OF GOOD FAITH .......................................................... 44
(i) The le gal principles ............................................................................................................. 44
(ii) The Abuse ....................................................................................................................... 48
(iii) Violations of public international law by India ............................................................ 49
(C) EX TURF! CAUSA (ILLEGALITY) / UNCLEAN HANDS / EX INJURIA JUS NON
ORITUR ...................................................................................................................................... 53
23rd January 2017 and thereafier- queries ignored ................................................................. 59
Commander Jadhav 's use of an authentic Indian passport clothed with a false identity ............ 61
The Westgate Report ................................................................................................................ 61
Ex turpi causa .......................................................................................................................... 63
IV. FURTHER, OR IN THE ALTERNATIVE, EVEN IF THE THRESHOLD FOR
JURISDICTION HAS BEEN ENGAGED, THE PRELIMINARY ISSUES SHOULD MILITATE
AGAINST THE GRANTING OF ANY RELIEF ............................................................................. 64
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V. THE VIENNA CONVENTION ON CONSULAR RELATIONS 1963 IS NOT ENGAGED
67
(A) INDIAHAS FAILED TO ESTABLISH THE NATIONALITY OF COMMANDER
JADHAV .................................................................................................................................... 72
Proof of nationality- a valid pas sport ..................................................................................... 7 2
(B) THE VIENNA CONVENTION ON CONSULAR RELATIONS 1963 IS NOT
ENGAGED IN ESPIONAGE CASES ......................................................................................... 79
The Historical Context ofConsular Relations .......................................................................... 79
The History of the Vienna Convention on Consular Relations 1963 .......................................... 79
Travaux Préparatoires ............................................................................................................. 81
Customary International Law at the time of the Vienna Convention on Consular Relations 1963
- State Practice ................................ ........................................................................................ 86
VI. FURTHER, OR IN THE ALTERNATIVE, IN THE EVENT THAT THE VIENNA
CONVENTION ON CONSULAR RELATIONS 1963 IS ENGAGED, PAKISTAN HAS
COMMITTED NO BREACH IN THE INSTANT CASE ................................................................ 95
(A) VIENNA CONVENTION ON CONSULAR RELATIONS 1963 - SPECIFIC
PROVISIONS ............................................................................................................................. 96
Immediate access is not required ............................................................................................. 97
(B) THE 2008 BILATERAL AGREEMENT BETWEEN INDIA AND PAKISTAN .......... 100
Background ........................................................................................................................... 100
Interplay between the VCCR 1963 and the 2008 Agreement ................................................... 105
Registration of the 2008 Agreement ....................................................................................... 108
Concluding Observations ....................................................................................................... 110
VII. THE RELIEF SOUGHT BY INDIA FROM THE COURTIS UNAV AILABLE AND/OR
INAPPROPRIATE ........................................................................................................................ 111
Introduction ........................................................................................................................... 111
India wrongly simplifies the nature and scope of reparation ................................................... 112
The ICJ is not an appellate criminal court .............................................................................. 113
Why a status quo remedy does not existfor Article 36 VCCR 1963 breaches .......................... 117
India 's reliance upon the Chorzôw Factory principle is inappropriate ................................... 118
"Review and Reconsideration " .............................................................................................. 120
The modalities/requirements of "review and reconsideration" ............................................... 126
The Military Law experts: the Paphiti/Garraway Report ........................................................ 127
Clemency procedures in Pakistan available to and being utilised by Commander Jadhav ....... 131
"Review and reconsideration" by the judiciary in Pakistan .................................................... 133
VIII. CONCLUDING OBSERVATIONS .................................................................................. 136
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SUBMISSION .............................................................................................................................. 137
CERTIFICATION ......................................................................................................................... 137
ANNEX: LIST OF EXHIBITS ...................................................................................................... 138
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I. INTRODUCTION AND EXECUTIVE SUMMARY
1. On behalf of the Islamic Republic of Pakistan ("Pakistan"), it is an honour to present this
Counter-Memorial to the Court pursuant to the Procedural Ortler dated 13 June 2017.
2. On 8 May 2017, the Republic oflndia ("India") instituted proceedings before this Court
and filed a Request for the Indication of Provisional Measures alleging (at paragraph 3 of
that request) that "the authorities of Pakistan arrested, detailed, tried and sentenced ta
death on JO April 2017 an Indian national, Mr. Kulbhushan Sudhir Jadhav, in egregious
violation of the rights of consular access guaranteed by Article 3 6, paragraph 1, of the
Vienna Convention [on Consular Relations 1963}" ("VCCR 1963") and ("Article 36").
3. Pakistan rejects any suggestion that it has committed any breach of any ofits obligations
as a matter of Public International Law.
4. Save where expressl y admitted herein, In dia i s put to proof of all facts and matters reli ed
upon in support of its Application, Memorial and daims for relief
5. In this Counter-Memorial, references to annexures are given in the form
[volume/annex/page/paragraph].
Executive Summary
6. Pakistan respectfully submits that India' s Application is misconceived. The key
arguments identified herein have previously been raised at the Provisional Measures
hearing on 15 May 2017.
7. It is therefore regrettable that India has not used the vehicle of its Memorial to advance its
position with further clarity, or to address the arguments raised by Pakistan in any
meaningful manner.
(I). India sought to engineer "urgency" to justify exceptional provisional measures
without any hearing, and by deliberately failing to draw material facts and matters
to the attention of the Court which negated the "imminence" /"any day" assertions
regarding the carrying out of the sentence upon Commander Jadhav.
(II). It is a matter of considerable concern and regret that India has failed to explain how
Commander Jadhav entered Pakistan in possession of an authentic Indian passport
clothed with a false Muslim identity. Instead, seizing upon the fact that Commander
Jadhav was using a false Muslim name, India stated "the question of authenticating
a declaredfalse document does not arise" [Volume 2/Annex 33]. This is evasive
sophistry (at best) to conceal, Pakistan says, India' s wrongdoing in providing an
authentic passport with a false Muslim identity.
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(III). Whilst India has thus far evaded providing any explanation on the passport issue,
Pakistan has engaged an independent expert to examine the passport. The expert (a
former Chieflmmigration Officer at the UK National Document Fraud Unit for 13
years) has confirmed that the pas sport in the possession of Commander J adhav (in a
false name) is an authentic Indian passport [Volume 7/Annex 141]. Commander
Jadhav must have been provided with this passport by the Indian authorities who
must also have clothed him with a false Muslim identity (in pursuit of his illegal
activities).
(IV). In addition thereto, India remains unwilling to address legitimate requests for
mutual legal assistance. Indeed, in a frank admission no less a person than India's
Ministry ofExternal Affairs Spokesperson on 13 April 2017 accepted that [Volume
2/ Annex 22/page 6/para 7] "The Pakistani authorities asked us ta assist them in
completing the investigation [concerning Commander Jadhav J this year". There i s
simply no justification for refusing to provide such assistance - apart from a desire
to deflect criticism - to Pakistan and obstruct the investigation and prosecution of
Commander Jadhav.
8. These facts and matters, inter alia, engage the principles of:
8 .1. Abuse of process;
8.2. Abuse of rights;
8.3. Illegality;
8.4. Ex turpi causa (clean hands doctrine).
9. Given the egregious, deliberate nature of its acts and omissions, India's daims should be
the subject of a preliminary evaluation in this regard and dismissed accordingly.
1 O. Further or in the alternative, these aforesaid facts and matters are highly relevant when
considering India's daim that the VCCR 1963, specifically Article 36 thereof, has been
breached by Pakistan.
11. Article 36 is not engaged until and unless the "sending state" fumishes evidence of the
nati onality of the indi vidual.
12. In this case, whilst India now states that Pakistan proceeded at all times upon the basis
that Commander Jadhav was a spy oflndian origin, it would be curious if a passport in a
false identity and a confession of illegal activity would absolve a "sending state" of the
treaty requirement to establi sh nationali ty. Indeed, In dia' s Mini stry of External Aff airs
Spokesperson appears to have accepted this was a requirement as in his press briefing on
13 April 2017 [Volume 2/Annex 22/page 3/para 2], he stated, inter alia, that the fact that
"he [Commander Jadhavj is an Indian ... was communicated ta Pakistan more than a
year aga". At no point in time ( de spi te repeated reminders) has In dia furni shed any
evidence of the Indian nationality of Commander Jadhav - no doubt for the reasons
explained further below.
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13. Customary International Law and State practice provide no support (or clear and cogent
support) to the contention that Article 36 is engaged in the context of an individual
against whom a prima facie case of espionage exists, not least an individual who
possesses an authentic passport in a false identity for which the putative "sending state"
refuses to provide an explanation.
14. India itself advanced a bilateral agreement which was eventually entered into titled
"Agreement on Consular Access" dated 21 May 2008 [Volume 7/Annex 160]. Article
(vi) thereof in terms addresses the specific cases of arrest, detention or sentence made on
"political or security grounds" and provides that each party may "examine the case on its
merits". In the Provisional Measures phase, India asserted that it did not "rely" upon the
2008 Agreement which was "irrelevant" [Volume 1/Annex 5.1/page 34/para 66]. In
India's Memorial (at paragraphs 89-99), a somewhat vague assertion is advanced to the
effect that whilst some parts of the 2008 Agreement "supplement or amplifj;'' the 2008
Agreement, Article (vi) is not such a provision.
15. However, yet again, the official position adopted by India through its Spokesperson on 13
April 2017 with regard to Consular access to Commander Jadhav was both frank and
accurate [Volume 2/Annex 22/page 5/last para]:
"Bath India and Pakistan have also an agreement on consular access bilaterally. Sa we
are not merely speaking about an international practice, we are speaking here of a
bilateral agreement."
16. No doubt based upon advice from its lawyers, India now seeks to resile from its formal
position (that it was in fact relying upon the 2008 Agreement less than 3 weeks prior to
launching its Application before the Court). Indeed, India seeks to pretend that the 2008
Agreement can be conveniently ignored in respect of a central aspect. The 2008
Agreement was clearly intended to have legal effect, and can only be viewed as
amplifying and supplementing the provisions of the VCCR 1963 as otherwise operative
between these two States, whose relationship has been fractious at times.
17. Within the context of an overall abuse of process, India has sought relieffrom the Court
(an order for "acquittal/release") which the Court has stated, time and again, is not
available. India has used the Courts process to engage in political grandstanding and a
media/cyber war which belies its ultimate objective - to use the Court as a vehicle for a
theatre of sorts.
18. Indeed, somewhat regrettably, India's use of inflammatory language extended to
insinuating that the military courts of Pakistan were akin to kangaroo courts. This is most
unfortunate, not least because the military courts oflndia and Pakistan share the same
origins. Moreover, independent pre-eminent military law experts from the United
Kingdom have provided a report [Volume 7/Annex 142] which, inter alia, states that the
Page 7 of 147
military courts of Pakistan are "soundly based' [Volume 7/Annex 142/page vi/para
3(b)], and they did not consider that "the espionage jurisdiction of the military courts of
Pakistan ... is perse unfair or otherwise improper" [Volume 7/Annex 142/page vii/para
3(c)].
19. Nevertheless, even iflndia were correct (which it is not), the Court would (assuming
Article 36 VCCR 1963 is engaged and is breached, which is not accepted) direct a State
at most to provide for "review and reconsideration".
20. That task has been amply provided for by the Pakistani Courts, as confirmed by the
Supreme Court in its decision in the case of Said Zaman Khan v Federation of Pakistan
through Secretary Ministry of Defence, Government of Pakistan (Civil Petition No. 842
of2016) [Volume 4/Annex 81/pages 50-52/para. 93 and pages 59-62/paras. 103-104]
where it stated:
"9 3 . ... It is by now a well settled proposition of law, as is obvious from the judgments of
this Court, referred ta and reproduced hereinabove, that the powers of Judicial Review
under Article 199 of the Constitution of the Islamic Republic of Pakistan, 19 7 3, against
the sentences and convictions of the FGCM is not legally identical ta the powers of an
Appellate Court. The evidence produced cannot be analyzed in detail ta displace any
reasonable or probable conclusion drawn by the FGCM nor can the High Court venture
into the realm of the "merits" of the case. H owever, the learned High Court can always
satisfj; itself that it is nota case of no evidence or insufficient evidence or the absence of
jurisdiction.
103. The nature and extent of the power of Judicial Review in matters arising from an
action taken under the Pakistan Army Act, 1952, has by and large been settled by this
Court through its various judgments, referred ta above. It now stands clarified that
neither the High Court nor this Court can sit in appeal over the jindings of the FGCM or
undertake an exercise of analyzing the evidence produced before it or dwell into the
"merits" of the case. However, we have scanned the evidence produced andproceedings
conducted by the FGCM The Convict pleaded guilty ta the charges, which were altered
ta not guilty by operation of the law. There was a judicial confession of the Convict
before a learned Judicial Magistrate, which was proved in evidence by the said Judicial
Magistrate, who appeared as a witness. Such confession was never retracted by the
Convict. Other relevant evidence, including eye witnesses of the occurrence was also
produced The prosecution witnesses made their statements on Oath and were crossexamined
by the Defending Officer. Opportunity ta produce evidence in defence was
given, which was declined The Convict was permitted ta address the Court and made a
statement, wherein he again admitted his guilt. In the above circumstances, it is not
possible for us ta conclude that it was a case of no evidence or insufficient evidence nor is
it possible ta hold that the conclusions drawn by the FGCM are blatantly unreasonable
or wholly improbable.
Page 8 of 147
104. A perusal of the record of the FGCM reveals that in order ta ensure a fair trial and
ta protect the rights of the Convict, the relevant Rules were complied with. The Summary
of evidence had been taken and was laid be fore the FGCM, as is apparent from the
record of the proceedings thereof An Interpre ter was appointed with the consent of the
Convict in terms of Rule 91 of the Pakistan Army Act Ru les, 19 5 4. The nature of the
offence for the commission whereof, the Convict was charged, was explained ta him as
tao the possible sentence that would be awarded, as required by Rule 95. He was given
an opportunity ta prepare his defence and engage Civil Defence Counsel, if he sa desired,
in terms of Rules 23 and 24. On his exercising the option not ta do sa, a Defending
Officer was appointed in terms of Rule 81. He was given an opportunity ta abject ta the
constitution of the FGCM and ta the Prosecutor as well as the Defending Officer, in
terms of Section 104 and Rule 35 also. No objection, in this behalf, was raised. The
Members of the FGCM, the Prosecutor, the Defending Officer and the Interpreter were
duly sworn in, as required by Rules 36 and 37. The charge wasformally framed ta which
incidentally, the Convict pleaded guilty. The evidence was recorded on Oath. An
opportunity ta cross-examine was granted, which was availed off and an opportunity was
also given ta produce evidence in defence in terms of Rule 142, which was declined. He
was also allowed ta record his own statement and ta address the Court in terms of Rule
143 wherein he admitted his guilt. The sentence was passed, which has been confirmed in
accordance with Section 130 and the Appeal therefrom was dismissed by the Competent
Authority. It appears that the provisions of the Pakistan Army Act and the Rules framed
thereunder, applicable ta the trial at hand have not been violated. Even otherwise, the
procedural defects, if any, would not vitiate the trial in view of Rule 13 2 of the Pakistan
Army Act Rules, 1954 nor did the High Court have the jurisdiction ta enter into the
domain of the procedural irregularities in view of the judgment, reported as Mrs. Shahida
Zahir Abbasi and 4 others (supra), especially as no prejudice appears ta have been
caused ta the Convict nor any such prejudice has been pointed out by the learned counsel
or specifically pleaded be fore the High Court."
21. Accordingly, the daim brought by India (in every respect, including the relief sought), is
(at best) adventurous, at worst abusive, and should be dismissed.
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II. FACTUAL BACKGROUND
Arrest
22. On 3 March 2016, a man illegally and clandestinely entered Pakistan from across the
Saravan border with Iran and was arrested by the Pakistani authorities in the course of a
Counter Intelligence Operation from Mashkel in Balochistan Province [Volume 2/Annex
17/page 15/para. 5]. A map showing the region is provided [Volume 6/Annex 139].
23. He was in possession of an Indian passport (number L9630722, issued on 12 May 2015,
valid until 11 May 2024) bearing the Muslim name 'Hussein Mubarak Patel' [Volume
2/Annex 17/pages 12-14]. However, he subsequently admitted and/or claimed to be
Officer 415582, Commander Kulbhushan Sudhir Jadhav ("Commander Jadhav"), a
serving officer of the Indian Navy [Volume 2/Annex 17/page 15/paras. 1, 3]. He is
apparently 49 years of age at the date ofthis Counter-Memorial- his date ofbirth is 30
August 1968 [Volume 2/Annex 17/pages 12-14]. India has asserted he has "retired" from
the Armed Forces. Commander Jadhav has stated he is due for retirement in 2022 (as set
out in his first confession, reproduced in full below). From public source materials on the
internet, the retirement age for an officer of his rank is understood to be not less than 52
[Volume 6/Annex 140]. No doubt India can confirm whether this is correct. Curiously
therefore, whilst India has asserted ( conveniently) that Commander Jadhav retired at
some point in his career before being caught spying in Pakistan, Commander Jadhav
himself appears to have referred to his future eligibility for retirement- perhaps a small
but significant indication of the overall veracity ofhis confession - repeated for the
benefit of the authorities, the Magistrate, the Court, and the world at large over a period
of more than 1 year.
24. Without prejudice to the consequent doubts that still linger regarding that individual's
true identity, he is referred to in this Counter-Memorial (for the purposes of these
proceedings) as "Commander Jadhav". India has maintained its assertion (still without
any substantiation) that this man was "kidnappedfrom Iran, where he was residing and
carrying on business ajter retiringfrom the Indian Navy" (para. 57 of the Memorial).
Confession ta Espionage and Terrorist Activities
25. As was made public on 25 March 2016, Commander Jadhav voluntarily confessed in
detail to his involvement in the facilitation and commission of acts of espionage and
terrorism in Pakistan at the behest oflndia' s Research & Analysis Wing ("RAW") (the
primary foreign intelligence agency oflndia). The transcript of that confessional
statement is reproduced in full below:
"TRANSCRIPT IN ENGLISH
CONFESSIONAL STATEMENT OF COMMANDER KULBHUSHAN JADHA V
Page 10 of 147
1. I am Commander Kulbhushan Jadhav Number 41558Z. I am a serving officer of the
Indian Navy. I am from the cadre of engineering department in the Indian Navy and my
caver name was Hussain Mubarak Patel, which I had taken for doing some intelligence
gatheringfor the Indian caver/ agencies.
2. I joined National Defence Academy in 198 7 and I subsequently joined the Indian
Navy in 1991 and was commissioned into the Indian Navy and subsequently served in the
Indian Navy till around 2001 December when Indian Parliament attack occurred and that
is when I started contributing my services towards the gathering of information and
intelligence within India. I lived in the city of Mumbai in India.
3. I am still a serving officer in the Indian Navy and will be due for retirement by 2022
as a commissioned officer in the Indian Navy. After having completed 14 years of service
by 2002, I commenced intelligence operations in 2003 and established a small business in
Chabahar in Iran. As I was able ta achieve undetected existence and visits ta Karachi in
2 00 3 and 2004 and having done some basic assignments within India for RA W, I was
picked up by RA Win 2013 end Ever since, I have been directing various activities in
Balochistan and Karachi at the behest of RA W and deteriorating law and or der situation
in Karachi. I was basically the man for Mr Anil Kumar Gupta who is the joint secretary
RA W and his contacts in Pakistan especially in the Balochistan Student Organisation.
4. My purpose was ta hold meetings with Baloch insurgents and carry out activities with
their collaboration. These activities have been of criminal nature. These have been of
anti- national and terrorist activities leading ta killing or maiming of Pakistani citizens
also. I realized during this process that RA W is involved in some activities related ta the
Baloch Liberation Movement within Pakistan and the region around it. There are
finances which are fed into the Baloch Movement through various contacts or various
ways and me ans into the Baloch Liberation and the various activities of the se Baloch
Liberation and the RA W handlers go towards activities which are criminal, which are
anti-national, which can lead ta maiming or killing of people within Pakistan and mostly
the se activities were centred around what I have knowledge of Ports of Gawadar, Pasni,
Jeevani and various other installations, which are around the coast, damaging various
other installations, which are in Balochistan. Sa the activities seem ta be revolving
around and trying ta create a criminal sort of mindset within the Baloch liberation and
lead ta instability within Pakistan.
5. In my pur suit towards achieving the set targets by my handlers in RA W, I was trying
ta cross over into Pakistan from the Saravan border in Iran on March 3, 2016 and was
apprehended by Pakistani authorities while on the Pakistani side and the main aim of this
crossing over into Pakistan was ta hold meetings with BSN personnel in Balochistan for
carrying out various activities, which they were supposed ta undertake and carryingfor
backwards the messages which they had ta deliver backwards ta Indian agencies. The
main issues regarding this were that they were planning ta conduct some operations
within the next immediate future, near future. Sa that was ta be discussed mainly and that
was the main aim of trying ta coming into Pakistan.
Page 11 of 147
6. Sa the moment I realized that my intelligence operations have been compromised on
my being detained in Pakistan, I revealed that I am an Indian Naval officer, and it is on
mentioning that I am Indian naval officer, the total perception of the establishment of the
Pakistani side changed and they treated me very honourably and with utmost respect and
due regards, and have handled me subsequently on a more professional and proper
courteous way and they have handled me in a way that bejits that of an officer and once I
realized that I have been compromised in my process of intelligence operations, I decided
ta Just end the mess I have landed myself in and Just wanted ta subsequently move on and
cooperate with the authorities in removing complications which I have landed myself and
my family members into, and whatever I am stating Just now, it is the truth and it is not
under any duress or pressure. I am doing it total/y out of my own desire ta mention and
came clean out of this en tire process which I have gone through for the fast 14 years."
India Informed of Arrest
26. On 25 March 2016, the Foreign Secretary of Pakistan gave express notification of the
arrest of Commander Jadhav to the Indian High Commissioner in Islamabad. On the same
day, Pakistan' s Ministry of Foreign Aff airs issued a de marche to the Indian High
Commissioner in Islamabad conveying Pakistan' s protest and deep concern on the illegal
entry into Pakistan by a RAW officer and his involvement in subversive activities in
Balochistan and Karachi [Volume 2/Annex 11].
27. On the same day, Pakistan, inter alia, also notified the P5 States (China, France, Russia,
the United Kingdom and the United States of America) of the arrest by providing a 10-
page briefing document which, inter alia, provided details of Commander Jadhav' s
confession (as set out above) and photographs of the passport in his possession at the time
ofhis arrest [Volume 2/Annex 12]. These are not the actions of a State trying to evade or
conceal its conduct. These are the actions of a wronged State engaging with the" sending
State" of the suspected spy/terrorist. They are the actions of a member of the United
Nations which has nothing to hide from the Security Council or the international
community.
28. Not unreasonably, Pakistan expects India to be held responsible for its conduct. Pakistan
does not expect the "conceal/evade"/"attack to defend" approach oflndia to succeed in
the face of such a serious violation of international law.
29. Later on the same day, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan' s Ministry of Foreign Affairs which referred to "the purported arrest of an
Indian in Baluchistan" and requested access to that individual, but did not identify that
the individual in question was Commander Jadhav [Volume 2/Annex 13.1].
30. On 30 March 2016, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan' s Ministry of Foreign Affairs which again referred to "the purported arrest of an
Page 12 of 147
Indian national in Baluchistan" and requested access to that individual but again did not
identify that the individual in question was Commander Jadhav [Volume 2/Annex 13.2].
First Information Report registered / Criminal proceedings initiated
31. On 8 April 2016, an initial First Information Report (No. 6 of 2016) concerning
Commander Jadhav was registered [Volume 2/ Annex 17 /pages 5-9]. Pursuant to Section
154 of Pakistan's Code of Criminal Procedure 1898 [Volume 5/Annex 82] (promulgated
in the era of British rule in India), information given to the police authorities concerning
the commission of a cognisable offence (i.e. an offence over which the police authorities
have jurisdiction) must be put into writing by the police authorities - the resulting
document is commonly known as a First Information Report ("FIR"). Once a FIR is
registered, the police authorities may utilise their powers of investigation in order to
investigate the offence complained of [Volume 2/Annex 18].
32. In summary, the FIR stated, inter alia:
32. l. "Kulbhushan Jadhev, alias, Hussain Mubarak Patel, is serving Commander of
Indian Navy, and working with Indian Intelligence Agency / RA W, was apprehended
by Pakistani Intelligence/ Security Agencies on 3 March 2015 ajter he illegally
crossed over ta Pakistanjrom Iranian 'Saravan' border". Commander Jadhav was in
possession of an Indian passport, maps of Balochistan, and currency in US dollars,
Iranian ri yal s and Paki stani currency.
32.2. Commander Jadhav was a serving officer of the Indian Navy, due to retire in
2022, and started rendering services to RAW/Indian Intelligence Agency after the
attacks on the Indian Parliament in 2001.
32.3. Commander Jadhav stated that on instructions ofRAW (and under the direct
instruction of Anil Kumar Gupta (Joint Secretary, RAW)), he commenced
intelligence operations against Pakistan, and planned and executed terrorist attacks
and waged war against Pakistan "with a view ta disintegrate by fomenting separatists
movements in Balochistan, Pakistan". For the said purpose, he established a small
scale business in Chahbahar, Iran, during 2003-2004. In addition, he had been
organizing, planning, conspiring and abetting waging of war in Pakistan through
Baloch Insurgents/Baloch Liberation Organization/Baloch Students Organization and
MQM.
32.4. In addition, he collected/obtained sensitive information about the Pakistani
Armed Forces and their installations with a view to targeting the same, and planted
several local residents, collaborators, co-conspirators, non-state actors and
individuals from the proscribed organisations to carry out acts of terrorism and
kidnapping for ransom in order to create unrest, insurgency, target killings, suicide
bombings and targeted operations to achieve his objectives.
Page 13 of 147
32.5. In addition, he stated that he had been involved in destroying civilian
properties, carrying out attacks on law enforcement agencies particularly in Karachi
and Balochistan. He would provide financial support to his collaborators to carry out
subversive activities against Pakistan, and had also been providing training to the
non-state actors in use of firearms, explosives, and improvised explosive devices in
Balochistan.
32.6. Commander Jadhav stated that the unlawful activities were to destabilise
Pakistan and obstruct the military and other law enforcement agencies from restoring
peace in Balochistan and Karachi. It was also aimed to scuttle the Pak-China
Economie Corridor Project. Commander Jadhav said that one ofhis coaccused/
accomplices facilitated his illegal entry into Pakistan.
32.7. Commander Jadhav was subject to the Pakistan Army Act 1952, and was
being dealt with under that Act, and was in the custody of the Pakistan Army.
33. The FIR concluded that the accused was under interrogation and was subject to other
offences not falling under the Pakistan Army Act 1952, and it was requested to register
the case of the Counter Terrorism Department under the relevant provision of law for
those offences.
34. On 15 April 2016, Pakistan's Ministry of Foreign Affairs notified the envoys of members
of the Arab League and the Association of Southeast Asian Nations ("ASEAN') Member
States based in Islamabad of the arrest of Commander Jadhav and gave a briefing on
Commander Jadhav' s confession about Indian-sponsored subversive activities and
terrorist financing to destabilise Pakistan [Volume 2/Annex 16].
35. Between 2 and 22 May 2016, Commander Jadhav was further questioned by the Pakistani
authorities [Volume 2/Annex 23/page 2].
36. On 6 May 2016, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan' s Ministry of Foreign Affairs which again referred to "the purported arrest of an
Indian national in Baluchistan" and requested access to that individual but again did not
identify that the individual in question was Commander Jadhav [Volume 2/Annex 13.3].
India purports ta identifj; Commander Jadhav
37. On 10 June 2016, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan's Ministry of Foreign Affairs. The full text ofthatNote Verbale is provided
below:
"No.ISL/103/14/2016
Page 14 of 147
The High Commission of India ta Pakistan presents its compliments ta the Ministry of
Foreign A.flairs, Government of the Islamic Republic of Pakistan, and has the honour ta
refer ta its earlier Notes Verbale No.ISL/103/1/2016 datedMarch 25, 2016,
No.ISL/103/14/2016 datedMarch 30, 2016 and May 06, 2016 regarding purported arrest
of an Indian national viz. Kulbhushan Jadhav in Baluchistan.
The Mission reiterates its request ta the esteemed Ministry ta provide Consular Access ta
the said individual at the earliest. It is reiterated that safety, security and well being of all
Indian and believed-to-be Indian prisoners, may please also be ensured till they are in
Pakistani }ails.
The High Commission of India ta Pakistan avails itself of this opportunity ta renew ta the
Ministry of Foreign A.flairs, Government of the Islamic Republic of Pakistan, the
assurances of its highest consideration" [Volume 2/Annex 13.4].
38. The Note Verbale on 10 June 2016 was thus the first in which India actually identified
that the individual in question was Commander Jadhav. No attempt has been made at any
time by India to rebut or explain the serious implications of the conduct of Commander
Jadhav. Instead (perhaps unsurprisingly) India has sought to evade or deflect the same.
39. On 11 July 2016, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan' s Ministry of Foreign Affairs which again referred to the ''purported' arrest of
Commander Jadhav and requested access to him [Volume 2/Annex 13.5].
40. On 12 July 2016, a Joint Investigation Team was established [Volume 2/Annex 23/page
2].
Confession before a Magistrate
41. On 22 July 2016, Commander Jadhav's confessional statement was recorded before a
magistrateunder Section 164 ofPakistan's Code ofCriminal Procedure 1898 1 [Volume
1 "164. Power to record statements and confessions. (1) Any Magistrale of the first class and any
Magistrale of the second class specially empowered in this behalf by the Provincial Government may, if he
is nota police-ojjicer, record any statement or confession made to him in the course of an investigation
un der this Chapter or at any time afterwards be fore the commencement of the inquiry or trial.
[(JA) Any such statement may be recorded by such Magistrale in the presence of the accused, and the
accused given an opportunity of cross-examining the witness making the statement.]
(2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence
as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and
signed in the manner provided in section 364, and such statements or confessions shall then be forwarded
to the Magistrale by whom the case is to be inquired into or tried.
(3) A Magistrale shall, before recording any such confession, explain to the persan making it that he is not
bound to make a confession and that if he does so it may be used as evidence against him and no
Magistrale shall record any such confession unless, upon questioning the persan making it, he has reason
Page 15 of 147
2/Annex 23/page 2]. In accordance with that procedure (which it is understood is similar
to that in India), the magistrate specifically asked questions which address matters such as
inducement and pressure. The confessional statement is taken in circumstances where the
judicial magistrate seeks to ensure that the individual is providing the statement
voluntarily. The judicial magistrate is required by law to satisfy themselves that the
individual appearing before them is voluntarily making a confessional statement.
42. On 26 July 2016, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan' s Ministry of Foreign Affairs which again referred to the ''purported' arrest of
Commander Jadhav and requested access to him [Volume 2/Annex 13.6].
43. On 22 August 2016, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan' s Ministry of Foreign Affairs which again referred to the ''purported' arrest of
Commander Jadhav and requested access to him [Volume 2/Annex 13.7].
44. On 6 September 2016, FIR No. 22 of 2016 concerning Commander Jadhav was registered
[Vol urne 2/ Annex 17 /pages 10-11]. This FIR stated that, as refl ected in the joint
interrogation and recording of confessional statement, Commander Jadhav had given a
list of 15 names (plus two unknown persans) as his handlers' organization /persans/
accomplices and facilitators.
45. On 21 September 2016, the trial of Commander Jadhav commenced before a Field
General Court Martial ("FGCM'') [Volume 2/Annex 23/page 2]. On the first day of the
hearing, Commander Jadhav requested an adjournment ofthree weeks to prepare his
defence in conjunction with his Defending Officer and that adjournment was granted.
46. On 19 October 2016, the FGCM proceedings against Commander Jadhav resumed
[Volume 2/Annex 23/page 2]. Commander Jadhav was provided with access to
representation in the form of a qualified Defending Officer, who was appointed to
advance Commander Jadhav's defence before the FGCM [Volume 2/Annex 23/page 2-
see also the statement made by Commander Jadhav set out at page 29/para 107
below].
47. On 3 November 2016, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan' s Ministry of Foreign Affairs which again referred to the ''purported' arrest of
Commander Jadhav and requested access to him [Volume 2/Annex 13.8].
to believe that it was made voluntarily: and, when he records any confession, he shall make a memorandum
at the foot of such record to the following ejfect: ['J have explained to (name) that he is not bound to make a
confession and that, if he does so, any confession he may make may be used as evidence against him and 1
believe] that this confession was voluntarily made. lt was taken in my presence and hearing, and was read
over to the persan making it and admitted by him to be correct, and it contains a full and true account of
the statement made by him. (Signed) A.B., Magistrale
Explanation. lt is not necessary that the Magistrale receiving and recording a confession or statement
should be a Magistrale havingjurisdiction in the case" [Volume 5/Annex 82].
Page 16 of 147
48. On 29 November 2016, the FGCM proceedings against Commander Jadhav resumed
[Volume 2/Annex 23/page 2].
49. On 19 December 2016, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan' s Ministry of Foreign Affairs which again referred to the ''purported' arrest of
Commander Jadhav and requested access to him [Volume 2/Annex 13.9].
50. On 2 January 2017, H.E. Sartaj Aziz, the then Adviser to the Prime Minister of Pakistan
on Foreign Affairs ("the Adviser") sent a letter to H.E. Antonio Guterres, the UN
Secretary-General, in which, inter alia, the following was stated [Volume 2/Annex 15]:
"Earlier this year, our law enforcement authorities apprehended an agent of the
Indian intelligence agency RA W, Kulbhushan Jadhav, from the Balochistan Province
of Pakistan. Jadhav is a serving officer of the Indian Navy, working for RA W In his
confessional statement, Jadhav admitted ta his involvement in activities aimed at
destabilizing Pakistan. These include providing support ta terrorist elements ta carry
out activities aimed at killing or maiming Pakistani citizens in Balochistan and
Karachi. Investigations in the case are ongoing andfurther cancre te details of his
activities will be shared with the United Nations
The arrest of Kulbhushan Jadhav and his confessional statement has vindicated
Pakistan 's longstanding position that India is involved in activities aimed at
destabilizing Pakistan. It is using terrorism as an instrument of state policy ta
achieve these ends. Such activities are in clear contravention of Article 2(4) of the
Charter of the United Nations that refrain states from the threat or use of force
against the territorial integrity or political independence of any state. India 's actions
are also in violation of the various Security Council resolutions particularly 1373
and those related ta Taliban/Al-Qaeda/ISIL and international conventions on
terrorism".
51. This is not the conduct of a State engaged in "pre-meditated murder". This is the conduct
of a responsible member of the international community seeking to draw attention to
heinous violations oflnternational Law.
Pakistan Requests Assistance from India in the Investigation of Terrorism
52. As is routine in cross-border investigations and proceedings, on 23 January 2017,
Pakistan' s Ministry of Foreign Affairs sent to the Indian High Commission in Islamabad
a Request for Mutual Legal Assistance ("MLARequest") seeking the assistance of the
Government oflndia in obtaining evidence, material and record for the criminal
investigation of Commander Jadhav' s activities [Volume 2/ Annex 17].
Page 17 of 147
53. Tellingly, India (both in its Application/Request for the Indication of Provisional
Measures on 8 May 2017 and in its Memorial on 13 September 2017) has chosen to
adduce only the first page (i.e. the cover letter) in evidence before the Court but has failed
to adduce any of the substantive material attached to that letter.
54. Pakistan at the Provisional Measures Hearing on 15 May 2017 adduced the entirety of the
MLA Request in evidence [Volume 1/Annex 4/page 22], and does so again. Amongst
other things, the MLA Request asked India for assistance in obtaining statements of 13
identified individuals and access to records and materials, namely: (i) a search of
Commander Jadhav' s flat/house; (ii) certified records of Commander Jadhav' s cell phone
records; and (iii) certified records of Commander Jadhav's bank account and those ofhis
family [Volume 2/Annex 17/pages 2-3]. Unfortunately, however, Pakistan received no
substantive response from India toits MLA Request. This remains the position despite
reminders sent on 31 May 2017, 30 August 2017 and 26 October 2017 [Volume 2/Annex
42; Annex 43; Annex 44].
55. On 3 February 2017, India's Ministry ofExternal Affairs sent a demarche to the High
Commissioner for Pakistan in New Delhi which again referred to the "purported' arrest
of Commander Jadhav and requested access to him [Volume 2/Annex 13.10]. The
Mini stry of External Aff airs stated that Commander J adhav' s Indian nati onality "has been
affirmed on several occasions by the Government of Pakistan" and also referred to
Commander Jadhav' s "coerced' confession ( without a shred of evidence in support of
that allegation).
56. Despite the opportunity to provide explanations regarding Commander Jadhav' s entry,
presence and activities in Pakistan afforded by Pakistan' s MLA Request dated 23 January
2017, India' s Ministry of External Affairs asserted that "the circumstances of his
presence in Pakistan remain unexplained'. With respect, it was open to India to
categorically refute the detailed facts as stated by Commander Jadhav, as opposed to
evade them. Furthermore, whilst Pakistan assumed the illegal acts carried out by
Commander Jadhav were done on behalf oflndia (as he confessed), the onus was (and
remains) on India to provide lawful evidence that he is an Indian national.
57. On 12 February 2017, the FGCM proceedings against Commander Jadhav resumed
[Volume 2/Annex 23/page 2].
58. On 3 March 2017 (incorrectly dated 31 March 2016 in the Note Verbale itself), the Indian
High Commission in Islamabad sent a Note Verbale to Pakistan' s Ministry of Foreign
Affairs which again referred to the "purported' arrest of Commander Jadhav and
requested access to him. Again, no response was made by India to Pakistan' s MLA
Request [Volume 2/Annex 13.11].
59. On 21 March 2017, Pakistan's Ministry ofForeign Affairs sent a Note Verbale to the
Indian High Commission in Islamabad stating that access to Commander Jadhav "shall be
Page 18 of 147
considered, in the light of Indian side 's response ta Pakistan 's request for assistance in
investigation process and early dispensation a/justice" [Volume 2/Annex 14].
60. There was certainly no doubt at this juncture that Pakistan was prepared in principle to
allow India consular access to Commander Jadhav. Unfortunately, India was not and is
not prepared to assist in the investigation and collection of evidence in relation to the
underlying offences committed by Commander Jadhav in the manner sought by
Pakistan' s MLA Request, or indeed any meaningful manner.
61. On 31 March 2017 (incorrectly dated 31 March 2016 in the Note Verbale itself), the
Indian High Commission in Islamabad sent a Note Verbale to Pakistan' s Ministry of
Foreign Affairs [Volume 2/Annex 13.12]. India stated that it noted "the willingness of the
Pakistan side ta provide consular access". Thus, it is clear that India plainly understood
that Pakistan was prepared in principle to allow India consular access to Commander
Jadhav. Again, however, no response was made by India to Pakistan' s MLA Request.
Regrettably, India (as with other statements it made) now seeks to sidestep its previously
stated position, for the purposes it pursues in these proceedings.
62. On 10 April 2017, Pakistan's Ministry of Foreign Affairs sent a Note Verbale to the
Indian High Commission in Islamabad reiterating that access to Commander Jadhav
"shall be considered, in the light of India 's response ta Pakistan 's request for assistance
in the investigation process and early dispensation of justice which is still pending with
the Indian side" [Volume 2/Annex 19].
63. With respect, in the context of the serious crime of espionage, the failure oflndia - "the
sending State" - to provide any explanation at all in response to legitimate questions
would be most unlikely to engender trust or confidence that any communication by its
officials with its alleged (and subsequently proven) spy, whose mission was to kill and
destroy, would be purely innocent.
Conviction and Sentence
64. On 10 April 2017, Pakistan's Inter Services Public Relations ("ISPR") (the media arm of
the Pakistan Armed Forces) issued a Press Release stating as follows [Volume 2/Annex
20]:
"Indian RA W Agent/ Naval officer 41558Z Commander Kulbushan Sudhir Jadhav alias
Hussein Mubarak Patel was arrested on March 3, 2016 through a Counter Intelligence
Operation from Mashkel, Balochistan, for his involvement in espionage and sabotage
activities against Pakistan. The spy has been tried through Field General Court Martial
(FGCM) under Pakistan Army Act (PM) and awarded death sentence. Today COAS,
Gen Qamar Javed Bajwa has conjirmed his death sentence awarded by FGCM
RA W agent Commander Kulbushan Sudhir Jadhav was tried by FGCM under section 59
of PakistanArmy Act (PAA) 1952 and Section 3 of official Secret Act of 1923. FGCM
Page 19 of 147
found Kulbushan Sudhir Yadhav guilty of all the charges. He confessed before a
Magistrate and the Court that he was tasked by RA W ta plan, coordinate and organize
espionage / sabotage activities aiming ta destabilize and wage war against Pakistan by
impeding the efforts of Law En forcement Agencies for restoring peace in Balochistan and
Karachi.
The accused was provided with defending officer as per le gal provisions".
65. Section 59 of the Army Act 1952 [Volume 5/Annex 83] provides, at relevant part:
"59. Civil offences.-(1) Subject ta the provisions of subsection (2), any persan subject ta
this Act who at any place in or beyond Pakistan commits any civil offence shall be
deemed ta be guilty of an offence against this Act and, if charged therewith under this
section, shall be fiable ta be dealt with under this Act,
and, on conviction, ta be punished as follows, that is ta say, ---
(a) if the offence is one which would be punishable under any law in force in Pakistan
with death or with imprisonmentfor life, he shall be fiable ta suifer any punishment
assigned for the offence by the aforesaid law or such less punishment as is in this Act
mentioned ...
(4) Notwithstanding anything contained in this Act or in any other law for the time being
in force a persan who becomes subject ta this Act by reason of his being accused of an
offence mentioned in clause (d) of sub-section (1) of section 2 shall be fiable ta be tried or
otherwise dealt with under this Act for such offence as if the offence were an o ffence
against this Act and were committed at a time when such persan was subject ta this Act;
and the provisions of this section shall have effect accordingly".
66. Section 3 of the Official Secrets Act 1923 [Volume 5/Annex 84] provides, at relevant
part:
"3. Penalties for spying.
(1) If any persan for any purpose prejudicial ta the safety or interests of the State-
(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited
place; or
(b) makes any sketch, plan, mode!, or note which is calculated ta be or might be or is
intended ta be, direct/y or indirect/y, use.fui ta any enemy; or
(c) obtains, collects, records or pubfishes or communicates ta any other persan any secret
official code or pass word, or any sketch, plan, mode!, article or note or other document
or information which is calculated ta be or might be or is intended ta be, direct/y or
indirect/y, useful ta an enemy;
(2) On a prosecutionfor an offence punishable under this section with imprisonmentfor a
term which may extend ta fourteen years, it shall not be necessary ta show that the accuse
Page 20 of 147
persan was guilty of any particular act tending ta State, and notwithstanding that no such
act is proved against him, he may be convicted, if from the circumstances of the case or
his conduct or his known character as proved, it appears that his purpose was a purpose
prejudicial ta the safety or interest of the State; and if any sketch, plan, mode!, article,
note, document, or relating ta any thing in such a place, or any secret officiais code or
pass word is made, obtained, collected, recorded, published or communicated by any
persan other than a persan acting under lawful authority, andfrom the circumstances of
the case or his conduct or his purchase prejudicial ta the safety or interests of the State,
such shall be presumed ta have been made, obtained, collected, recorded, published or
communicated for a purpose prejudicial ta the safety or interest of the State.
(3) A persan guilty of an offence under this section shall be punishable,-
(a) where the offence committed is intended or calculated ta be, direct/y or indirect/y, in
the interest or for the bene.fit of a foreign power, or is in relation ta any work of defence,
arsenal, naval, military or air force establishment or station, mine-field, factory,
dockyard, camp, ship or aircraft or otherwise in relation ta the naval, military or air
force affaires of Pakistan or in relation ta any secret official code, with death or with
imprisonment for a term which may extend ta fourteen years ... "
67. On 10 April 2017, India's Ministry ofExternal Affairs sent a Note Verbale to the
Pakistani High Commission in New Delhi in which the trial of Commander Jadhav was
described as ''farcicaf' and stated that if Commander Jadhav' s death sentence was carried
out, India "will regard it as a case of premeditated murder" [Volume 2/ Annex 13.13].
Again, no substantive response was made by India to Pakistan' s MLA Request.
68. On 11 April 2017, the External Affairs Minister oflndia made a statement in the Rajya
Sabha (the Upper House of the Parliament oflndia) on the case of Commander Jadhav in
which she stated, inter alia:
"4. Given this exchange, it is extraordinary that yesterday, a decision is suddenly
announced awarding a death sentence in this case when previous exchanges with India
itself underlines the insufficiency of evidence. Ta make matters even more absurd, three
hours ajter the death sentence was announced, the Indian High Commission received an
official communication from the Foreign Ministry of Pakistan reiterating the Pakistani
proposai for conditional consular access. That tells us a lot about the farcical nature of
the alleged proceedings which have led ta an indefensible verdict against an innocent
kidnapped Indian.
5. Our position on this matter is clear. There is no evidence of wrongdoing by Shri
Jadhav. If anything, he is the victim of a plan that seeks ta cast aspersions on India ta
deflect international attention from Pakistan 's well-known record of sponsoring and
supporting terrorism. Under these circumstances, we have no choice but ta regard the
sentence, if carried out, as an act of pre-meditated murder".
Page 21 of 147
[Volume 2/Annex 21]
69. Despite having received the MLA Request, the External Affairs Minister asserted that
there was "no evidence ofwrongdoing". Indeed, what is ''farcicaf' (with respect) is the
assertion that Commander Jadhav was kidnapped from within Iranian territory and
transported across the border (apparently at least a nine hour journey by car from
Chabahar and an approximately 3 hour journey by car from Saravan) [Volume 6/Annex
139]) for the purposes of engaging in his "premeditated murder" - after more than a year
had passed since he was arrested during which period India was asked to provide
assistance for the investigation of Commander Jadhav - and patently avoided doing so.
70. At thisjuncture, given India's vociferous criticism of the application of the death penalty
in Pakistan (which appears to have been at the root of the Request for the Indication of
Provisional Measures and the "pre-meditated murder" rhetoric), the following points are
noted:
70.1. India maintains the death penalty for certain offences;
70.2. Indeed, on 31 August 2015, the Law Commission oflndia provided the
Government oflndia with its Report No. 262 [Volume 6/Annex 122/page 217] on
the death penalty, in which it recommended the retenti on of the death penalty for
terrorism offences:
"7.2.3 Although there is no validpenologicaljustificationfor treating terrorism
dif.ferently from other crimes, concern is often raised that abolition of the death
penalty for terrorism related offences and waging war, will affect national security.
However, given the concerns raised by the law makers, the commission does not see
any reason ta wait any longer ta take the first step towards abolition of the death
penalty for all offences other than terrorism related offences.
7.2.4 The Commission accordingly recommends that the death penalty be abolished
for all crimes other than terrorism related offences and waging war".
70.3. At the time of this Counter-Memorial, India is nota party to the First Optional
Protocol to the ICCPR Recognising the Jurisdiction of the Human Rights Committee
[Volume 6/Annex 123; Annex 124]. Pakistan therefore questions India's reliance in
its Memorial upon the decisions of a body that it does not recognise the jurisdiction
of In addition, India is nota party to the Second Optional Protocol to the ICCPR
Toward the Abolition of the Death Penalty [Volume 6/Annex 125; Annex 126].
70.4. Recently, India voted against a Human Rights Council resolution ("36/17. The
question of the death penalty") dated 29 September 2017 at the thirty-sixth session of
the Human Rights Council on the question of the death penalty which (at paragraph
7): "Calfs upon States ta comply with their obligations under article 36 of the Vienna
Page 22 of 147
Convention on Consular Relations, and ta inform foreign nationals of their right ta
contact the relevantconsular post" [Volume 6/Annex 127]2.
70.5. India has repeatedly voted against UN General Assembly Resolutions
imposing a Moratorium on the Death Penalty, including those in 2007, 2008, 2010,
2012, 2014 and 2016 [Volume 6/ Annexes 128-133].
71. Thus, with respect, it is somewhat inconsistent for India to use such language focusing on
the sentence imposed on Commander J adhav.
72. Continuing with the chronology ofkey facts, on 13 April 2017, in a weekly media
briefing for India's Ministry ofExternal Affairs, an Official Spokesperson stated, inter
alia, [Volume 2/Annex 22/page 5/para. 6]:
"As ta the question of his so-called Jake identity or original Indian passport, we can only
ascertain all this once we have consular access. We have not seen the passport but it
certainly begs a question if the allegation is that he is serving officer of Indian Navy and
a spy, it begs the question what type of a serving officer and spy will carry his original
passport with him especially if he is going ta a country on "spying mission"".
73. This was despite a copy and relevant details of the passport in the name of 'Hussein
Mubarak Patel' having been sent to India on 23 January 2017 as part of the MLA
Request. Indeed, the Official Spokesperson must therefore be taken to know that
Commander Jadhav was carrying an authentic passport with a false identity - not his
"original passport". It is those indisputable facts which "beg" questions India refuses to
answer.
Press Statement by Adviser ta the Prime Minister of Pakistan on Foreign A.flairs
74. On 14 April 2017, the Adviser gave a very detailed Press Statement in which he set out
the facts of Commander Jadhav' s arrest, trial, conviction and sentence, as well as avenues
for appeal and clemency available to Commander Jadhav [Volume 2/Annex 23].
75. H.E. Sartaj Aziz's Press Statement included the following key points:
75.1. Commander Jadhav was apprehended on 3 March 2016 after he illegally
crossed over into Pakistan from the Saravan border in Iran.
75.2. He was found in possession of an Indian passport, and confessed that he was a
resident of Mumbai, India, still serving in the Indian Navy and was due to retire in
2022.
2 The other States which voted against the resolution were Bangladesh, Botswana, Burundi, China, Egypt,
Ethiopia, Iraq, Japan, Qatar, Saudi Arabia, United Arab Emirates and United States of America.
Page 23 of 147
75.3. Commander Jadhav was tried by Field General Court Martial under Section 59
of the Pakistan Army Act 1952 and Section 3 of the Official Secrets Act 1923, and
was provided with representation in accordance with the provisions oflaw.
Commander Jadhav confessed that he was tasked by RA W to plan, coordinate and
organize espionage and sabotage activities aimed at destabilizing and waging war
against Pakistan.
75.4. Commander Jadhav was involved in both espionage and terrorist/sabotage
activities resulting in the loss of many lives and damage to property, and 7 examples
of such terrorist activities were given by H.E. Sartaj Aziz.
75.5. The proceedings of the case, from the confessional video statement of
Commander Jadhav on 25 March 2016 to the confirmation of the death sentence on
10 April 2017, lasted over a year and went through different stages in accordance
with legal requirements.
75.6. A number of steps were taken during the legal proceedings to ensure
transparency, including the recording of his confessional statement before a
Magistrate under section 164 of the Code ofCriminal Procedure; proceedings were
conducted under the Law of Evidence (Qanun-e-Shahadat 1984) in the competent
court; a qualified field officer was appointed to defend him; all statements of
witnesses were recorded under oath in the present of the accused in court, and
Commander Jadhav was allowed to ask questions; and a full y qualified law officer of
Judge Advocate General Branch remained part of the Court during the trial.
75.7. H.E. Sartaj Aziz identified the options available to Commander Jadhav and
applicable time limits, namely the right of appeal, a mercy petition to the Chief of
Army Staff ("COAS"), and a mercy petition to the President of Pakistan.
75.8. A Letter of Assistance requesting specific information and access to certain
key witnesses was shared with the Government oflndia on 23 January 2017, but no
response was received.
76. The Adviser made reference to the fact that India had not responded to Pakistan' s MLA
Request and made the following specific request of the Govemment oflndia [Volume
2/Annex 23/page 3]:
"I would like ta ask India why Kulbushan Jhadav was using a Jake identity impersonating
as a Muslim? Why would an innocent man possess two passports, one with a Hindu name
and another with a Muslim name? Since India has no credible explanation about why
their serving Naval Commander was in Balochistan, it has unleashed aflimsy
propaganda campaign. Inflammatory statements and rhetoric about "pre-meditated
murder" and "unrest in Balochistan ", will only result in escalation, serving no useful
purpose".
Page 24 of 147
77. On 14 April 2017, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan's Ministry of Foreign Affairs which requested access to Commander Jadhav and
copies of the charge sheet andjudgment of the FGCM [Volume 2/Annex 13.14]. Again,
no response was made by India to Pakistan' s MLA Request.
78. On 17 April 2017, theDirectorGeneral ofPakistan'sinter Services Public Relations,
Major General Asif Ghafoor, is reported to have stated that Commander Jadhav was not
entitled to consular access. A press report apparently in J ehan Pakistan newspaper (18
April 2017) was deployed by India previously (the said newspaper is nota newspaper of
record and its accuracy is not accepted). Nevertheless, no doubt to advance its
contentions, India relies upon this newspaper which purports to state that the Director
General remarked:
"Kulbhushan Jadhav was sentenced ta death by a Field General Court Martial ajter
fuljilling all legal requirements. Kulbhushan Jadhav was apprehended on the basis of
Jake name, Jake identity and Jake passport. No compromise has been made and would not
be made. Jadhav is a spy and consular access can 't be given ta a spy".
[Volume 2/Annex 24]
79. However, the official ISPR statement of the date referred to in the translation of the Jehan
newspaper report makes no reference to such comments [Volume 2/Annex 25].
80. On 18 April 2017, it was reported in The Hindustan Times that the External Affairs
Minister oflndia had stated in the Lok Sabha (the Lower House oflndia's Parliament,
comprised ofrepresentatives of the people chosen by direct election), during the course of
discussions concerning the potential drafting of a resolution condemning Pakistan, that
Commander Jadhav could not be a spy because he had a "valid Indian visa" [Volume
2/Annex 26]. Assuming this leading Indian newspaper carried an accurate report, the
"explanation" given simply raises more questions.
81. On 19 April 2017, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan's Ministry of Foreign Affairs which requested [Volume 2/Annex 13.15]: (i) the
provision of certified copies of the charge sheet, proceedings of the Court oflnquiry, the
judgment and the summary of evidence in the case of Commander Jadha v; (ii) the sharing
of the procedure for appeal to the relevant court; (iii) the facilitation of the appointment of
a defence lawyer for Commander Jadhav and contact with the Indian High Commission
in Islamabad; (iv) the provision of a certified copy of a medical report of Commander
Jadhav; (v) the issuing of appropriate visas to Commander Jadhav's family members to
travel to Pakistan; (vi) the provision of consular access to Commander Jadhav.
82. Yet again, India evaded Pakistan' s MLA Request.
83. In a Press Briefing on 20 April 2017, the Spokesperson for Pakistan' s Ministry of Foreign
Affairs, in the course of answeringjoumalists' questions concerning Commander Jadhav,
Page 25 of 147
drew attention to the 2008 Agreement on Consular Access between India and Pakistan
and stated [Volume 2/Annex 27/page 1]:
"Then regarding consular access we have said this earlier also that we have bilateral
agreement on consular access and according ta Art IV, in all such cases as the one of
Commander Kulbhushan the request of this nature would be decided on the basis of
merits". [N.B. The version of the transcript ofthis press briefing adduced in evidence by
In dia i s des cri bed on i ts face as a "rush transcri pt". The reference to "Art IV" should in
fact read "Art VI".]
84. The Spokesperson went on to state of Commander Jadhav, inter alia, as follows [Volume
2/Annex 27 /page 2]:
"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.
The reaction from India, especially withholding the release of Pakistani prisoners, who
have completed their sentences, for a spy and terrorist working against Pakistan 's
national interests, is disappointing. Inflammatory statements emanating from India are
against international norms and will only result in escalation, serving no constructive
purpose. Indian reaction should be seen in the backdrop of exposure of its state
involvement in perpetrating subversive and terrorist activities in Pakistan.
I would once again underscore the point that Indian reaction must be seen in the
backdrop of its exposure of involvement in terrorism and terror-financing in Pakistan".
85. On 21 April 2017, writing in The Indian Express, the highly respected Indianjoumalist,
Mr. Karan Thapar (formerly ofCNN), had asked India's Ministry ofExtemal Affairs to
explain why Commander Jadhav had been in possession oftwo passports in two different
names [Volume 2/Annex 28]. The Ministry ofExtemal Affairs reportedly responded that
the answer could be obtained only iflndian officials managed to gain access to
Commander Jadhav. The joumalist wrote: "But why not check the record attached ta the
passport numbers? Surely they would tell a story?" - quite. No response from the
Ministry ofExternal Aff airs was reported.
86. It would appear from Mr. Thapar' s Wikpedia page that his article "caused great hue and
cry in Indian including article 's comment section asking why Mr Thapar is showing such
an anti-national stand against his own country fellow persans on sensitive issues which
can embarrass its own country in International level" [Volume 2/Annex 29].
87. The same article by Mr. Thapar also quoted one Amarjit Singh Dulat, identified ( on the
website of the Indian Institute of Peace & Conflict Studies, of which he is a member of
staff [Volume 2/Annex 30]) as a former Chief ofRAW and a former special director of
India' s Intelligence Bureau), as "unhesitatingly said Jadhav could be a spy" [Volume
Page 26 of 147
2/Annex 28], but that if he was then the Government of India would be very unlikely to
admit that fact.
88. On 26 April 2017, a petition and appeal by the mother of Commander Jadhav was handed
by the Indian High Commissioner in Islamabad to the Foreign Secretary of Pakistan
[Volume 2/Annex 13.16].
89. On 27 April 2017, the External Affairs Minister oflndia wrote to H.E. Sartaj Aziz, the
then Adviser, requesting [Volume 2/Annex 31]: (i) the provision of certified copies of the
charge sheet, proceedings of the Court oflnquiry, the judgment and the summary of
evidence in the case of Commander Jadhav; (ii) the appointment of a defence lawyer for
Commander Jadhav and his contact details; (iii) the provision of a certified copy of a
medical report of Commander Jadhav; and (iv) the issuing of appropriate visas to
Commander Jadhav' s family members to travel to Pakistan. Again, no response was made
by India to Pakistan' s MLA Request.
90. On 27 April 2017, it was reported in The New Indian Express that two Indian "defence
experts" identified as P.K. Sehgal (a retired Major-General of the Indian Army) and
Qamar Agha had "bath opined that the denial [of consular access} hints towards that
Kulbhushan has already been tortured ta an extent that either he is already dead or no
longer in a condition that he can be presented in.front of the Indian consulate" [Volume
2/Annex 32].
India institutes the instant proceedings
91. On 8 May 2017, and without any prior intimation to Pakistan, India filed an Application
instituting the instant proceedings before the Court. In its Application (at paragraph 60)
India sought the following relief:
"(1) A reliefby way ofimmediate suspension of the sentence of death awarded ta the
accused.
(2) A relief by way of restitution in interregnum by declaring that the sentence of the
military court arrived at, in brazen de fiance 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 ta be given effect as mandated under Article 14 of the
1966 International Covenant on Civil and Political Rights, is violative of international
law and the provisions of the Vienna Convention, and
(3) Restraining Pakistan from giving effect ta the sentence awarded by the military court,
and directing it ta take steps ta annul the decision of the military court as may be
available ta it under the law in Pakistan.
(4) If Pakistan is unable ta annul the decision, then this Court ta 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 ta the
Page 27 of 147
sentence or the conviction in any manner, and directing it ta release the convicted Indian
National forthwith".
92. At the same time, India filed a Request for the Indication of Provisional Measures seeking
(at paragraph 22) the Court to indicate the following provisional measures:
"(a) That the Government of the Islamic Republic of Pakistan take all measures necessary
ta ensure that Mr. Kulbhushan Sudhir Jadhav is not executed;
(b) That the Government of the Islamic Republic of Pakistan report ta 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 ta any decision this Court may render on the merits of the case".
93. In its Request for the Indication of Provisional Measures, India contended (at paragraph
23) that the situation concerning Commander Jadhav was sufficiently grave and
immediate as to justify the Court granting Provisional Measures without affording an
opportunity for Pakistan to appear and make submissions before the Court:
"In view of the extreme gravity and immediacy of the threat that authorities in Pakistan
will execute an Indian citizen in violation of obligations Pakistan owes ta India, India
respectfully urges the Court ta treat this Request as a matter of the greatest urgency and
pass an order immediately on provisional measures suo-motu without waitingfor an oral
hearing'.
94. In its letter to the Court of 8 May 2017 submitting the Application and the Request for the
Indication of Provisional Measures [Volume 1/Annex 1], India stated:
"The request for provisional measures is of extreme urgency. Given the lack of
transparency in the entire trial process, there is a high likelihood that Pakistani
authorities may execute Indian national Kulbhushan Sudhir Jadhav at any time without
any notice and this eventuality would de prive bath this Court and India of the opportunity
ta have the case decided on its merits".
95. On 9 May 2017, as is normal in such circumstances, the President of the Court wrote a
letter to the Prime Minister of Pakistan in the exercise of the power under Article 74( 4) of
the Rules of Court calling upon the Government of Pakistan, pending the Court's decision
on India' s Request for the Indication of Provisional Measures, "ta act in such a way as
will enable any order the Court may make on this Request ta have its appropriate effects"
[Volume 1/Annex 3].
96. On 15 May 2017, the Court held a hearing on Provisional Measures. The verbatim
transcripts of that hearing and Pakistan' s written submissions to the Court are exhibited to
this Counter-Memorial for ease ofreference [Volume 1/Annex 5].
Page 28 of 147
97. On 18 May 2017, the Court indicated the following Provisional Measures [Volume
1/Annex 6/page 15/para 61]:
"Pakistan shall take all measures at its disposai ta ensure that Mr. Jadhav is not executed
pending the final decision in these proceedings and shall inform the Court of all the
measures taken in implementation of the present Order".
98. Not without significance, in its Ortler, the Court also stated [Volume 1/Annex 6/page
13]:
"56. The Court notes that the issues brought before it in this case do not concern the
question whether a State is entitled ta resort ta the death penalty. As it has observed in
the past, "the fonction of this Courtis ta resolve international legal disputes between
States, inter alia when they arise out of the interpretation or application of international
conventions, and not ta actas a court ofcriminal appeal" (LaGrand (Germany v. United
States of America), ProvisionalMeasures, Order of 3 March 1999, IC.J Reports 1999
(1), p.15, para. 25; Avena and Other Mexican Nationals (Mexico v. United States of
America), Provisional Measures, Or der of 5 Fe bruary 200 3, I C.J Reports 2 00 3, p. 89,
para. 48)". (emphasis added)
99. Separate opinions were delivered by Judge Bhandari oflndia, and Judge Cançado
Trindade ofBrazil.
100. On 31 May 2017, Pakistan's Ministry of Foreign Affairs sent a letter to the Indian
High Commission in Islamabad concerning India' s continued failure to respond to or
engage with Pakistan' s MLA Request, and drew attention, inter alia, to India' s failure to
explain "as ta how and in what circumstances Commander Jadhav came ta be in
possession of this passport bearing a false name ". India' s cooperation and assistance in
the investigation of "the most serious acts of terrorism conducted by its nationals" was
again sought - to no avail [Volume 2/Annex 42/page 2].
101. On 8 June 2017, Pakistan' s Ministry of Foreign Affairs sent a letter to the Court
responding to the Court's indication of Provisional Measures stating:
"Without prejudice ta Pakistan 's position on jurisdiction and justiciability of the matter
before the Court and the domestic le gal processes concerning the investigation,
conviction and sentencing of Commander Kulbhushan Sudhir Jadhav (under the caver
name Hussein Mubarak Patel bearing Indian Passport number L9630722) on charges of,
inter alia, espionage, sabotage and terrorism, the Government of the Islamic Republic of
Pakistan has instructed the relevant departments of the government ta give effect ta the
Order of the Court dated 18 May 2017. We reiterate that le gal processes remain
available ta Commander Jadhav" [Volume 1/ Annex 9].
Page 29 of 147
102. On 8 June 2017, the President of the Court held a meeting to fix the time limits for the
filing of the written pleadings. On 13 June 2017, the Court made an Ortler fixing the time
limits for the filing of the initial pleadings. India was given until 13 September 2017 to
file its Memorial. Pakistan was given until 13 December 2017 to file its CounterMemorial
[Volume 1/Annex 10].
103. On 19 June 2017, India's Ministry ofExternal Affairs sent a letter to Pakistan's
Mini stry of Foreign Aff airs as a purported response to Pakistan' s 1 etter of 3 1 May 201 7,
and purported to return Pakistan' s MLA Request, without engaging with any of its
substantive content [Volume 2/Annex 33].
104. On 20 June 2017, Pakistan's then High Commissioner in New Delhi reiterated in an
interview with The Hindu newspaper that Commander Jadhav was able to petition for
clemency first to the COAS and then to the President of Pakistan [Volume 2/Annex 34].
As explained above, this had already been made clear to India and to the rest of the world
by the Adviser in his Press Statement on 14 April 2017 [Volume 2/Annex 23/pages 2-3].
Commander Jadhav 's Continued Confession
105. On 22 June 2017, Pakistan's ISPR issued a Press Release stating that Commander
Jadhav "has made a mercy petition ta the Chief of Army Staff' and that Commander
Jadhav "had earlier appealed ta the Military Appellate Court which was rejected. Under
the law he is eligible ta appeal for clemency ta the COAS (which he has done) and if
rejected, subsequently ta the President of Pakistan" [Volume 2/ Annex 35/pages 1-2].
106. A video of a contrite statement by Commander Jadhav (made prior to 10 April 2017)
was shown at this press conference and will be adduced in evidence. The transcript of that
further confession was attached to the aforementioned press release [Volume 2/Annex
35/pages 2-3] and is set out in full below:
"TRANSCRIPT OF 2ND STATEMENT OF COMMANDER KULBHUSHAN SUDHIR
JADHAV
I am Commander Kulbhushan Sudhir Jadhav. Number 41558 Zulu of the Indian Navy I
am a commissioned officer in the Indian Navy. And my alias name was Hussain Mubarak
Patel. And I was basically; I'd visited Karachi on 2 occasions in 2005 and 2006 for basic
intelligence gathering on Naval installations and subsequent detail. Basically gathering
information on the landing sites around Karachi and various naval vessels or whatever I
could gather about the navy.
The RA W officiais had started sniffing that the Modi government will be in power by
2014. Sa I was inducted and my services were handed over ta Research and Analysis
Wing (RA W). And the aim was ta see that all the activities around the Mekran Coast and
Karachi and Balochistan Interior. Turbat and Quetta were ta be organized and nicely
coordinated.
Page 30 of 147
Subsequently, me along with Anil Kumar had a meeting with Alok Joshi [ former chief of
RA W]. Where in the plans and the finalization of the activities along the Mekran Coast
and Karachi were finalized I was stationed in Chahbahar, The Iranian Port City under a
fictitious name "Hussein Mubarak Patel" and I was running a business there "Kaminda
Trading company ". It was a discreet non embassy based operation exclusive/y meant ta
conduct meetings with Baloch insurgents and terrorists. The aim of these meetings was
always ta see that the Aims and the Targets of RA W ta conduct the various terrorist
activities within Balochistan are conveyed properly ta the insurgents and any kinds of
requirements of them are conveyed back ta the RA W officiais.
My purpose of this time visit ta Pakistan was ta establish and meet the basic leadership of
Baloch sub nationals, the ELA or the BRA and establish and Infiltrate around 30 ta 40
RA W operatives along the Mekran Coast for Operations along with Baloch sub nationals
and miscreants or Terrorists.
The aim was ta have RA W operatives on field sa that they could facilitate and help the
Baloch sub nationals in carrying out precision targets ta be carried out. Precision, I
would say sort of a military sort of a connection to the entire Operation.
Balochistan doesn 't have a movement on the sea, sa the aim was ta raise within the
Baloch sub nationals a seafront, sa that the activities could be properly coordinatedfrom
the sea side and subsequently taken on further inwards, may be Quetta or Turbat or
maybe interiors ofvarious places.
The subsequent activities which were then handed over by RA W when I subsequently
started working for Research and analysis wing, the main aim was focused ta Balochistan
and the Karachi region. The idea was ta see ta it that the sub nationals with in this region
were facilitated and supported financially and with arms and Ammunition, weapons and
some kind of maybe man and material movement also across the coast.
Sa me being a naval officer I was given the task of seeing that how they could be landed
across the Mekran coast, between Gwadar, Jewani or whichever suitable points were
there across this belt. And the main ideology beyond this was that the economic and the
various activities which go along the CPEC [China-Pakistan Economie Corridor] region
between Gwadar and China had ta be distorted and disrupted and some destabilized sa
that the aim was ta Just basically raise the level of insurgency within Balochistan and the
Karachi region.
Research and Analysis Wing through Mr Ani! Kumar has been abetting and financing
and sponsoring a lot of activities within Balochistan and Sindh. The entire Hundi and
Hawala ope rations are undertaken from Delhi and Mumbai via Du bai into Pakistan and
during one such important transaction was the 40,000 dollars which was transferred ta
Baloch sub Nationals via Dubai. Also the finances which are coming into Balochistan
and Sindh for various anti National activities are coming through consulates in Jalalabad
and Kandhar and the Consulate in Zahidan. These are very important consulates which
Page 31 of 147
are used by Research and Analysis Wing ta transfer dollars into the Balochistan
movement.
And one such instance was where I was direct/y involved and I was observing the
transaction was when 40,000 Dollars were recently transferred from India via Du bai ta
one such Baloch National operative within Pakistan.
Research and Analysis Wing and Mr Ani! Kumar on behalf of RA W had been sponsoring
regularly the various terrorist activities within Pakistan. Especially Hazara Muslims,
Shia Muslims who move around on pi/grimage between Iran, Afghanistan and Pakistan
were basically ta be targeted and killed They were already being done, it was being done
but the level had ta be raised ta the very high level sa that the movement completely stops.
Then the targets on various workers of FWO [Frontier Works Organization, a military
engineering organization] who were conducting construction of various roads within
Balochistan and the third major activity was the !ED attacks which were being carried
out by the Baloch sub nationals within Quetta, Turbat or various other cities of
Balochistan. They were being direct/y sponsored by RA W
Mr Ani! Kumar has been sponsoring sectarian violence across Sindh and Balochistan
and also sponsoring various assassinations across this same region sa that instability or
some kind of fear is set into the mindsets of the people of Pakistan, and in one such
process SSP Chaudhary [a Pakistani Superintendent of Police] was assassinated This
was a direct mention by Mr Anil Kumar ta me.
The variousfinancingwhich subsequently happenedfor the TTP [Tehreek-e-Taliban
Pakistan] and various other Afghan anti Pakistani terrorist groups led ta the attack by
TTP on one of the Mehran Naval Bases in which a lot of damage was cost ta the
Pakistani Navy. Other sort of radar installation attack, the Sui pipeline gas attack, then
attacks on civilian bus Stations where some I suppose Pakistani Nationals were being
targeted by Sub Nationals and murdered and massacred sa that a sort of disruption in the
CPEC is done that was beingfunded and direct/y supported by Mr Ani! Kumar. He
wanted it ta be raised ta the next level sa that complete disruption and complete stoppage
of the Economie corridor between Gwadar and China is achieved
One of the operations which was being planned by RA W officiais along with Baloch
insurgents was a military style attack on Zahidan Pakistani consulate. The aim was ta
either attack it with a grenade or some kind of RPG or !ED attack or then try ta harm the
consulate General or some kind of vicious attack on the Pakistani consulate in Zahidan.
It was being militari/y planned, the RA W officiais were involved in Iran and the Baloch
Sub Nationals who were supposed ta carry out the attack or facilitate the entire process
were being involved and I was well aware of the plan which was being conducted and
how it was being planned
RA W was sponsoring the setting up of the modern website, a new website which was
being already run through Nepal which the Balochistan movement was carrying on, on
Page 32 of 147
the Cyber world and the creation of the website, the previous maintenance of the already
existing we bsite was being handled by the Research and Analysis wing from Ne pal,
Kathmandu which was luring people from within Pakistan for various activities ta be
carried out in the future.
This time while crossing over into Pakistan I travelled all the way from Chahbahar in a
private Taxi along with Rakesh [Sub Inspector Rakesh, RAW] ta the Iranian Pakistan
border near Sarawan. From wherein I crossed into Pakistan along with Baloch Sub
Nationals and after about an hour or sa I was apprehended by the Pakistani authorities
in Pakistan.
Basically the movement into Pakistan for me was, I was on a visa and official visa in Iran
and I was moving with my passports sa I carried my passports with till the border almost
sa that if Iranian authorities or Iranian people who are about ta check me or I am
stopped or checked I should have a legitimate reason for movement with in Iran and my
subsequent movement into Pakistan and then backwards. While I was not intending ta
having being caught sa on my movement backwards again I would have had a legitimate
reason ta go about, With that passport with the legitimate visa of Iran.
During my judicial proceedings which were held under the field General court martial, I
was accorded a defense council by the officiais here which were conducting the entire
proceedings.
Today I genuinely after the time having spent in Pakistan I feel very ashamed and I
genuinely seek pardon of the acts and sins and crimes I have committed here against the
Nation and the people of Pakistan".
107. Thus over a period of more than one year, there were repeated and consistent
narrations by Commander Jadhav of his illegal acts.
108. On 1 7 July 2017, a report in The Indian Express reported Indian "defence expert"
P.K. Sehgal (a former Major-General of the Indian Army) as stating that "Pakistan was
trying ta salve the Kulbhushan Jadhav case on its own due ta lack of evidences against
former Indian Naval officer" and that "Pakistan is very much aware that it was a sham
case; sham military trial; they do not have any evidence that is why they are trying ta
finish this case on their own level. Pakistan is trying ta hoodwink the International Court
of Justice ta the extent that is possible" [Volume 2/Annex 36/pages 1-2]. The said article
reported another Indian "defence expert" Praful Bakshi ( who des cri bes himself as an exWing
Commander Fighter Pilot and an ex-Chief Spokesman oflndia' s Ministry of
Defence [Vol urne 2/ Annex 3 71) as stating that "It 's a serious matter that the Pakistan
military court has rejected Jadhav 's mercy petition and declared him as criminal. But,
Kulbhushan Jadhav has more options. The ICJ has already instructed ta Pakistan that
they can prepare their new team and put the case once again in a proper manner. Now, it
depends on the ICJ that what steps it will take. The ICJ is a world body and Pakistan
Page 33 of 147
cannot take it lightly" [Volume 2/Annex 36/page 2]. With respect, the tendentious
comments attributed to these gentlemen manifest their expertise (or otherwise).
109. On 24 July 2017, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan's Ministry of Foreign Affairs which requested access to Commander Jadhav.
Again, no response was made by India to Pakistan' s MLA Request [Volume 2/Annex
13.17].
110. On 3 0 August 2017, Pakistan' s Mini stry of Foreign Aff airs sent a 1 etter to In dia' s
Ministry ofExternal Aff airs concerning India' s continued failure to engage with the
substantive content of Pakistan' s MLA Request and, inter alia, made specific enquiries of
India with regard to Commander Jadhav's passport [Volume 2/Annex 43]:
"5. By way of example, the Government of India was provided with a clear copy of
passport No. L9630722 in the name of 'Hussein Mubarak Patel '.
6. It is incumbent upon the Government of India ta explain:
a) Whether Commander Jadhav is indeed Commander Jadhav or 'Hussein Mubarak
Patel'.
b) Ifhe is not 'Hussein Mubarak Patel', does such a persan exist?
c) If 'Hussein Mubarak Patel' does exist or does not exist, what attempts has the
Government of India made at the very latest since 2 3rd January 2017 ta investi gate how
Commander Jadhav was able ta obtain Passport issued by the competent authorities in
India?
d) The travel history of Commander Jadhav.
7. In the alternative, is it the Government of India 's position that Commander Jadhav
was in possession of afalse and inaccurate document such that either:
a. His name is not 'Hussein Mubarak Patel ': or
b. It is nota passportfrom the competent Indian authorities?
8. If that is the case, does the Government of India consider that Commander Jadhav has
committed a crime or crimes under Indian Law? If sa, what is lare the crimes?
9. The Islamic Republic of Pakistan does not consider that the purported return of the
request in any way excuse the failure on the part of the Republic of India ta comply with
its international obligations as aforesaid. Ta facilitate the Republic of India 's
compliance the request is provided again".
111. On 13 September 2017, India filed its Memorial with the Court.
Page 34 of 147
112. On 20 September 2017, the Indian High Commission in Islamabad sent a Note
Verbale to Pakistan's Ministry of Foreign Affairs which requested access to Commander
Jadhav. Again, no response was made by India to Pakistan' s MLA Request [Volume
2/Annex 13.18].
113. On 9 October 2017, the Indian High Commission in Islamabad sent a Note Verbale to
Pakistan's Ministry of Foreign Affairs which requested access to Commander Jadhav.
Again, no response was made by India to Pakistan' s MLA Request [Volume 2/Annex
13.19].
114. On 11 October 2017, by a letter to the Court, Pakistan nominated the former Chief
Justice of the Supreme Court of Pakistan Tassaduq Hussain Jillani to sit as judge ad hoc
in the instant case [Volume 2/Annex 38].
115. On 26 October 2017, Pakistan' s Ministry of Foreign Affairs sent a letter to India's
Ministry ofExternal Aff airs concerning India' s continued failure to engage with the
substantive content of Pakistan' s MLA Request and, inter alia, reiterated specific
enquiries oflndia with regard to Commander Jadhav's passport asking whether [Volume
2/Annex 44/pages 2-3]:
"(J) Commander Jadhav is indeed Commander Jadhav or 'Hussein Mubarak Patel'
(2) If he is not 'Hussein Mubarak Patel', does such a persan exist?
(3) If 'Hussein Mubarak Patel' does exist or does not exist, what attempts has the
Government of India made at the very latest since 2 3rd January 2017 ta investi gate how
Commander Jadhav was able ta obtain what appears ta be an authentic Indian passport
issued by the competent authorities in India?
(4) In the alternative, is it the Government of India 's position that Commander Jadhav
was in possession of afalse and inaccurate document either:
a. because his name is not 'Hussein Mubarak Patel '; or
b. be cause it is nota passport from the competent Indian authorities?
(5) If that is the case, does the Government of India consider that Commander Jadhav has
committed a crime or crimes under Indian law? If sa, what islare the crimes?
(6) What is the actual authentic passportfor Commander Kulbhushan Sudhir Jadhav
(assuming he was issued with a passport)? Please provide full particulars of the date of
issue, date of expiry, passport number, place of issue, name and photograph in the actual
(presently valid) passport issued ta Commander Jadhav if such a document exists.
Without prejudice ta the foregoing, the Islamic Republic of Pakistan has already put the
Page 35 of 147
Republic of India on notice that it has failed ta establish the Indian nationality of
Commander Jadhav".
116. Pakistan made expressly clear that, if Commander Jadhav was considered by the
Government oflndia to have violated Indian criminal law, then Pakistan would be
prepared to consider assisting India by considering any extradition request that India may
make [Volume 2/Annex 44/page 3].
117. On 6 November 2017, the Registrar of the Court communicated to Pakistan that India
had raised no objection to Pakistan' s nomination of former Chief Justice Jillani to sit as
judge ad hoc in this case [Volume 2/Annex 39].
118. On 10 November 2017, Pakistan's Ministry of Foreign Affairs sent a Note Verbale to
the Indian High Commission in Islamabad stating that: "the Government of Pakistan has
decided ta arrange a meeting of Commander Kulbhushan Jhadev with his wife, on
humanitarian grounds" [Volume 2/Annex 40].
119. This was responded to by a letter dated 13 November 2017 [Volume 2/Annex 41].
120. At the time offinalising the Counter-Memorial the offer of a meeting is the subject of
ongoing correspondence.
Page 36 of 147
III. PRELIMINARY ISSUES MILITATING AGAINST THE
COURT EXERCISING JURISDICTION
121. India refuses to engage with a central question; namely, how is it that Commander
Jadhav (an individual that India admits was a member of its armed forces, but
(conveniently) suggests retired shortly prior to his arrest) was able to travel frequently to
and from India using an authentic Indian passport bearing a false identity in a Muslim
name?
122. The provision of an authentic Indian passport with a false identity and/or possession
thereof ( conduct which is apparently punishable by imprisonment according to the
domestic criminal law oflndia as contained in India' s Passport Act 1967 [Volume
5/Annex 85] and/or Passport Rules 1980 [Volume 5/Annex 86]) raises serious questions
as to the Govemment oflndia' s complicity in or (at the least) facilitation of that course of
conduct by Commander Jadhav.
123. Even if the Govemment oflndia has 'merely' facilitated (as distinct from being
complicit in) Commander Jadhav' s frequent travel by providing an authentic Indian
passport with a false identity, Pakistan respectfully submits that that is sufficient grounds
for the Court to rej ect India' s daim on one or more of the following three grounds: (A)
abuse of process; (B) abuse ofrights; and (C) illegality/unclean hands/ex injuria jus non
oritur.
(A) ABUSE OF PROCESS
124. Pakistan respectfully submits that India' s approach to these proceedings, following its
invocation of the Court' s jurisdiction by its Application and Request for the Indication of
Provisional Measures on 8 May 2017, amounts to an abuse of the Court's process.
125. Robert Kolb, Professor of Public International Law at Université de Genève, has
described the principle of 'abuse of process' in public intemational law as a principle that:
" ... consists of the use of procedural instruments or rights by one or more parties for the
purposes that are alien ta those for which the procedural rights were established ... ".
(Kolb R, 'General Princip/es of Procedural Law' in Zimmerman A, Oellers-Frahm K,
Tomuschat C and Tams CJ (eds), The Statute of the International Court of Justice: A
Commentary (2012), page 904 [Volume 5/Annex 108])
126. The principle of abuse of process has been invoked before the Court on several
occasions. The central premise is that legal processes and rights should not be deployed in
a manner which evinces an improper and/or collateral purpose.
Page 37 of 147
127. InRequestfor Interpretation oftheJudgmento/31 March 2004 in the Case
concerning Avena and Other Mexican Nationals (Mexico v United States of America)
(Mexico v United States of America), Counsel for the United States of America advanced
six propositions, described as "sound propositions of international law", conceming
abuse of the Court's processes (verbatim transcript, Thursday 19 June 2008 at 3pm, page
47, paragraph 7) [Volume 3/Annex 45]:
"7. In developing this submission, Madam President, I have six propositions ta put be fore
you. They are the se:
1. That the Court has an inherent power ta regulate its own proceedings in the interests
of;ustice and in or der ta sa(eguard the integrity of the Court.
2. That that power includes the power ta dismiss applications where they amount ta an
abuse ofprocess.
3. That the Courtis not bound by the party 's characterization of its application.
4. That where a party asserts that it is making an Application ta the Court for a iudgment
or order for a specific purpose and the Court considers that the party is in reality
pursuing some dif{erent purpose which takes the application outside the scope of the
provision on which it is purportedly based. then the Courtis entitled ta dismiss that
application.
5. And specifically, that where it appears ta the Court that a party is making an
application for ajudgment or order solely for the purpose ofbringing pressure upon the
other party ta comply with an earlier Judgment or Order of the Court, the Courtis
entitled ta reject the application on the ground that it amounts ta an abuse of process.
6. And final/y, that the Court may dismiss an application in the circumstances that I have
described at any stage in the proceedings. be cause the dismissal is an exercise of the
Court 's inherent power ta regulate its own proceedings in the interests o[iustice and in
order ta sa(eguard the integrity of the Court". (emphasis added)
128. Notwithstanding that the Court, in the circumstances of that case, did not address
these arguments as advanced by the United States of America, Pakistan respectfully
adopts these propositions, and submits that the Court should apply them in its
consideration oflndia' s commencement of the instant proceedings, as well as India' s
conduct during these proceedings. It should not be a matter of dispute that any court of
justice possesses an inherent power to prevent the misuse of its procedures.
129. In light of the ab ove, Pakistan respectfully submits that, in the instant case, India's
Application and its Request for the Indication of Provisional Measures invoked the
exceptional Provisional Measures jurisdiction and its Memorial seeks from the Court
plainly unavailable relief comprising "remedies and relief far beyond those that would
flow" (in India' s own words in Obligations concerning Negotiations relating ta Cessation
Page 38 of 147
of the Nuclear Arms Race and ta Nuclear Disarmament (Marshall Islands v India3
), if
( contrary to Pakistan' s position), the Court were to find that Pakistan had not compli ed
with Article 36 VCCR 1963 in the instant case. The unavailability of the relief sought by
India is explained further in Section VII below. Again, in India's own words, "the entire
venture has been an abuse of process" (see footnote 3).
(i) Some material facts
130. India brought its Application and the Request for the Indication of Provisional
Measures on the basis of what India projected as the extremely urgent nature of the case,
and wrongly sought to assert (in its Request for the Indication of Provisional Measures, at
paragraphs 12-13) that the carrying out of the death sentence for the crimes committed by
Commander Jadhav was imminent:
"The request for provisional measures assumes great urgency as Mr. Jadhav has already
been sentenced ta death and he has only forty days ta file an appeal. .. An appeal has
been filed on his behalf by his mother, and from press reports it appears that a court of
appeal has already been constituted There is thus great urgency in the matter as it is
possible that the appeal may be disposed of even prior ta the expiry of the period of 40
days available for filing".
131. Indeed, to accentua te its daim of urgency, India suggested (at paragraph 21) that an
execution could occur "any day":
"As stated above, there is immense urgency in the matter as the 40 day period expires in
any event on J 9th May, and besides the appeal by the mother already having been filed,
and the court of appeal already having been constituted, the disposai of the appeal may
take place any day".
3 In Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v lndia), Counsel for lndia (Mr. Harish Salve) stated, in the course of oral
submissions on questions ofjurisdiction and admissibility (verbatim transcript, Thursday 10 March 2016 at
10am, page 21, paragraph 9) [Volume 3/Annex 46], as follows:
"9. The course of the proceedings, Mr. President, leaves no manner of doubt that the entire venture has
been an abuse of process. The proceedings were initiated by an application that raised various disputes,
and sought remedies and relief far beyond th ose that would jlow if this Court were to accept that paragraph
2 (F) of the dispositif in the Advisory Opinion of the Court rejlected a principle of customary international
law".
Counsel for lndia subsequently stated (verbatim transcript, Wednesday 16 March 2016 at 10am, page 17,
paragraph 13) [Volume 3/Annex 47] as follows:
"13. Remedies under Article 36, Mr. President and Members of the Court, have to be pursued in goodfaith and
one of the first elements of good faith is candour in pleadings. The conduct of the Marshall Islands in
conducting these proceedings falls far short of this standard - it was rightly, 1 submit, even if harshly, criticized
by me as an abuse of process".
Page 39 of 147
132. As was apparent at the time (from the evidence put forward by India itself), and as
was explained by Pakistan at the hearing before the Court on 15 May 2017, such a
suggestion by India was simply not correct. It was, in fact, the manner in which India' s
Application and Request for the Indication of Provisional Measures were brought that
engineered the impression of extreme urgency, rather than the true underl ying facts of the
case themselves.
133. In its Request for the Indication of Provisional Measures, India asserted (at paragraph
21) that:
"There is immense urgency in the matter as the 40 day (appeal) period expires in any
event on 19th May ... The disposai of the appeal may take place any day".
134. However, India' s assertion in this regard was flatly contrary to the evidence that it had
put before the Court in support of its Application and Request for the Indication of
Provi si onal Measures.
135. By 14 April 2017 (if not before), following the Press Statement by H.E. Sartaj Aziz,
the then Adviser, India was aware that Commander Jadhav was entitled as of right to
petition, first to the COAS and, thereafter, the President of Pakistan for clemency. The
prescribed time period within which those petitions could be made was, as explained by
the Adviser, potentially 150 days [Volume 2/Annex 23/pages 2-3]. India exhibited but
did not draw the attention of the Court to this material.
136. India, accordingly, sought to invoke the exceptional provisional measures procedure
of the Court and simultaneously failed to draw the Court' s attention to the existence of
highly material facts regarding Commander Jadhav' s position at that time - namely that
there was a constitutional right to seek clemency which (as explained above) provided for
a minimum time period of 150 days.
137. Furthermore, as explained above, India omitted material evidence in its Application
and Request for the Indication of Provisional Measures to the Court on 8 May 2017. India
attached toits Application the first page of Pakistan' s 23 January 2017 MLA Request (i.e
the cover letter) but failed to attach any of the substantive material comprising that MLA
Request. This was so notwithstanding that India was seeking to persuade the Court to
grant the relief sought in its Request for the Indication of Provisional Measures without
holding a hearing (without any opportunity for Pakistan to appear and to make
representations). Pakistan submits that any State inviting the Court to take action on an ex
parte basis is under a heightened duty of disclosure so as to ensure that the Courtis
presented with all materials relevant to the exercise it is invited to undertake. Numerous
jurisdictions around the world recognise this as a principle of their own domestic laws
and court procedures.
Page 40 of 147
138. The fact that India has failed to address this omission in its Memorial can, in
Pakistan' s submission, only be interpreted as a considered and deliberate refusal or failure
to furnish the Court with relevant and material evidence. There was, with respect, a
distinct lack of candour.
139. Accordingly, notwithstanding that the Court acceded to India's Request for the
Indication of Provisional Measures by its Ortler of 18 May 2017 (given India's daim of
urgency), Pakistan respectfully submits that India' s approach to these proceedings as
described ab ove amounts to a clear abuse of the Court' s process.
140. Indeed, a State seeking provisional measures without any hearing, or within an
extremely tight timeframe, must be subj ect to a rigorous duty of candour. It must draw the
attention of the Court to all material facts. It must not omit or misrepresent any such facts.
It must not invoke an "exceptional process" by distorting facts and exaggerating, or
generating urgency. India regrettably fell far short in this regard, and has failed to explain
its conduct, even though these matters were raised at the Provisional Measures Hearing
on 15 May 2017 [Volume 1/Annex 5.2/page 12 et seq].
141. Moreover, as had been stated at the provisional measures hearing on 15 May 2017,
there was a serious risk that the Court was being used for political grandstanding - as was
borne out by the manner in which the Court proceedings were covered in Indian
mainstream and social media.
(ii) India 's "am bush" by avoiding the dispute resolution mechanisms of the Optional
Protocol
142. In Pakistan' s respectful submission, further conduct oflndia evidencing an abuse of
the Court' s process can be seen by reference to India' s evasion of the detailed treatybased
mechanisms that exist for the resolution of "disputes" arising out of the VCCR
1963.
143. Articles I-III of the VCCR 1963's Optional Protocol concerning the Compulsory
Settlement ofDisputes ("the Optional Protocol") provides as follows [Volume 5/Annex
87]:
"Article I
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 ta the dispute being a
Party ta the present Protocol.
Article II.
Page 41 of 147
The parties mav agree. within a period of two months after one party has noti(ied its
opinion ta the other that a dispute exists. ta resort not ta the International Court of
Justice but ta an arbitral tribunal. After the expirv of the said period. either party mav
bring the dispute before the Court by an application.
Article III.
1. Within the same period oftwo months. the parties may agree ta adopta conciliation
procedure be fore resorting ta the International Court of Justice.
2. The conciliation commission shall make its recommendations within (ive months after
its appointment. Jf its recommendations are not accepted by the parties ta the dispute
within two months after thev have been delivered. either party mav bring the dispute
before the Court by an application". ( emphasis added)
144. It is apparent from a straightforward interpretation of the above that there was an
intention for State Parties to the VCCR 1963 to give consideration to recourse to dispute
resolution mechanisms, before escalating to the Court. In this regard, formal notification
of a dispute was sti pulated.
145. India, in its Application, its Request for the Indication of Provisional Measures and its
Memorial, appears to adopt the position that there has been a "dispute" between India and
Pakistan regarding the provision of consular access in respect of Commander Jadhav
since 25 March 2016 when the Foreign Secretary of Pakistan notified the Indian High
Commissioner in Islamabad of his arrest and the Indian High Commission in Islamabad
sent its Note Verbale of the same date.
146. Pakistan rej ects the contention that India thus notified its "opinion" that a "dispute"
existed as required. Pakistan observes that the first formal notification in this regard was
upon receipt oflndia' s Request for the Indication of Provisional Measures dated 8 May
2017. Indeed, as late at 31 March 2017 (see paragraph 61 above), India had clearly
accepted that Pakistan was willing to provide consular access.
147. Nevertheless, notwithstanding the potential availability of dispute resolution
mechanisms that could have begun a binding arbitration process within 2 months of the
notification of a dispute or could have caused a conciliation commission to be established
within 2 months of the notification of a dispute (with recommendations to be given within
5 months of its establishment), India instituted proceedings before the Court on 8 May
2017 - without prior intimation. No doubt India will assert it was responding to the
exigencies of the situation - that would be incorrect as the "situation" ( on India' s case)
arose on 25 March 2016.
Page 42 of 147
148. By so doing, India effectively ambushed Pakistan with legal proceedings: (i) after 14
months had elapsed since 25 March 2016; and (ii) with no attempt made to engage the
dispute resolution mechanisms envisaged by Articles II and III of the Optional Protocol.
149. Pakistan submits that India's conduct as described above constitutes a breach of the
letter and spirit of the Optional Protocol and manifests abuse of process, and/or is yet
further evidence in this regard.
Concluding observations
150. Pakistan submits that, as a result of the aforesaid matters, the Court should dismiss the
daim advanced through India' s Memorial as inadmissible.
Page 43 of 147
(B) ABUSE OF RIGHTS / LACK OF GOOD FAITH
151. Further, or in the alternative, Pakistan submits that the Court should dismiss India' s
daim on the grounds of abuse of rights.
(i) The le gal principles
152. In Professor Kolb's 'Good Faith in International Law' (1st ed, 2017), it is stated (at
pages 133-134) [Volume 5/Annex 109] that:
"The concept of abuse of rights has many facets . ... The core point is that a subjective
right or a competence is exercised in some way that the le gal order disapproves".
153. These are principles that the Court (and the Permanent Court oflnternational Justice)
has recognised many times throughout its jurisprudence. The relevant legal principles
established through the Court' s judgments concerning the impact of an applicant State' s
abuse ofrights are set out below.
154. In Certain Norwegian Loans (France v Norway), France instituted proceedings
seeking declarations as to the terms on which certain Norwegian loans floated in France
between 1885 and 1909 should be repaid.
155. In a Separate Opinion to the Court's Judgment of 6 July 1957, Judge Sir Hersch
Lauterpacht (UK) (at page 53) [Volume 3/Annex 48] held:
"Unquestionably, the obligation ta act in accordance with good faith, being a general
principle of law, is also part of international law".
156. In Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Bosnia and Herzegovina
instituted proceedings against the Federal Republic of Yugoslavia alleging violations of
the Genocide Convention 1948. In oral submissions at the preliminary objections stage,
Counsel for Bosnia and Herzegovina (verbatim transcript, Wednesday 1 May 1996 at
10.00am, page 70) [Volume 3/Annex 49] stated:
"more simply as, Mr. Alexandre-Charles Kiss has written, the "un;ustified and
un;ustifiable" exercise of State powers may be considered ta be an abuse of rights
("L'abus de droit en droit international" [The Abuse of Rights in International Law],
LGDJ, Paris, 1953, p. 186)". (emphasis added)
157. In Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France),
Djibouti instituted proceedings claiming that France had wrongfully refused to execute an
international letter rogatory concerning the transmission to the Djiboutian judicial
authorities of the investigation record in a murder case. In its Judgment of 4 June 2008,
the Court held that France' s refusal amounted to a failure to comply with international
obligations.
Page 44 of 147
158. In a separate Declaration, Judge Keith (New Zealand) (at paragraph 5) [Volume
3/Annex 50] held:
"5. The two decisions of the Permanent Court of International Justice ta which the Court
refers support not only absence of good faith but also abuse ofrights as a restraint on the
exercise by a State of a power confàred on it by a treaty. This Court in the Admissions
opinion in 1948 similarly said that, while Article 4 of the Charter of the United Nations
exhaustive/y prescribes the conditions for the admission of new Members, that provision
did not "forbid the taking into account of any factor which it is possible reasonably and
in good faith ta connect with [those J conditions"; further, Article 4 allowed for "a wide
liberty of appreciation" (Conditions of Admission of a State ta Membership in the United
Nations (Article 4 of the Charter), Advisory Opinion, 1948, I.C.J Reports 1947-1948, pp.
63-64; see also the joint dissenting opinion, pp. 91-92, para. 20). And counselfor France
accepted that the principles of abuse of rights and misuse of power (abus de droit and
détournement de pouvoir) may be relevant ta the exercise of the power in this case. The
Agent added that, while the requested State retains for itself a wide discretion, this in no
way means that States indiscriminately invoke these derogation clauses; it is moreover
obvious, she said, that the notion of essential interests remains very narrow, as the words
themselves indicate". (emphasis added)
159. In Free Zones of Upper Savoy and the District of Gex (second phase) (1930) PCIJ
(Series A) No. 24, the Permanent Court oflnternational Justice was asked to determine
whether two free zones created by treati es in 1815 and 1816 were maintained or aboli shed
by the Treaty of Versailles. In its Ortler of 6 December 1930, the Permanent Court of
International Justice, finding that French fiscal legislation applied in the free zones as in
any other part of French territory, held (at page 12) [Volume 3/Annex 51]:
"a reservation must be made as regards the case of abuses of a right, an abuse which
however cannot be presumed by the Court".
160. In Free Zones of Upper Savoy and the District of Gex (1932) PCIJ (Seri es A/B) No.
46, in its Judgment of 7 June 193 2, the Permanent Court oflnternational Justice reiterated
(at page 167) [Volume 3/Annex 52]:
"A reservation must be made as regards the case of abuses of a right, since it is certain
that France must not evade the obligation ta maintain the zones by erecting a customs
barrier under the guise of a contrai cordon. But an abuse cannot be presumed by the
Court'.
161. In Electricity Company of Sofia and Bulgaria (1939) PCIJ (Seri es A/B) (No. 77),
Belgium requested the Permanent Court of International Justice to declare that Bulgaria
had acted in breach of international obligations through various measures and decisions
taken by legislative, administrative and judicial authorities in respect of the Sofia
Electricity Company. In a Separate Opinion to the Judgment of 4 April 1939, Judge
Anzilotti (Italy), on the issue of whether the Bulgarian Government had committed an
Page 45 of 147
abuse ofrights in the manner ofits denunciation of a treaty, held (at pages 97-98)
[Volume 3/Annex 53]:
"True, the representatives of the Belgian Government alluded cautiously ta an abuse of
right said ta have been committed by the Bulgarian Government when it denounced the
Treaty in order ta remove from the jurisdiction of this Court the case which the Belgian
Government was proposing ta submit.
The theory of abuse of right is an extremely delicate one, and I should hesitate long
before applying it ta such a question as the compulsory jurisdiction of the Court. The old
rule, a rule in such complete harmony with the spirit of international law, Qui iure sua
utitur neimnem loedit, would seem peculiarly applicable. The Bulgarian Government was
entitled ta denounce the Treaty and was sole judge of the expediency or necessity of doing
sa.
The situation might be somewhat dif.ferent if the Bulgarian Government, being free ta
denounce the Treaty at any time, had chosen the particular moment at which it had been
informed of the Belgian Government 's intention ta apply ta the Court. But that is not the
case. At the time when it learnt of the Belgian Government 's decision, the Bulgarian
Government had only afew days in which ta denounce the Treaty under Article 37, Nos. 2
and 3, if it did not wish ta be bound for a further period of five years".
162. In Conditions of Admission of a State ta Membership in the United Nations (Article 4
of Charter), Advisory Opinion, IC.J Reports 1948, page 57, the Court was asked to
interpret the conditions laid down for the admission of States to the United Nations and
determine, inter alia, whether those conditions were exhaustive.
163. In an Individual Opinion to the Court's Advisory Opinion of28 May 1948, Judge
Azevedo (Brazil) (at page 80) stated [Volume 3/Annex 54]:
"Any le gal system involves limitations and is founded on definite rules which are always
ready ta reappear as the constant element of the construction, whenever the field of
action of discretionary principles, adopted in exceptional circumstances, is overstepped.
This is a long-established principle, and has served, during centuries, ta limit the scope of
the principle qui sua jure utilitur neminem laedit.
The concept of the misuse ofrights has now been freed from the classical notions ofdolus
and culpa; in the fast stage of the problem an enquiry into intention may be discarded.
and attention may be given solely ta the obiective aspect; i.e .. it may be presumed that
the right in question must be exercised in accordance with standards of what is normal.
having in view the social purpose of the law. (Cf Swiss Civil Code, Art. 2 ; Soviet, Art. I;
and Brazilian, Art. 160)". ( emphasi s added)
164. In Nottebohm (Liechtenstein v Guatemala), Liechtenstein instituted proceedings
against Guatemala seeking restitution and compensation for the manner in whi ch
Guatemala had acted towards a Liechtenstein citizen. In its Judgment of 6 April 1955, the
Page 46 of 147
Court held that Mr. Nottebohm' s nationality was not based on any genuine prior link with
Liechtenstein and his acquisition of Liechtenstein nationality was done sol el y in order to
acquire the status of a neutral national in wartime.
165. In a Dissenting Opinion, Judge Klaestad (Norway) (at pages 31-32) [Volume
3/Annex 55] held:
"It is alleged by the Government of Guatemala that the Government of Liechtenstein, by
granting its nationality ta a German national at a time when Germany was at war, has
committed an abuse of right or a fraud For the purpose of the present case, it is
unnecessary ta express any views as ta the possible applicability of the notion of abuse of
right in international law. All I need say is that it would, if sa applicable, in my view
presuppose the infliction of some kind of in jury upon the legitimate interests of
Guatemala by the naturalization ofMr. Nottebohm. But it is not shown that an injury of
any kind was thereby inflicted upon Guatemala, which at that time was a neutral State.
As ta the contention that fraud was committed by the Government of Liechtenstein, it
suffices ta say that no evidence has been produced in support of such a contention. The
various irregularities in the naturalization procedure ofwhich the Government of
Guatemala has complained, and the jinancial conditions jixed for the grant of
naturalization, cannot be considered as involving a fraud'.
166. In a Dissenting Opinion, Judge Read (Canada) (at pages 37-38) [Volume 3/Annex
56] held:
"Abuse of right is based on the assumption that there is a right ta be abused In the
present case it is based upon the assumption that Liechtenstein had the right under
international law ta naturalize Mr. Nottebohm, but that, in view of the special
circumstances and the manner in which the right was exercised, there was an improper
exercise of the right- an exercise sa outrageous and unconscionable that its result, i.e.
the national status conferred on Mr. Nottebohm, could not be invoked against Guatemala.
The doctrine of abuse of right cannot be invoked by one State against another unless the
State which is admittedly exercising its rights under international law causes damage ta
the State invoking the doctrine.
As this ground is not relied upon in the Judgment of the Court, it is unnecessary for me ta
examine the particular grounds relied on by Counsel. It is sufficient ta point out that
Liechtenstein caused no damage ta Guatemala, and that it is therefore necessary ta reject
the Final Conclusion 2 (b)".
167. InAerial Herbicide Spraying (Ecuador v Colombia), Ecuador instituted proceedings
claiming that aerial spraying by Colombia of toxic herbicides at border locations had
caused serious damage. In its Reply, Ecuador (at paragraph 7.51) [Volume 3/Annex 57]
stated:
Page 47 of 147
"7.51 Colombia 's interpretation of the 1988 Narcotics Convention constitutes an abuse of
right ta the extent that Colombia believes that it can combat illicit drug crops without
having regard ta the human rights of individuals living in the border regions across from
its own territory. It would be wrong ta presume that the Contracting States ta the 1988
Narcotics Convention intended ta secure respect for human rights only within the
territory of the State adopting coercive measures and not also in neighbouring States, if
such measures have potentially extra-territorial effects. This is all the more sa where such
effects are sa serious in their consequence".
(ii) The Abuse
168. In the light oflndia' s abject refusal to engage with Pakistan' s requests for information
regarding the passport in Commander Jadhav' s possession when he was arrested, Pakistan
was compelled to engage an independent expert. Mr. David W estgate served as Chief
Immigration Officer at the UK National Document Fraud Unit (NDFU) for 13 years.
Overall, he served as part of the United Kingdom Home Office and Immigration
Intelligence Directorate for more than 27 years. He was asked to examine the passport in
the name of 'Hussein Mubarak Pa tel'. He prepared an expert report on the authenticity of
the passport [Volume 7/Annex 141].
169. The report is discussed in further detail in Section III(C) below, but in summary, Mr.
Westgate concluded:
169 .1. The pas sport i s a genuine and authenti c Indian travel document and not a
counterfeit (paragraph 9 ofMr. Westgate' s report [Volume 7/Annex 141/page 21);
169.2. The laminate has a security print on the inside which is clear and undamaged,
and there is no evidence that the image is not original to the document (paragraph 9
ofMr. Westgate's report [Volume 7/Annex 141/page 21);
169 .3. "From my knowledge and understanding of the airport immigration system in
India, the immigration counters are connected ta a central database, and any
irregularities in the authenticity [of] a passport would ordinarily be flagged up on
such a database. Thus I would observe that the frequency with which the individual
presented the pas sport at the immigration counter in India for entry and for exit [Mr.
Westgate having earlier observed that it had been used thus on at least 17 occasions]
is very strong supportive evidence of the authentic nature of the passport. In
addition, if there were issues concerning the holder of an authentic passport, such as
an Interpol 124/7 notice, and Indian central watch-list entry, criminal proceedings,
issues relating ta identity, these would be very likely ta be spotted at the point of
encounter with the immigration authorities when the passportwas scrutinised by the
officiais in India. Such officiais would be examining hundreds of passports on a
daily basis, and would thus have considerably more experience in respect of such
documents" (paragraph 15 ofMr. Westgate's report [Volume 7/Annex 141/page 71).
170. In light of the ab ove, Pakistan respectfully submits:
Page 48 of 147
170.1. that India, in purporting to exercise its legitimate rights to grant passports, in
order to clothe an espionage agent with a false identity so as to facilitate his travel to
Pakistan to commit acts of espionage and terrorism, has committed a fundamental
abuse ofrights. It cannot possibly be said that this is legitimate or acceptable having
in view the purpose of the domestic and international law and practice regarding the
granting of passports;
170.2. that India, in purporting to exercise its treaty-based consular access rights in
order to access an espionage agent that it has clothed with a false identity and
despatched to Pakistan to commit acts of espionage and terrorism in grave violation
of the territorial integrity and political sovereignty of Pakistan, with the significant
risk that further damage to Pakistan would be likely to ensue (as is the stated
intention of man y senior official s of the Government oflndia 4
•
5
), has committed and
continues to commit a fundamental abuse of rights;
170.3. It cannot possibly be said, having in view the purpose of the law on consular
access and its role in the ''promotion of friendly relations among nations" (as
expressed in the Preamble of the VCCR 1963 [Volume 5/Annex 88]), that this is a
normal exercise of those rights. Indeed, Pakistan submits that such an exercise would
be "unjustified and unjustifiable";
170.4. that India, by invoking the provisional measures jurisdiction in the manner that
it did, abused the right to seek exceptional recourse from the Court. Such a right must
be exercised responsibly and notas a tactical or political weapon - let al one to use
the Court' s process for a malicious and misleading media campaign.
(iii) Violations of public international law by India
171. Furthermore, Pakistan submits that throughout the course of its domestic investigation
and proceedings concerning Commander Jadhav, India' s conduct has evidenced a marked
failure to act in good faith to the standard required by international law.
4 On 21 Febmary 2014 (according to a report in The Economie Times in In.dia), Mr. Ajit Doval (a former
Director of In.dia' s Intelligence Bureau (2004-2005) and the current National Security Advisor to the Prime
Minister of In.dia) had given a speech at SAS TRA University in In.dia in which, inter alia, the following was
stated [Volume 7/Annex 143/page 2]:
"Pakistan 's vulnerability is many limes higher than that of India. Once they know that India has shifted its gear
from the defensive mode to defensive ojfence, they will find that it is unajfordable for them. You can do one
Mumbai, you may /ose Balochistan. There is no nuclear war involved in that and there is no troops engagement.
If you know the tricks, we know the tricks better than you".
5 On 30 September 2017, Mr. Subramanian Swamy, a senior figure of the mling Bharatiya Janata Party (BJP) in
In.dia, is reported to have stated in a television interview that In.dia would break Pakistan into four:
"J think we 'll be ready probably by March-April of 2018, then we shall break Pakistan into four" [Volume
7/Annex 144].
Page 49 of 147
172. As previously outlined, on 23 January 2017, Pakistan sent to India a MLA Request
[Vol urne 2/ Annex 17]. The MLA Request required In dia, inter a lia, to provide
explanations on a range of issues relating to the ongoing investigation into Commander
Jadhav's unlawful activities in Pakistan, including the issue ofhis possession ofwhat
appeared to be an authentic Indian passport but which did not bear his true name [Volum
2/Annex 17 /pages 12-14]. To date, Pakistan has yet to receive any substantive response
to the MLA Request. Indeed, India eventually purported to return the MLA Request
unanswered [Volume 2/ Annex 33]. Pakistan' s latest letter on this issue to India' s
Ministry ofExternal Affairs of26 October 2017 [Volume 2/Annex 44] has not elicited
any response at all from India.
173. India' s failure to respond to Pakistan' s MLA Request is even more stark in the light
oflndia' s public intemational law obligations concerning State-to-State assistance in the
investigation of terrorism, which, Pakistan submits, are properly to be viewed as
obligations erga omnes or otherwise binding in nature.
174. Following the appalling terrorist attacks committed against the United States of
America on 11 September 2001, the UN Security Council passed UN Security Council
Resolution 1373 (2001) [Volume 5/Annex 89]. India is taken not to dispute that Chapter
VII UN Security Council Resolutions can create binding obligations as a matter of public
international law. UN Security Council Resolution 1373 (2001) is such a resolution.
175. By virtue of Article 2(±) of UN Security Council Resolution 1373 (2001) [Volume
5/Annex 89/page 2], all UN Member States are under an obligation in public
international law to:
"Afford one another the greatest measure of assistance in connection with criminal
investigations or criminal proceedings relating ta the financing or support of terrorist
acts, including assistance in obtaining evidence in their possession necessary for the
proceedings".
176. India, as a UN Member State, is under this obligation, yet has persistently and
deliberately refused to afford Pakistan any measure of assistance whatsoever as regards
the investigation of Commander Jadhav - who has himselfvoluntarily and repeatedly
confessed to the financing and supporting of terrorist acts against Pakistan at the behest of
India.
177. Pakistan notes that India, in its Memorial (at paragraph 87), purports to excuse its
conduct in this regard on the basis that India and Pakistan have not at this time entered
into a Mutual Legal Assistance Treaty ("MLAT"). However, in Pakistan' s respectful
submission, a lack of a MLAT does not affect the applicability and binding nature of an
obligation contained in a Chapter VII UN Security Council Resolution. Therefore, such
Page 50 of 147
an excuse is no answer to and no justification for India' s manifest non-compliance with
UN Security Council Resolution 1373 (2001).
178. Further, Article 2(g) of UN Security Council Resolution 1373 (2001) [Volume
5/Annex 89/page 2] obliges all UN Member States to:
"Prevent the movement of terrorists or terrorist groups by effective border contrais and
contrais on issuance o{identity papers and travel documents. and through measures for
preventing counterfeiting, forgery or fraudulent use of identity papers and travel
documents". ( emphasi s added)
179. India, as a UN Member State, is under this obligation, yet has continually failed to
answer Pakistan' s reasonable requests (as contained in its 23 January 2017 MLA Request
[Volume 2/Annex 17] and repeated subsequently (most recently on 26 October 2017
[Volume 2/Annex 44])) for explanations as to how Commander Jadhav was allowed to
acquire what appeared to be an authentic Indian passport bearing a false identity and to
use it frequently to travel to and from India and to clandestinely enter Pakistan. The
absence of any explanation, and steadfast refusal to engage with Pakistan' s concerns in
this regard, give rise (at the very least) to serious questions as to whether India, in relation
to the case of Commander Jadhav, has acted in manifest non-compliance with UN
Security Council Resolution 1373 (2001). India thus far seeks to evade its obligations in
thi s regard.
180. Evidence of how important the matter of State-to-State cooperation concerning the
use/misuse of travel documents by terrorists is can be seen from Article 3(a) of UN
Security Council Resolution 1373 (2001) [Volume 5/Annex 89/page 3], by which the
UN Security Council called upon the UN Member States to:
"Find ways of intensifying and accelerating the exchange of ope rational in(Ormation.
especiallv regarding actions or movements of terrorist persans or networks; (Orged or
falsified travel documents; traffic in arms, explosives or sensitive materials; use of
communications technologies by terrorist groups; and the threat posed by the possession
ofweapons of mass destruction by terrorist groups". (emphasis added)
181. UN Security Council Resolution 1373 (2001) made it crystal clear that States must
have effective controls on the issuance of identity papers and travel documents.
Moreover, States must ensure forged or falsified travel documents are subject to robust
action given that they facilitate terrorist operations.
182. It is thus plain that for a State itself to make provision of travel documents facilitating
terrorism, whether or not forged or falsified, would be a contravention of UN Security
Council Resolution 1373 (2001), in addition to being a violation of the Principles of the
Charter of the United Nations if they are tools for illegal conduct. Indeed, it would seem
highly likely that such conduct would constitute a threat to international peace and
security.
Page 51 of 147
183. In light of the ab ove, India' s continuing refusal to accede to Pakistan' s requests for
information concerning Commander Jadhav' s passport (used in the facilitation of his
entry into Pakistan to commit acts of espionage and terrorism) is, Pakistan submits, an
ongoing violation ofbinding obligations of public international law.
184. In the face of the above and in the face of Commander Jadhav's voluntary confessions
( repeated be fore a judge in accordance with le gal requirements) that hi s heinous criminal
activities in Pakistan were authorised by RAW, India nevertheless persists in demanding
that it is entitled to (and Pakistan is obliged to allow) untrammelled access toits
instrument of espionage and terror, Commander Jadhav, without any attempt to address
legitimate questions in this regard.
185. Pakistan respectfully submits that this course of conduct manifests that India has acted
in bad faith.
186. Pakistan respectfully submits that India:
186.1. in purporting to use/abuse Article 36 VCCR 1963 to seek consular access to
Commander Jadhav (a self-confessed State-sponsored spy/terrorist traveling with the
use of authentic travel documentation in a false identity provided by the competent
Indian authorities), is committing a fundamental abuse of rights;
186.2. in refusing to provide any measure of assistance whatsoever in the
investigation of the offences committed by Commander Jadhav against Pakistan
(including the purported returning unanswered of Pakistan' s MLA Request ), erga
omnes and/or otherwise binding obligations are being violated by India.
187. Accordingly, Pakistan respectfully invites the Court to declare India' s daim, as
advanced through its Application and its Memorial, inadmissible as an abuse ofrights.
Page 52 of 147
(C) EX TURPI CAUSA (ILLEGALITY) / UNCLEAN BANDS/ EX INJURIA JUS
NONORITUR
188. Further, or in the alternative, Pakistan respectfully submits that the Court should
declare India' s claim as advanced through its Memorial to be inadmissible on the grounds
of:
188.1. India' s illegal conduct; and/ or
188.2.
and/or
on the basis that India has invoked the Court' s jurisdiction with unclean hands;
188.3. on the basis of the principle of ex injuria jus non oritur ("a right cannot derive
from a wrong"),
such illegal conduct being the provision to Commander Jadhav of an authentic Indian
passport clothing him with a false Muslim identity in the name of 'Hussein Mubarak
Patel'.
189. These are principles that the Court (and the Permanent Court oflnternational Justice)
has recognised in its jurisprudence.
190. In Case Concerning the Factory at Chorz6w (Claim for Indemnity) (Jurisdiction)
(Federal Republic ofGermany v Poland) (1927) PCIJ (Series A) No. 9, a factory was
constructed during wartime under a contract between Germany and a private German
enterprise on territory allotted to Poland. Germany contended that the application of
Polish law by which Poland subsequently took over the factory was unlawful. The
Permanent Court oflnternational Justice subsequently held that the cancellation by
Poland of the German company's rights was contrary to the 1922 Geneva Convention.
Poland and Germany then entered into negotiations regarding the claim for indemnity.
191. In its Judgment of26 July 1927 onjurisdiction, the Permanent Court oflntemational
Justice held ( at page 31) [Vol urne 3/ Annex 58]:
"It is, moreover, a principle generally accepted in the jurisprudence of international
arbitration, as well as by municipal courts, that one Party cannot avail himself of the fact
that the other has not fulfilled some obligation or has not had recourse ta some means of
redress, if the former Party has. by some illegal act. prevented the latter {rom fulfilling
the obligation in question, or from having recourse ta the tribunal which would have been
open ta him". ( emphasi s added)
192. Pakistan accepts that a distinction exists between a situation in which an illegal act
prevents performance of an obligation and a situation in which, as a consequence of an
illegal act, performance is not required. Pakistan submits nevertheless that the prior illegal
Page 53 of 147
act has the consequence of negating any correlative obligation that may otherwise flow
directl y from an act whi ch i s otherwi se 1 egal.
193. In Le gal Status of Eastern Green/and (Denmark v Norway) (1933) PCIJ (Seri es A/B),
No. 53, Denmark instituted proceedings against Norway following the latter's
announcement of its occupation ofterritories over which Denmark claimed to have
soverei gnty.
194. The Permanent Court oflnternational Justice gave judgment on 5 April 1933. Judge
Anzilotti, in his Dissenting Opinion, stated clearly (at page 95) [Volume 3/Annex 59]:
"an unlawful act cannot serve as the basis of an action at law".
195. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
States of America), Merits, Judgment, IC.J Reports 1986, page 14, by an application
dated 9 April 1984, Nicaragua instituted proceedings against the United States of
America concerning a dispute relating to responsibility for the use of force against
Nicaragua.
196. The Court gave its Judgment on the Merits on 27 June 1986. Judge Schwebel (US), in
his Dissenting Opinion, provided a comprehensive restatement in this regard as follows
(at paragraphs 268-272) [Volume 3/Annex 60]:
"268. Nicaragua has not came ta Court with clean hands. On the contrary. as the
aggressor. indirect/y responsible ~ but ultimately responsible ~ for large numbers of
deaths and widespread destruction in El Salvador apparent/y much exceeding that which
Nicaragua has sustained. Nicaragua 's hands are odiously unclean. Nicaragua has
compounded its sins by misrepresenting them ta the Court. Thus bath on the grounds of
its unlawful armed intervention in El Salvador, and its deliberately seeking ta mislead the
Court about the facts of that intervention through false testimony of its Ministers,
Nicaragua 's claims against the United States should fail.
269. As recalled in paragraph 240 of this opinion, the Permanent Court of International
Justice applied a variation of the "clean hands" doctrine in the Diversion of Water from
the Meuse case. The basis for its sa doing was ajfirmed by Judge Anzilotti "in a famous
statement which has never been objected ta : 'The principle ... (inadimplenti non est
adimplendum) is sa Just, sa equitable, sa universally recognized that it must be applied in
international relations ... "' (Elisabeth Zoller, Peacetime Unilateral Remedies : An
Analysis ofCountermeasures, 1984, pp. 16-17). That principle was developed at length
by Judge Hudson. As Judge Hudson observed in reciting maxims of equity which
exercised "great influence in the creative period of the development of Anglo-American
law ", "Equality is equity ", and "He who seeks equity must do equity ". A court of equity
"refuses relief ta a plaintif.fwhose conduct in regard ta the subject-matter of the litigation
has been improper" (citing Halsbury 's Laws of England, 2nd ed, 1934, p. 87). Judge
Hudson noted that, "A very similar principle was received into Roman law . . . The
Page 54 of 147
exceptio non adimpleti contractus ... "He shows that it is the basis of articles of the
German Civil Code, and is indeed "a general principle" of law. Judge Hudson was of the
view that Belgium could not be ordered ta discontinue an activity while the Netherlands
was leftfree ta continue a like activity- an enjoinder which should have beenfound
instructive for the current case. He held that, "The Courtis asked ta decree a kind of
specific performance of a reciprocal obligation which the demandant is not performing. It
must clearly refuse ta do sa." (Loc. cit., pp. 77-78. And see the Court 's holding, at p. 25.)
Equally, in this case Nicaragua asks the Court ta decree a kind of specific performance of
a reciprocal obligation which it is not performing, and, equally, the Court clearly should
have refused ta do sa.
2 70. The "clean hands" doctrine jinds direct support not only in the Diversion of Water
from the Meuse case but a measure of support in the holding of the Court in the
Mavrommatis Palestine Concessions case, P.C.I.J, Series A, No. 5, page 50, where the
Court held that : "M Mavrommatis was bound ta perform the acts which he actually did
perform in order ta preserve his contracts from lapsing as they would otherwise have
done. " (Emphasis supplied.) Still more fundamental support is found in Judge Anzilotti 's
conclusion in the Legal Status of Eastern Green/and, P.C.IJ, Series AIE, No. 53, page
95, that "an unlawful act cannot serve as the basis of an action at law ". In their
dissenting opinions ta the Judgment in United States Diplomatie and Consular Staff in
Tehran, I.C.J Reports 1980, pages 53-55, 62-63, Judges Morozov and Tarazi invoked a
like principle. (The Court also gave the doctrine a degree of analogous support in the
Factory at Chorzàw case, P. C.I.J, Series A, No. 9, p. 31, when it held that "one party
cannot avail himself of the fact that the other has not fuljilled some obligation ... if the
former party has, by some illegal act, prevented the latter from fuljilling the obligation in
question ... '') The principle that an unlawful action cannot serve as the basis of an action
at law, according ta Dr. Cheng6, "is generally upheld by international tribunals" (Bin
Cheng, General Princip/es of Law as Applied by International Courts and Tribunals,
1958, p. 155). Cheng cites, among other cases, the Clark Claim, 1862, where the
American Commissioner disallowed the claim on behalf of an American citizen in asking
: "Can he be allowed, sa far as the United States are concerned, ta profit by his own
wrong ? ... A party who asks for redress must present himself with clean hands ... " (John
Bassett Moore, His tory and Digest of the International Arbitrations ta which the United
States Has Been a Party, 1898, Vol. III, at pp. 2738, 2739). Again, in the Pelletier case,
1885, the United States Secretary of State "peremptorily and immediately" dropped
pur suit of a claim of one Pelletier against Haiti - though it had been sustained in an
arbitral award - on the ground of Pelletier 's wrongdoing :
"Ex turpi causa non oritur : by innumerable rulings under Roman common law,
as held by nations holding Latin traditions, and under the common law as held in
England and the United States, has this principle been applied." (Foreign
Relations of the United States, 1887, p. 607.)
6 Dr. Bin Cheng was a Lecturer in International Law at University College London
Page 55 of 147
The Secretary of State further quoted Lord Mansfield as holding that : "The principle of
public policy is this: ex dola malo non oritur actio." (At p. 607.)
271. More recently, Sir Gerald Fitzmaurice - then the Legal Adviser of the Foreign
Office, short/y ta become a judge of this Court - recorded the application in the
international sphere of the common law maxims : "He who seeks equity must do equity"
and "He who cames ta equity for relief must came with clean hands", and concluded:
"Thus a State which is guilty of illegal conduct may be deprived of the necessary
locus standi in judicio for complaining of corresponding illegalities on the part of
other States, especially if the se were consequential on or were embarked upon in
order ta counter its own illegality- in short were provoked by it." ("The General
Princip les of International Law", 9 2 Collected Courses, Academy of International
Law, The Hague, (1957-11), p. 119. For further recent support of the authority of
the Court ta apply a "clean hands" doctrine, see Oscar Schachter, "International
Law in the Hostage Crisis ", American Hostages in Iran, 1985, p. 344.)
2 72. Nicaragua is precisely such a State which is guilty o(illegal conduct. Its conduct
accordinglv should have been reason enough for the Court ta hold that Nicaragua had
deprived itselfofthe necessarv locus standi ta complain ofcorresponding illegalities on
the part of the United States. especiallv because. ifthese were illegalities. thev were
consequential on or were embarked upon in order ta counter Nicaragua 's own illegality
- "in shortwere provoked by it'"'. (emphasis added)
197. In the Legality of Use of Force cases, by applications dated 29 April 1999, the F ederal
Republic of Yugoslavia instituted proceedings against the NATO countries conceming
alleged violations of the obligation not to use force against Yugoslavia. The doctrine of
clean hands was raised by several of the major NATO Powers (including the United
Kingdom, the United States of America, Canada, the Netherlands, Germany and Portugal)
in opposition to Yugoslavia's request for the indication of provisional measures.
198. In oral submissions, the Agent for Canada stated (verbatim transcript, Montlay 10
May 1999 at 4.15pm, paragraph 5) [Volume 3/Annex 61] as follows:
"5. That, Mr. President, is one branch of our argument today. The other is that this is not
an appropriate case for the exercise of the Court 's authority ta grant provisional
measures under Article 41. This is a discretionary power. Its exercise should never be
automatic but should depend on the circumstances of the case. The Court should
accordingly exercise its authority judiciously, taking account of all the circumstances
under which the request is brought and of the underlying dispute. I respectfully suggest
that it would be an inappropriate use of the power under Article 41 ta fend aid and
comfort ta an applicant that cames ta the Court, in such a matter as this, without clean
hands. It would be a tragicallv misguided use of the power ta fend credence ta the
unsubstantiated humanitarian accusations of a party whose own humanitarian abuses are
at the root of the present dispute. It would turn reality on its head". ( emphasis added)
Page 56 of 147
199. In oral submissions, the Agent for Canada stated (verbatim transcript, Wednesday 12
May 1999 at 3.20pm, page 6) [Volume 3/Annex 62] as follows:
"I first wish ta draw the attention of the Court ta a glaring omission in the response of the
Federal Republic of Yugoslavia: the absence of any reference ta the second branch of our
arguments: the inappropriateness of provisional measures. This is all the more striking
that not only Canada. but I believe all the other Respondents. drew attention ta the
numerous breaches by the Federal Republic of Yugoslavia o[international legal
obligations erga omnes. and ta the dreadful consequences of these violations on the
Kosovar people and in neighbouring countries. That the Federal Republic of Yugoslavia
did not even attempt ta address these issues speaks volumes on its own awareness that it
has came ta the Court without clean hands. On this point. I will simply refer the Court ta
Canada ·s original submission". ( emphasis added)
200. In oral submissions, the then Attorney General of the United Kingdom stated
(verbatim transcript, Tuesday 11 May 1999 at 3pm, paragraph 24) [Volume 3/Annex 63]
as follows:
"24. I came therefore. Mr. President. ta my final point. This is whether the Court ought ta
be entertaining this request from the Federal Republic of Yugoslavia at all. I have
already described it, in its careless disregard of the le gal requirements. as an abuse of
the process of the Court. It deserves ta be dismissed on that ground alone. There is.
however. Mr. President. a deeper point. In my own legal system a remedy like
"provisional measures" would lie at the discretion of the Court. In considering whether
or not ta exercise that discretion. the Court would weigh up all the equities. In weighing
up all the equities. the Court would pay particular attention as ta whether the party
seeking its assistance came with clean hands. The Court would not. however. allow its
process ta be used as an engine ta assist turpitude. I can see no reason why exact/y the
same principles should not be applied by this honourable Court. They are deeply rooted
in the essential nature of the ;udicial function. They should be regarded as "general
principles o[law" within the meaning of Article 38 of the Statute". ( emphasis added)
201. In oral submissions, the Co-Agent for the United States of America stated (verbatim
transcript, Tuesday 11 May 1999 at 4.30pm, paragraphs 3.17-3.18) [Volume 3/Annex 64]
as follows:
"3.17. Finally. the indication of provisional measures against the United States and other
Respondents would be inappropriate because the Applicant does not came ta the Court
with clean hands. Having committed a campaign of extensive ethnie cleansing and other
atrocities in Kosovo. the Applicant has now came ta the Court asking for protection
against the consequences of those unlawful acts.
3.18. The principle that a party in litigation may not attempt ta reap advantages {rom its
own wrong is well established in international law (see B. Cheng. General Princip/es of
Law as Applied byinternational Courts and Tribunals. pp. 149-158 (reprint ed 1987)).
This principle is often expressed in the Latin phrase nullus commodum capere de sua
Page 57 of 147
in;uria propria ('no one can be allowed ta take advantage ofhis own wrong").
Numerous arbitral decisions reflect the unwillingness ofinternational tribunals ta grant
relief ta parties whose own conduct with respect ta the underlying dispute was wrongful
(see. for example. Tippets. Abbett. McCarthv. Stratton v. TAMS-AFFA. 6 Iran-US.CR. T.
pp. 219. 228 (1994): Diversion of Water {rom the River Meuse. P.C.I.J. Series AIE. No.
70. p. 77). Since the Court must assess all relevant circumstances in considering whether
ta grant provisional measures, it should take due account of this principle as well".
(emphasis added)
202. In that case, the Court dismissed Yugoslavia's request for the indication of
provisional measures on other grounds and thus did not engage with the arguments
advanced concerning the clean hands doctrine. However, the reliance by several of the
major Powers upon the clean hands doctrine provides, Pakistan submits, not only strong
evidence of the existence of the doctrine as a matter of customary international law, but
also an indication of the compelling reasons why the doctrine ought to be applied when
the facts of the instant case are viewed in their proper context.
203. In Le gal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, IC.J Reports 2004, page 136, the UN General Assembly
requested the Court to give an advisory opinion on a question concerning the legal
consequences of Israel' s construction of a wall in the Occupied Pal estinian Terri tory
considering the rules and principles of international law.
204. Judge Elaraby (Egypt), in a Separate Opinion, in his discussion of the rule that States
may not recognise an unlawful territorial acquisition, emphasised the existence of the
principle of ex injuria jus non oritur and stated (at paragraph 3 .1) [Volume 3/Annex 65]
that:
"The general principle that an illegal act cannot produce le gal rights - ex injuria jus non
oritur - is well recognized in international law".
205. The relevance and significance of illegal conduct by a State that purports to exercise
diplomatie protection in respect of an individual it daims to be one of its nationals was
made clear by Professor John Dugard SC, a former judge ad hoc of the Court. As Special
Rapporteur on Diplomatie Protection to the International Law Commission, Professor
Dugard, in his Sixth Report on Diplomatie Protection dated 11 August 2004, stated (at
paragraphs 8-9) [Volume 5/Annex 110/page 4] as follows:
"8. !fan alien is guilty ofsome wrongdoing in a foreign State and is as a consequence
deprived of his liberty or property in accordance with due process oflaw by that State. it
is unlikelv that his national State will intervene ta protect him. Indeed it would be wrong
for the State ofnationality ta intervene in such a case because no internationallv
wrongful act will have been committed in most circumstances. In this sense. the clean
hands doctrine serves ta preclude diplomatie protection. The position assumes a différent
character, however, where an international/y wrongful act is committed by the
Page 58 of 147
respondent State in response ta the alien 's wrongful act - where, for instance, an alien
suspected of committing a criminal offence is subjected ta torture or ta an unfair trial. In
such a case, the State of nationality may exercise diplomatie protection on behalf of the
individual be cause of the international/y wrongful act. The clean hands doctrine cannot
be applied in the latter case ta the injured individual for a violation of international law,
first, because the claim has now assumed the character of an international, State v. State
claim and second/y, because the individual has no international le gal personality and
thus cannot (outside the field of international criminal law) be held responsible for the
violation of international law. In short, as a consequence of the fiction that an iniury ta a
national is an iniury ta the State itself the claim on behalf ofa national subiected ta an
internationally wrongful act becomes an international claim and the clean hands doctrine
can be raised against the protecting State only (Or its conduct and not against the iniured
individual (Or misconduct that may have preceded the internationally wrongful act.
9. As a consequence of the above reasoning, it follows that the clean hands doctrine has
no special place in claims involving diplomatie protection. If the individual commits an
unlawful act in the hast State and is tried and punished in accordance with due process of
law, no internationally wrongful act occurs and the unclean hands doctrine is irrelevant.
It on the other hand. the national 's misconduct under domestic law gives rise ta a wrong
under international law as a result of the respondent State 's treatment of the national 's
misconduct. the claim becomes international ifthe iniured national 's State exercises
diplomatie protection on his behalf Then the clean hands doctrine may only be raised
against the plaintif! State (Or its own conduct. This is illustrated by the LaGrand and
Avena cases. In bath cases,foreign nationals committed serious crimes, which warranted
their trial and punishment, but in bath cases the United States violated international law
in respect of their prosecution by failing ta grant them consular access. At no stage did
the United States argue that the serious nature of their crimes rendered the hands of the
foreign nationals unclean, thereby precluding Germany and Mexico respective/y from
protecting them under the Vienna Convention on Consular Relations. On the contrary, in
bath cases (as has been shown above) the United States contended that the plaintif.f States
themselves had unclean hands by virtue of their failure ta apply the Vienna Convention in
the manner required of the United States". (emphasis added)
2 3rd January 2017 and thereafter - queries ignored
206. As explained above, Pakistan sent to India on 23 January 2017 a detailed and
perfectly legitimate MLA Request in respect of the investigation into the crimes
committed by Commander Jadhav [Volume 2/Annex 17]. Amongst other things, the
MLA Request asked India for assistance in obtaining statements of 13 identified
individuals and access to records and materials, namely:
206.1. a search of Commander Jadhav' s flat/house;
206.2. certified records of Commander Jadhav' s cell phone records; and
206.3. certified records of Commander Jadhav' s bank account and those of his family
[Volume 2/ Annex 17 /pages 2-3].
Page 59 of 147
207. To date, India has failed to provide any substantive response to Pakistan's MLA
Request and ultimately purported to return the MLA Request unanswered [Volume
2/Annex 33].
208. Pakistan' s latest letter on this issue to India' s Ministry ofExternal Affairs of 26
October 2017 referred to the copy of Passport No.L9630722 in the name of 'Hussein
Mubarak Patel' and asked the Government oflndia to explain whether:
"(1) Commander Jadhav is indeed Commander Jadhav or 'Hussein Mubarak Pat el'
(2) If he is not 'Hussein Mubarak Patel', does such a persan exist?
(3) If 'Hussein Mubarak Patel' does exist or does not exist, what attempts has the
Government of India made at the very latest since 2 3rd January 2017 ta investi gate how
Commander Jadhav was able ta obtain what appears ta be an authentic Indian passport
issued by the competent authorities in India?
(4) In the alternative, is it the Government of India 's position that Commander Jadhav
was in possession of afalse and inaccurate document either:
a. because his name is not 'Hussein Mubarak Patel '; or
b. because it is nota passport from the competent Indian authorities?
(5) If that is the case, does the Government of India consider that Commander Jadhav has
committed a crime or crimes under Indian law? If sa, what islare the crimes?
(6) What is the actual authentic passportfor Commander Kulbhushan Sudhir Jadhav
(assuming he was issued with a passport)? Please provide full particulars of the date of
issue, date of expiry, passport number, place of issue, name and photograph in the actual
(presently valid) passport issued ta Commander Jadhav if such a document exists.
Without prejudice ta the foregoing, the Islamic Republic of Pakistan has already put the
Republic of India on notice that it has failed ta establish the Indian nationality of
Commander Jadhav".
[Volume 2/Annex 44/pages 2-3]
209. This letter has not elicited any response at all from India. Furthermore, India's failure
in this regard amounted to a contravention of binding erga omnes obligations and/or
otherwise binding obligations to provide other States with assistance in the investigation
ofterrorism offences as contained in UN Security Council Resolution 1373 (2001)
[Volume 5/Annex 89].
Page 60 of 147
Commander Jadhav 's use of an authentic Indian passport clothed with a false identity
210. As outlined above, in the light oflndia's abject refusal to engage with Pakistan's
requests for information regarding the passport in Commander J adhav' s possession when
he was arrested ("the passport"), as explained above, Pakistan was compelled to engage
an independent expert (Mr. David W estgate) to examine the passport in the name of
'Hussein Mubarak Patel'.
211. Mr. W estgate, inter a lia, served as part of the United King dom Home Office and
Immigration Intelligence Directorate for more than 27 years, and in particular, served on
attachment to the Foreign & Commonwealth Office as Immigration Airline Liaison
Officer based in New Delhi, and visa officer on secondment to the Foreign &
Commonwealth Office in Karachi, Pakistan.
212. The findings of the independent expert as contained in hi s report dated 8 N ovember
2017 ("the Westgate Report") are clear and conclusive [Volume 7/Annex 141].
The Westgate Report
213. In summary, the W estgate Report concludes:
213 .1. The pas sport i s a genuine and authenti c Indian travel document and not a
counterfeit. This assessment is based on a review of the security elements in the
document, including the presence of a high quality cylinder mould watermark
through the document, random UV fluorescent fibres and high quality print, along
with an additional ghost image (paragraph 9 of the Westgate Report) [Volume
7 /Annex 141/page 2];
213 .2. The laminate has a security print on the inside which is clear and undamaged,
and there is no evidence that the image is not original to the document (paragraph 9
of the Westgate Report [Volume 7/Annex 141/page 21);
213.3. The various entry, exit and other official endorsements in the passport contain
specific elements which give a strong indication that they are genuine. For example,
there are detailed imprints in the ink endorsements using specialist inks, and there is
no evidence of alteration or other forgery relating to any of the endorsements
(paragraph 11 of the Westgate Report [Volume 7/Annex 141/page 31);
213 .4. "From my knowledge and understanding of the airport immigration system in
India, the immigration counters are connected ta a central database, and any
irregularities in the authenticity [of] a passport would ordinarily be flagged up on
such a database. Thus I would observe that the frequency with which the individual
presented the passport at the immigration counter in India for entry and for exit is
very strong supportive evidence of the authentic nature of the passport. In addition,
if there were issues concerning the holder of an authentic passport, such as an
Interpol 124/7 notice, and Indian central watch-list entry, criminal proceedings,
issues relating ta identity, these would be very likely ta be spotted at the point of
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encounter with the immigration authorities when the passport was scrutinised by
officiais in India. Such officiais wouid be examining hundreds of passports on a
daily basis and wouid thus have considerably more experience in respect of such
documents" (paragraph 15 of the Westgate Report [Volume 7/Annex 141/page 71).
214. On the basis of the information that Pakistan has put before the Court, the inferences
that the Courtis invited to draw have not been (and are incapable of being) rebutted:
214.1. India refuses to provide any evidence of the Indian nationality of the person
that daims to be Commander Kulbhushan Sudhir Jadhav because India realises that
in doing so India' s own wrongdoing will be exposed;
214 .2. India' s wrongdoing in this case, inter alia, includes providing Commander
Jadhav with an authentic Indian passport and clothing him with a false Muslim
identity in the name of 'Hussein Mubarak Patel'. He appears to have presented the
passport on at least 17 occasions to Indian immigration authorities when entering or
leaving India. His ability to do so without any apparent hindrance leads to the
conclusion that:
214.2.1.
214.2.2.
The provision of the authentic passport; and
The provision of a false identity in a Muslim name;
are both acts and/or culpable omissions oflndia and/or its instrumentalities.
215. Such acts cannot have been intended to facilitate anything other than
clandestine/nefari ous activity.
216. Commission of such a gross violation of basic norms upon which friendly relations
between States are premised cannot provide a foundation for the invocation of Treaty
rights intended to promote friendly relations.
217. Over and above the question dealt with in Section V(B) below as to whether
'espionage' is embraced by the VCCR 1963, it is a fundamental violation of the
principles of good faith and of friendly relations amongst States for India to conduct itself
in this manner.
218. Pakistan respectfully submits that:
218.1. Both Commander Jadhav's and India's entitlement to consular access are
based upon the establishment as a matter oflaw of his Indian nationality. Typically,
nationality is proved by a valid passport. However, the provision by India of a false
identity to Commander Jadhav and/or Commander Jadhav' s obtaining of a false
identity within an authentic passport isprimafacie (and unsurprisingly) an unlawful
actas a matter oflndian domestic law. Therefore the basis of Commander Jadhav' s
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and India' s daim to entitlement to consular access is rooted in an unlawful act ( or
acts) as a matter oflndian and public international law;
218.2. India' s failure to provide any explanations and/or evidence regarding the false
identity/authentic passport in Commander Jadhav' s possession at the time of his
arrest has meant that Pakistan was effectively obstructed and/or prevented by India
from being able to establish with absolute certainty Commander Jadhav' s true
identity and his foreign nationality. It is ironie (if not perverse) for India to now
contend that "nationality" required no proof- either because of Commander Jadhav
possessing an Indian passport (in a false identity), or because of the confession to
being an Indian spy;
Ex turpi causa
218.3. Commander Jadhav has voluntarily confessed in detail to having been
despatched by India to commit acts of espionage and terrorism in Pakistan. The
despatching of a spy/terrorist by a State into the territory of another State is a grave
violation of international law, and is conduct that fundamentally contravenes the
Principles of the Charter of the United Nations;
218.4. Pakistan respectfully submits that, by virtue of the doctrine of ex turpi causa,
India' s illegal acts in this regard deprive it of standing to invoke the jurisdiction of
the Court in order to gain access toits spy/terrorist, let al one advance a daim in
respect of denial of consular access;
218.5. Furthermore, any asserted denial of consular access in respect of Commander
Jadhav by Pakistan was the direct consequence oflndia's own illegal activities, in
using an espionage agent of terror to violate and/or undermine the territorial integrity
and political sovereignty of Pakistan through gross violation oflaw;
218.6. India' s failure to provide Pakistan with any measure of assistance whatsoever
in the investigation of the crimes committed by Commander Jadhav is a violation of
erga omnes obligations and/or otherwise binding obligations as contained in UN
Security Council Resolution 1373 (2001) [Volume 5/Annex 89].
219. On the basis of the above, Pakistan observes, (with regret to the Court), that India is
guilty of egregious illegal conduct in providing Commander Jadhav with an authentic
passport and false identity, and despatching him to carry out acts of espionage and
terrorism in Pakistan in contravention of the Charter of the United Nations.
220. Pakistan respectfully invites the Court to dedare India' s daim as advanced through its
Application and its Memorial to be inadmissible on the basis of the doctrine of illegality
and/or the dean hands doctrine and/or the principle of ex injuria jus non oritur.
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IV. FURTHER, OR IN THE ALTERNATIVE, EVEN IF THE
THRESHOLD FOR JURISDICTION HAS BEEN ENGAGED,
THE PRELIMINARY ISSUES SHOULD MILITATE AGAINST
THE GRANTING OF ANY RELIEF
221. Further, or in the alternative, Pakistan respectfully submits that, even if the Court
considers that the preliminary issues raised in Section III above do not operate so as to
render India' s daim inadmissible, the preliminary issues raised in Section III above
nevertheless should militate against the granting of any relief to India.
222. Without prejudice to the foregoing, it may be the case that the Court considers that the
preliminary issues raised in Section III above are more suited for discussion within the
merits/relief elements, rather than as freestanding jurisdiction or admissibility
considerations of an international daim.
223. For the avoidance of any doubt, Pakistan does not seek and is content to dispense with
any possible bifurcation of proceedings in this regard.
224. The Court considered this point in Oil Platforms (Islamic Republic of Iran v United
States of America), Judgment, IC.J Reports 2003, page 161. The Court (at paragraphs
27-30) [Volume 3/Annex 66] stated:
"2 7. The Court will first consider a contention ta which the United States appears ta have
attributed a certain preliminary character. The United States asks the Court ta dismiss
Iran 's claim and refuse it the relief it seeks, be cause of Iran 's allegedly unlawful conduct,
i.e., its violation of the 1955 Treaty and other rules of international law relating ta the
use of force. The United States invokes what it suggests are three related principles in
support of this request. First, a party that acts improperly with respect ta the subjectmatter
of a dispute is not entitled ta relief; according ta the United States, Iran had
committed, at the time of the actions against the platforms, manifestly illegal armed
attacks on United States and other neutral shipping in the Persian Gulf, and it has
misrepresented, in the present proceedings, the facts of the case be fore the Court. Second,
a party that has itself violated obligations identical ta those that are the basis for its
application is not entitled ta relief and Iran had allegedly infringed itself the "mutual and
reciprocal" obligations arisingfrom the 1955 Treaty. Third, an applicant is not entitled
ta relief when the actions it complains of were the result of its own wrongful conduct.
Thus the United States claims that the attacks on the platforms were a consequence of
Iran 's previous wrongful behaviour in the Persian Gulf.
2 8. Iran responds that the concept of "clean hands" underlying the se arguments of the
United States, "while rejlecting and incorporating fundamental principles of law inspired
by good faith, is not an autonomous le gal institution". It contends that the concept of
"clean hands" requires the ope ration of other institutions or le gal ru les for its
implementation. Iran argues that the "plaintif.f's own wrongful conduct" as a ground for
Page 64 of 147
inadmissibility of a claim relates ta claims arising in the context of diplomatie protection
and concerns only a foreign individual 's "clean hands ", but that such a principle is
irrelevant in direct State-to-State claims. According ta Iran, as far as State-to-State
claims are concerned, such principle may have legal significance only at the merits stage,
and only at the stage of quantification of damages, but does not deprive a State of locus
standi in judicio.
29. The Court notes that these issues were first raised by the United States in its CounterMemorial,
ajter the Judgment of the Court of 12 December 1996 on the preliminary
objection of the United States ta jurisdiction. In that pleading those issues were dealt with
at the end, ajter the United States had set out its arguments on the merits, and not by way
of a preliminary issue. In subsequent pleadings and in oral argument it has presented
them as having a rather preliminary character, but it has nevertheless not gone sa far as
ta suggest that they are issues of admissibility appropriate ta be enquired into before any
examination of the merits. Objections ta admissibility normal/y take the form of an
assertion that, even if the Court has jurisdiction and the facts stated by the applicant State
are assumed ta be correct, nonetheless there are reasons why the Court should not
proceed ta an examination of the merits. That is not the case here. The United States does
not ask the Court ta find Iran 's claim inadmissible; it asks the Court ta dismiss that
claim. It does not argue that the Court should be debarred from examining the merits of
the Iranian claim on the grounds of Iran 's conduct; rather it argues that Iran 's conduct is
such that it "precludes it from any right ta the relief it seeks from this Court", or that it
"should not be permitted ta recover on its claim ". The United States invites the Court ta
make a jinding "that the United States measures against the platforms were the
consequence of Iran 's own unlawful uses of force" and submits that the "appropriate
legal consequences should be attached ta thatfinding". The Court notes that in order ta
make that finding it would have ta examine Iranian and United States actions in the
Persian Gulf during the relevant period - which it has also ta do in order ta rule on the
Iranian claim and the United States counter-claim.
3 O. At this stage of its judgment, therefore, the Court does not need ta deal with the
request of the United States ta dismiss Iran 's claim and refuse the relief that it seeks on
the basis of the conduct attributed ta Iran. The Court will now proceed ta the
consideration of the claims made by Iran and the defences put forward by the United
States".
225. The United States of America in the Oil Platforms case did not ask the Court to
declare Iran' s claim as inadmissible, but rather the Court was asked to dismiss the claim.
By contrast, in the instant case Pakistan does invite the Court to declare India's claim
inadmissible, on the basis of the preliminary issues discussed in Section III above.
226. However, further, or in the alternative, Pakistan submits that, should the Court
consider that the preliminary issues discussed in Section III ab ove do not render India' s
claim inadmissible, nonetheless the Court should consider whether those preliminary
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issues militate against the granting of any relief to India, including that claimed in its
Application and/or its Memorial.
227. Pakistan respectfully submits that the content of Article 39 of the International Law
Commission' s ("ILC") 2001 Draft Articles on Responsibility of States for Intemationally
Wrongful Acts ("ARSIWA 2001") (Contribution to the injury) [Volume 6/Annex
134/page 109] informs the deliberations of the Court regarding the relief claimed by
India:
"In the determination of reparation, account shall be taken of the contribution ta the
injury by wilful or negligent action or omission of the injured State or any persan or
entity in relation ta whom reparation is sought".
228. In the ILC's Commentary to Article 39 ARSIWA 2001, it is stated (at paragraph (2))
[Volume 6/Annex 134/page 110] that:
"Article 39 recognizes that the conduct of the injured State, or of any persan or entity in
relation ta whom reparation is sought, should be taken into account in assessing the form
and extent of reparation".
229. Further, the Commentary to Article 39 ARSIWA 2001 continues (at paragraph (6))
[Volume 6/Annex 134/page 110]:
"The wilful or negligent action or omission which contributes ta the damage may be that
of the injured State or "any persan or entity in relation ta whom reparation is sought".
This phrase is intended ta caver not only the situation where a State claims on behalfof
one of its nationals in the field of diplomatie protection, but also any other situation in
which one State invokes the responsibility of another State in relation ta conduct
primarily ajfecting some third party". (emphasis added)
230. Accordingly, Pakistan respectfully submits that the conduct oflndia and/or the
conduct of Commander Jadhav himself (as an instrument oflndia) must be taken into
account in any consideration the Court undertakes as regards relief that might otherwise
be granted, including whether the conduct is of such grave illegality that it militates
against the granting of any relief at all.
Page 66 of 147
V. THE VIENNA CONVENTION ON CONSULAR RELATIONS
1963 IS NOT ENGAGED
231. Pakistan submits that the VCCR 1963 is not engaged in the instant case.
232. The VCCR 1963 was adopted at Vienna on 24 April 1963 and entered into force on
19March 1967.
233. The rationale for the drafting and promulgating of the VCCR 1963 was to promote
friendly relations among nations. This is clear from the Preamble to the VCCR 1963
[Volume 5/Annex 88]:
"The States Parties ta the present Convention,
Having in mind the Purposes and Princip/es of the Charter of the United Nations
concerning the sovereign equality of States, the maintenance of international peace and
security, and the promotion of friendly relations among nations,
Believing that an international convention on consular relations, privileges and
immunities would also con tri bute ta the development of friendly relations among nations,
irrespective of their dif.fering constitutional and social systems".
234. Pakistan respectfully submits that it would be inimical to the promotion of friendly
relations among nations, and to the purpose of the VCCR 1963, if it were to be the case
that:
234.1. an individual is clothed by his "sending State" with a false identity in order to
clandestinely enter the "receiving State",
234.2. for the purposes of carrying out criminal activity of the most grievous kind at
the behest of the "sen ding State",
234.3. to then be able to communicate freely with the consular agents or consular
authorities of the "sending State" following his arrest.
235. This is all the more so evident in the present situation. Despite repeated requests,
India has failed to comply with a fundamental prerequisite to the engagement of the
VCCR 1963 - that is, proof of nationality. India' s failure or refusal to establish or prove
that Commander Jadhav is an Indian national is not and cannot be dismissed as a mere
technicality. Pakistan submits that the VCCR 1963 cannot be engaged in circumstances
where the sending State does not establish that the accused individual is, in fact, its
national - all the more so where the failure/refusal to is unexplained.
236. Indeed, India's failure or refusal in this regard arises because of the dilemma it faces:
iflndia were to properly address the questions raised by Pakistan in respect of
Page 67 of 147
Commander Jadhav' s possession of an authentic Indian passport bearing a false (Muslim)
name, Pakistan submits that this would lay bare India's use of Commander Jadhav as an
instrument of espionage and terrorism.
237. Pakistan asked detailed, legitimate and necessary questions relating to the passport in
its request dated 31 May 2017, and repeated the same in its requests dated 30 August
201 7 and 26 October 201 7:
237.1. 31May2017:
"c) When Commander Jadhav was apprehended, he was in the possession of an Indian
passport which bore a dif.ferent name - 'Hussein Mubarak Patel' - a Muslim name, and
one that was patent/y false. We have provided the Government of India with a copy of the
passport and the confession of Commander Jadhav on 23rd January 2017 in the context of
the terrorism investigation requestfor Mutual Legal Assistance ("MLA Request'').
d) We regret ta note that the Government of India has failed ta engage the MLA Request,
which is a violation of the fundamental obligations enshrined in the UN Charter and
numerous UN Security Council Resolutions including UNSC 1373 (2001).
e) On 14th April 2017, in a public statement, the Adviser ta the Prime Minister of Pakistan
on Foreign A.flairs, inter alia, noted that India had provided no explanation as ta how
and in what circumstances Commander Jadhav came ta be in possession of this passport
bearing a false name - and called upon India ta do sa.
j) However, ta date, India has made no response in this regard and has made no effort ta
provide any kind of explanation at all".
[Volume 2/Annex 42/pages 1-2]
237.2. 30 August 2017:
"5. By way of example, the Government of India was provided with a clear copy of
passport No. L9630 722 in the name of 'Hussein Mubarak Patel '.
6. It is incumbent upon the Government of India ta explain:
a) Whether Commander Jadhav is indeed Commander Jadhav or 'Hussein Mubarak
Patel'.
b) If he is not 'Hussein Mubarak Patel ', does such a persan exist?
c) If 'Hussein Mubarak Patel' does exist or does not exist, what attempts has the
Government of India made at the very latest since 2 3rd January 2017 ta investi gate how
Commander Jadhav was able ta obtain Passport issued by the competent authorities in
India?
d) The travel history of Commander Jadhav.
Page 68 of 147
7. In the alternative, is it the Government of India 's position that Commander Jadhav
was in possession of afalse and inaccurate document such that either:
a. His name is not 'Hussein Mubarak Patel ': or
b. It is nota passportfrom the competent Indian authorities?
8. If that is the case, does the Government of India consider that Commander Jadhav has
committed a crime or crimes under Indian Law? If sa, what is lare the crimes?
9. The Islamic Republic of Pakistan does not consider that the purported return of the
request in any way excuse the failure on the part of the Republic of India ta comply with
its international obligations as aforesaid. Ta facilitate the Republic of India 's
compliance, the request is provided again".
[Volume 2/Annex 43/pages 1-2]
237.3. 26 October 2017:
"(1) Commander Jadhav is indeed Commander Jadhav or 'Hussein Mubarak Pat el'
(2) If he is not 'Hussein Mubarak Patel', does such a persan exist?
(3) If 'Hussein Mubarak Patel' does exist or does not exist, what attempts has the
Government of India made at the very latest since 2 3rd January 2017 ta investi gate how
Commander Jadhav was able ta obtain what appears ta be an authentic Indian passport
issued by the competent authorities in India?
(4) In the alternative, is it the Government of India 's position that Commander Jadhav
was in possession of afalse and inaccurate document either:
a. because his name is not 'Hussein Mubarak Patel '; or
b. because it is nota passportfrom the competent Indian authorities?
(5) If that is the case, does the Government of India consider that Commander Jadhav has
committed a crime or crimes under Indian law? If sa, what islare the crimes?
(6) What is the actual authentic passportfor Commander Kulbhushan Sudhir Jadhav
(assuming he was issued with a pas sport)? P lease provide full particulars of the date of
issue, date of expiry, passport number, place of issue, name and photograph in the actual
(presently valid) passport issued ta Commander Jadhav if such a document exists.
Without prejudice ta the foregoing, the Islamic Republic of Pakistan has already put the
Republic of India on notice that it has failed ta establish the Indian nationality of
Commander Jadhav." [Volume 2/Annex 44/pages 2-3]
238. Pakistan submits that India' s failure or refusal to furnish Pakistan (let al one the Court)
with any evidence to date of Commander Jadhav' s nationality requires the dismissal of its
Page 69 of 147
daim on the basis that the VCCR 1963 was not and is not engaged as regards
Commander Jadhav.
239. Further, or in the alternative, the rationale for a consul protecting the interests oftheir
nationals abroad against potential violations by the receiving State was only ever intended
to be used to protect the legitimate interests of those nationals.
240. This situation remains true today after the entry into force of the VCCR 1963, which
contains many reminders (if needed) that consular functions are intended to be exercised
in a manner that is in accordance with the international law and the domestic law of the
receiving State, including:
240.1. Article 5: "(a) protecting in the receiving State the interests of the sending
State and of its nationals, bath individuals and bodies corporate, within the limits
permitted by international law" [Volume 5/Annex 88/page 5];
240.2. Article 5: "(!) acting as notary and civil registrar and in capacities of a
similar kind, and performing certain fonctions of an administrative nature, provided
that there is nothing contrarv thereto in the laws and regulations of the receiving
State" [Volume 5/Annex 88/page 5];
240.3. Article 5: "(g) safeguarding the interests ofnationals, bath individuals and
bodies corporate, of the sending State in cases of succession mortis causa in the
territory of the receiving State, in accordance with the laws and regulations of the
receiving State" [Volume 5/ Annex 88/page 5];
240.4. Article 5: "(h) safeguarding, within the limits imposed by the laws and
regulations of the receiving State, the interests of minors and other persans lacking
full capacity who are nationals of the sending State, particularly where any
guardianship or trusteeship is required with respect ta such persans" [Volume
5/Annex 88/page 5];
240.5. Article 5: "(i) subiect ta the practices and procedures obtaining in the
receiving State, representing or arranging appropriate representation for nationals
of the sending State before the tribunals and other authorities of the receiving State,
for the purpose of obtaining, in accordance with the laws and regulations of the
receiving State, provisional measures for the preservation of the rights and interests
of the se nationals, where, be cause of absence or any other reason, such nationals are
unable at the proper time ta assume the defence of their rights and interests"
[Volume 5/Annex 88/page 5];
240.6. Article 5: "(j) transmittingjudicial and extra-judicial documents or executing
letters rogatory or commissions ta take evidence for the courts of the sending State in
accordance with international agreements in force or, in the absence of such
international agreements, in any other manner compatible with the laws and
regulations of the receiving State" [Volume 5/ Annex 88/pages 5-6];
240.7. Article 5: "(l) extending assistance ta vessels and aircraft mentioned in subparagraph
(k) of this article, and ta their crews, taking statements regarding the
voyage of a vesse!, examining and stamping the ship 's papers, and, without preiudice
Page 70 of 147
ta the powers of the authorities of the receiving State. conducting investigations into
any incidents which occurred during the voyage. and settling disputes of any kind
between the master. the officers and the seamen in sa far as this may be authorized
by the laws and regulations of the sending State" [Volume 5/Annex 88/page 6];
240.8. Article 5: "(m) performing any other functions entrusted ta a consular post by
the sending State which are not prohibited by the laws and regulations of the
receiving State or ta which no objection is taken by the receiving State or which are
referred ta in the international agreements in force between the sending State and the
receiving State" [Volume 5/Annex 88/page 6];
240.9. Article 36: "2. The rights referred ta in paragraph 1 of this Article shall be
exercised in con/Ormity with the laws and regulations of the receiving State. subject
ta the proviso. however. that the said laws and regulations must enable full effect ta
be given ta the purposes for which the rights accorded under this Article are
intended' [Volume 5/Annex 88/page 17-18];
240.10. Article 38: "In the exercise of their fonctions. consular officers may address:
... (b) the competent central authorities of the receiving State if and ta the extent that
this is allowed by the laws. regulations and usages of the receiving State or by the
relevant international agreements" [Volume 5/Annex 88/page 18];
240.11. Article 55: "J. Without prejudice ta their privileges and immunities. it is the
duty of all persans enjoying such privileges and immunities ta respect the laws and
regulations of the receiving State. They also have a duty not ta interfere in the
internai a.flairs of that State" [Volume 5/Annex 88/page 25].
(emphasis added)
241. Moreover, a consideration of the travaux préparatoires of the VCCR 1963 and State
practice evinces no evidence that customary international law supports the contention that
an individual arrested, who manifests from his own conduct and materials in his
possession a prima facie case of espionage, is entitled to consular access pursuant to
Article 36(1 )(b) VCCR 1963.
242. Accordingly, Pakistan submits that the commission of acts of espionage by
Commander Jadhav (and his confession to having committed those acts at the behest of
India without any serious attempt at rebuttal) requires the dismissal oflndia' s claim, on
the basis that the VCCR 1963 was not and is not engaged as regards Commander Jadhav.
Page 71 of 147
(A) INDIA HAS FAILED TO ESTABLISH THE NATIONALITY OF
COMMANDER JADHA V
243. It is axiomatic from the nature of consular access that a receiving State' s obligation to
allow consular access only arises in respect of foreign nationals. A fundamental precondition
to engage the overall scheme of consular access requires the fact that an
arrestee or detainee is indeed a national of the "sending State" to be established before an
entitlement to consular access can arise. India's answer is simple (albeit wrong):
Commander Jadhav confessed to being an Indian spy and thus his nationality is not in
issue. This would be a perverse outcome indeed. All the more so where India otherwise
pours scorn on the confession of Commander Jadhav, and entirely dismisses its evidential
status.
Proof of nationality - a valid passport
244. A valid passport is widely considered the primary official document that
acknowledges and certifies the bearer to be a citizen of the issuing State. Professor Adam
I. Muchmore7 explains that:
"The passport has developed from a somewhat ad-hoc letter addressed ta foreign powers
into a sophisticated, formalized document attesting ta bath the identity and nationality of
its bearer. Although early passports were not always accepted as proof of nationality,
even under the law of the issuing state, the modern passport is now widely accepted as
proof of nationality under domestic law. Moreover, at least one major international
tribunal has accepted the passport as near-conclusive evidence of domestic law
nationality". (Muchmore AI, 'Passports and Nationality in International Law' in
University of California Davis Journal of International Law & Policy (2004), pp. 301-
355 at pages 305-306 [Volume 5/Annex 111])
245. Furthermore, in the leading academic text on consular law, Lee & Quigley, Consular
Law and Practice (l st edition, 1961 ), it was stated (at pages 175-176) [Volume 5/Annex
112.2] that:
"A passport is an official document acknowledging and certifj;ing the bearer as a citizen
of the issuing state. It is regarded as a prima facie evidence of the national status of the
holder and has become increasingly a necessity in foreign travels ... Because of the
importance attached ta a passport, it is understandable why states invariably require
their consuls ta establish the identity, allegiance and national status of the applicant
beyond all reasonable doubt be fore issuing a passport".
246. The International Civil Aviation Organization (ICAO) has issued Document 9303
(Seventh Edition, 2015) on Machine Readable Travel Documents, which contains
recommendations to national governments on the format of passports. The entire
document is exhibited hereto as it demonstrates the level of detail States have engaged in
7 Associate Dean for Research & Partnerships, Prof essor of Law, Penn State Law
Page 72 of 147
so as to ensure consistency in travel documents, and, perhaps most importantly, to
eradicate abuse of them [Volume 6/Annex 135].
247. The specifications are not intended to be a standard for national identity documents.
However, Document 9303 provides that a State whose identity documents are recogni sed
by other States as valid travel documents shall design its identity documents such that
they conform to the specifications of Doc 9303-3 and Doc 9303-4, Doc 9303-5 or Doc
9303-6. Document 9303 comprises a number of sections, including Part 2: Specifications
for the Security of the Design, Manufacture and Issuance ofMRTDs (mandatory and
optional specifications for the precautions to be taken by travel document issuing
authorities to ensure that their MRTDs, and their means of personalization and issuance to
the rightful holders, are secure against fraudulent attack. Mandatory and optional
specifications are also provided for the physical security to be provided at the premises
where the MRTDs are produced, personalized and issued and for the vetting of personnel
involved in these operations.)
248. The adoption of common international standards for passports is necessary and
understandable. Iflegitimate entry and exit is to be permitted by States for foreign
nationals, they must to a very large extent rel y upon the possession of an authentic travel
document as a basis for eliminating what might otherwise be very cumbersome enquiries
for each and every person entering the jurisdiction. The need for the issuance of travel
documents not to be abused is obvious.
249. The principle that a passport that itself is in contravention of the law is not valid for
any purpose was apparent in international law, long before the entry into force of the
VCCR 1963, as demonstrated by The Koszta Case [Volume 5/Annex 113/page 133-134].
250. In 1848-1849, one Martin Koszta participated in a failed rebellion against Austria and
then fled to Turkey. After being arrested in Turkey, he was released on demand that he
leave Turkey and he chose the United States of America as his country of exile.
Notwithstanding that the applicable law required five years' residence before he could be
naturalised as a US citizen, he returned to Smyrna (now Izmir, Turkey), having obtained a
traveling pass stating that he was entitled to US protection. He was kidnapped by
Austrian agents and the United States of America demanded his release - followed up by
sending a warship to enforce its demand. The ensuing diplomatie crisis was ultimately
settled through mediation by a French consul. However, Austria protested against the
daim by the United States of America that it was entitled to exercise diplomatie
protection over Martin Koszta. The question as to whether his incomplete naturalisation
entitled him to protection was ultimately not determined.
Page 73 of 147
251. Nevertheless, in hisHand-Book of International Law (1895), Professor Edwin F.
Glenn8 considered the effect of the US passport document that Martin Koszta had
obtained and concluded (at page 134) [Volume 5/Annex 113] that:
"In regard ta the effect of the passport given ta Koszta, and which it was claimed
conferred upon him the right of protection by the United States, there is no valid ground
for such a contention, as it appears that this was given in contravention of law, and
possessed no validity for any purpose".
252. In Avena and Other Mexican Nationals (Mexico v United States of America), by an
application dated 9 January 2003, Mexico commenced proceedings against the United
States of America concerning alleged violations of Articles 5 and 36 VCCR 1963 in
respect of ( originally) 54 individuals who had been sentenced to death in certain states
within the United States of America. The United States of America raised an objection
that certain of the individuals in respect ofwhich Mexico sought consular access were not
Mexican nationals [Volume 3/Annex 67/para. 41]. In response to that objection, Mexico
amended its submissions so as to withdraw its request for relief in the case of one of the
individuals, Mr. Enrique Zambrano Garibi, having corne to the conclusion that Mr. Garibi
in fact was a dual Mexican-US national [Volume 3/Annex 67/para. 7].
253. In its Judgment of3 l March 2004, the Court stated (at paragraphs 53-54) [Volume
3/Annex 67]:
"53. The Parties have advanced their contentions as ta nationality in three dif.ferent legal
contexts. The United States has begun by making an objection ta admissibility, which the
Court has already dealtwith (see paragraphs 41 and 42 above). The United States has
further contended that a substantial number of the 52 persans listed in paragraph 16
above were United States nationals and that it thus had no obligation ta these individuals
under Article 3 6, paragraph 1 (b ). The Court will address this aspect of the matter in the
following paragraphs. Finally, the Parties disagree as ta whether the requirement under
Article 3 6, paragraph 1 (b ),for the information ta be given "without delay" becomes
operative upon arrest or upon ascertainment of nationality. The Court will address this
issue later (see paragraph 63 below).
54. The Parties disagree as ta what each of them must show as regards nationality in
connection with the applicability of the terms of Article 36, paragraph 1, and as ta how
the principles of evidence have been met on the facts of the cases".
254. The Court continued (at paragraphs 55-56) [Volume 3/Annex 67] to set out the
parties' contentions on where the burden of prooflay as regards the establishing of
8 Edwin F. Glenn was a Major-General in the US Army and a former Professor ofMilitary Science & Tactics at
the University of Minnesota. He served in the Judge Advocate General's Department in Dakota, Columbia and
the Visayas. He was judge advocate of the Fifth Brigade and later was given command of the Eighty-Third
Division in August 1917
Page 74 of 147
nationality in the context of a sending State exercising diplomatie protection in respect of
an individual:
"55. Bath Parties recognize the well-settled principle in international law that a litigant
seeking ta establish the existence of a fact be ars the burden ofproving it (cf Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction andAdmissibility, Judgment, I.C.J. Reports 1984, p. 437, para.
101). Mexico acknowledges that it has the burden ofproofto show that the 52 persans
listed in paragraph 16 above were Mexican nationals ta whom the provisions of Article
36. paragraph 1 (b), in principle applv. It claims it has met this burden by providing ta
the Court the birth certificates of the se nationals. and declarations {rom 42 of them that
thev have not acquired United States nationality. Mexico further contends that the burden
of proof lies on the United States should it wish ta contend that particular arrested
persans of Mexican nationality were, at the relevant time, also United States nationals.
5 6. The United States accepts that in such cases it has the burden of proof ta demonstrate
United States nationality, but contends that nonetheless the "burden of evidence" as ta
this remains with Mexico. This distinction is explained by the United States as arising out
of the fact that persans ofMexican nationality may also have acquired United States
citizenship by operation of law, depending on their parents' dates and places of birth,
places of residency, marital status at time of their birth and sa forth. In the view of the
United States "virtually all such information is in the hands of Mexico through the now
5 2 individuals it represents ". The United States contends that it was the responsibility of
Mexico ta produce such information, which responsibility it has not discharged".
(emphasis added)
255. The Court held (at paragraph 57) [Volume 3/Annex 67]:
"57. The Court finds that it is for Mexico ta show that the 52 persans listed in paragraph
16 above held Mexican nationality at the time of their arr est. The Court notes that ta this
end Mexico has produced birth certificates and declarations of nationality. whose
contents have not been challenged by the United States". (emphasis added)
256. In the instant case, despite multiple opportunities afforded by Pakistan to do so, India
has not provided any evidence regarding Commander Jadhav's nationality.
257. The Court continued (at paragraph 57) [Volume 3/Annex 67]:
"The Court observes further that the United States has. however. questioned whether
some of the se individuals were not also United States nationals. Thus, the United States
has informed the Court that, "in the case of de fendant Ayala (case No. 2) we are close ta
certain that Ayala is a United States citizen", and that this could be confirmed with
absolute certainty if Mexico producedfacts about this matter. Similarly Mr. Avena (case
No. 1) was said ta be "likely" ta be a United States citizen, and there was "some
possibility" that some 16 other de fendants were United States citizens. As ta six others,
the United States said it "cannot rule out the possibility" of United States nationality. The
Page 75 of 147
Court takes the view that it was for the United States ta demonstrate that this was sa and
ta furnish the Court with all information on the matter in its possession. In sa far as
relevant data on that matter are said by the United States ta lie within the knowledge of
Mexico. it was for the United States ta have sought that information {rom the Mexican
authorities. The Court cannot accept that, because such information may have been in
part in the hands of Mexico, it was for Mexico ta produce such information. It was for the
United States ta seek such information. with sufficient specificity. and ta demonstrate bath
that this was done and that the Mexican authorities declined or failed ta respond ta such
specific requests. At no stage, however, has the United States shown the Court that it
made specific enquiries of those authorities about particular cases and that responses
were not forthcoming. The Court accordingly concludes that the United States has not
met its burden of proof in its attempt ta show that persans ofMexican nationality were
also United States nationals". (emphasis added)
258. By contrast, in the instant case, as demonstrated by the evidence placed before the
Court by Pakistan (and deliberately not put in evidence by India), Pakistan made repeated
formal requests to the Indian authorities for explanations regarding the status of
Commander Jadhav' s passport, and has repeatedly reminded India that it has
failed/refused to provide evidence as to his Indian nationality.
259. Had a substantive response been forthcoming, India's replies might have provided the
necessary proof that Commander Jadhav was an Indian national. However, India made no
attempt to engage with the requests dated 31 May 2017, 30 August 2017 and 26 October
2017 [Volume 2/Annex 42; Annex 43; Annex 44].
260. In Avena, the Court held (at paragraph 63) [Volume 3/Annex 67]:
"63. The Courtjinds that the duty upon the detaining authorities ta give the Article 36,
paragraph 1 (b), information ta the individual arises once it is realized that the persan is
a foreign national, or once there are grounds ta think that the persan is probably a
foreign national. Preciselv when this mav occur will varv with circumstances". ( emphasis
added)
261. Pakistan respectfully submits that, in a case such as that of Commander Jadhav, an
espionage agent carrying a patently authentic passport with a false identity, the truth of an
arrested individual' s nationality is likely to take some time to establish and is bound to
require confirmation from the authorities asserting any rights for consular access - unless
they seek to disavow the individual or evade addressing the issue for fear of incrimination
in illegal activity.
262. The Court held (at paragraph 65) [Volume 3/Annex 67]:
"65. Bearing in mind the complexities explained by the United States, the Court now
begins by examining the application of Article 36, paragraph 1 (b), of the Vienna
Convention ta the 52 cases. In 45 of these cases, the Court has no evidence that the
Page 76 of 147
arrested persans claimed United States nationality, or were reasonably thought ta be
United States nationals, with specific enquiries being made in timelv fashion ta verifv
such dual nationality. The Court has explained in paragraph 57 above what enquiries it
would have expected ta have been made, within a short time period, and what information
should have been provided ta the Court". (emphasis added)
263. As explained above, in contrast to the United States of America in the Avena case,
Pakistan in the instant case did make specific enquiries oflndia, seeking the provision of
evidence, not least to seek to conclusively establish Commander Jadhav' s nationality.
Those specific enquiries, as contained in Pakistan' s 23 January 2017 MLA Request
[Volume 2/Annex 17] and repeated thereafter, were made in a "timely fashion" in the
context of the complex investigation of espionage and terrorism committed by
Commander Jadhav and individuals and groups with whom he conspired.
264. No response to the MLA Request was received from India and no evidence in that
regard was ever provided by India. Pakistan' s la test letter (following other reminders,
including one dated 31 May 2017 [Volume 2/Annex 42] and another dated 30 August
2017 [Volume 2/Annex 43]) on this issue to India's Ministry ofExternal Affairs of 26
October 2017 [Volume 2/Annex 44] has not elicited any response at all from India.
265. Furthermore, that the inability, or failure, (let alone refusal) of the sending State to
establish an individual' s nationality before the Courtis fatal to an entitlement to exercise
diplomatie protection in respect of that individual is made clear by the Court's findings in
its Judgment in Avena (at paragraphs 66 and 74) [Volume 3/Annex 67]:
"66. Seven persans, however, are asserted by the United States ta have stated at the time
of arr est that they were United States citizens. Onlv in the case of Mr. Salcido (case No.
22) has the Court been provided by the United States with evidence ofsuch a statement.
This has been acknowledged by Mexico. Further. there has been no evidence before the
Court ta suggest that there were in this case at the same time also indications of Mexican
nationality. which should have caused rapid enquirv by the arresting authorities and the
providing of consular information "without delav ". Mexico has accordinglv not shown
that in the case ofMr. Salcido the United States violated its obligations under Article 36.
paragraph 1 (b).
7 4. The Court concludes that Mexico has failed ta prove the violation by the United States
of its obligations under Article 36, paragraph 1 (b), in the case of Mr. Salcido (case No.
22), and his case will not be further commented upon". (emphasis added)
266. In light of the ab ove, Pakistan respectfully submits that India has deliberately chosen
not to seek to establish at all, or to the sufficient required standard, the Indian nationality
of Commander Jadhav for reasons which are (depressingly) all too clear.
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267. Accordingly, Pakistan respectfully submits that India's failure or refusal to establish
the Indian nationality of Commander Jadhav is fatal toits claim to be entitled to seek
consular access in respect of Commander Jadhav.
268. Furthermore, Pakistan respectfully submits, India's complete failure and/or refusal to
establish the Indian nationality of Commander Jadhav means that the VCCR 1963 is not
engaged, because the entire scheme of consular access is only engaged once an accused's
nationality is established.
269. Thus, an authentic passport bearing a false identity on its own cannot be taken to be
any, let al one sufficient, proof of nationality of an individual. It must follow that proof of
nationality requires evidence of the lawful basis upon which the "nationality link" exists
as a matter of domestic law and public international law.
270. In light of the ab ove, Pakistan respectfully invites the Court to dismiss India's daim
as advanced in its Application and its Memorial, on the basis that the VCCR 1963 is not
engaged and does not apply in the case of Commander Jadhav.
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(B) THE VIENNA CONVENTION ON CONSULAR RELATIONS 1963 IS NOT
ENGAGED IN ESPIONAGE CASES
271. Further, or in the alternative, Pakistan submits that the VCCR 1963 does not apply in
cases of individuals who manifest from their own conduct and the materials in their
possession a prima facie case of espionage activity.
The Historical Context of Consular Relations
272. The historical context of consular relations reveals that consuls were charged with the
protection of legitimate interests of nationals abroad, to protect against potential
violations by the receiving State.
273. That this is so was apparent long before the VCCR 1963 was drafted and
promulgated.
274. In 1904, Baron Alphonse Heyking (then the Imperial Russian Consul-General in
London) published 'A Practical Guide for Russian Consular Officers and All Persans
Having Relations with Russia'. A second edition was published in 1916 in which the
following was stated (at page 129) in his discussion of consular assistance to Russian
subjects [Volume 5/Annex 114.2]:
"The duties of the Consul, besides those enumerated in separate paragraphs as under,
comprise in general protection and assistance of any Russian subject, whether in his
Consular district or not. The Consul must help any Russian subject in any legitimate aims
as far as the y appertain ta his sphere of Consular activity". ( emphasi s added)
The History of the Vienna Convention on Consular Relations 1963
275. In 1927, the Faculty of Harvard Law School undertook to organise research and
prepare a Draft on the Legal Position and Functions of Consuls. Professor Quincy Wright
was the Reporter on the Harvard Law School' s Draft on the Legal Position and Functions
of Consuls, which is described as having had a "decisive" impact upon the ILC's
treatment of the subject (do Nascimento GE,' The Vienna Conference on Consular
Relations' in The International & Comparative Law Quarter/y, Vol. 13, No. 4 (Oct.,
1964), pp. 1214-1254 at page 1216 [Volume 5/Annex 115]).
276. In 1928, the Convention on Consular Officers was drafted in Havana, based upon an
earlier draft prepared by the International Commission of American Jurists in Rio de
Janeiro in 1927. The 1928 Havana Convention on Consular Officers is also described as
having had a "strong influence" in the preparation of the ILC's draft (do Nascimento GE,
'The Vienna Conference on Consular Relations' in The International & Comparative
Law Quarter/y, Vol. 13, No. 4 (Oct., 1964), pp. 1214-1254 at page 1216 [Volume
5/Annex 115]).
Page 79 of 147
277. In the 1950s, the ILC worked on a draft convention derived from international
custom, a series of bilateral consular conventions and municipal law/general practice. In
1955, Professor Jaroslav Zourek9 was appointed as Special Rapporteur and provided 3
reports for examination by the ILC. The ILC finalised its Draft Articles on Consular
Relations in 1960. Following the signing of the Vienna Convention on Diplomatie
Relations in 1961, the ILC met again in order to reword the original Draft Articles on
Consular Relations ( do Nascimento GE, 'The Vienna Conference on Consular Relations'
in The International & Comparative Law Quarter/y, Vol. 13, No. 4 (Oct., 1964), pp.
1214-1254 at page 1218 [Volume 5/Annex 115]).
278. The ILC' s Draft Articles on Consular Relations formed the basis of the UN
Conference on Consular Relations ( do N ascimento GE, ' The Vienna Conference on
Consular Relations' in The International & Comparative Law Quarter/y, Vol. 13, No. 4
(Oct., 1964), pp. 1214-1254 at page 1219). Professor Zourek, as Special Rapporteur,
attended the UN Conference on Consular Relations as an Expert ( do Nascimento GE,
'The Vienna Conference on Consular Relations' in The International & Comparative
Law Quarter/y, Vol. 13, No. 4 (Oct., 1964), pp. 1214-1254 at page 1220 [Volume
5/Annex 115]).
279. The UN Conference on Consular Relations was convened in Vienna from 4 March
1963 to 22 April 1963. As explained by the Brazilian Delegate to the UN Conference on
Consular Relations, the principles of existing customary law concerning consular
relations were not necessarily easily to ascertain at that time:
"It is impossible ta dissociate the 1961 Conference on Diplomatie Relations from the
1963 Conference on Consular Relations. The analogy between many of the legal
situations which had ta be resolved in 1961 brought ta mind the rules adopted two years
previously. There was, however, a big dif.ference because in 1961 the Conference had
before it a set of rules on which international custom was reasonably clear; in 1963 the
problem was more complex and the Conference had before it not only certain customs but
also a series of consular conventions, municipal laws and usages" ( do N ascimento GE,
'The Vienna Conference on Consular Relations' in The International & Comparative
Law Quarter/y, Vol. 13, No. 4 (Oct., 1964), pp. 1214-1254 at pages 1214-1215 [Volume
5/Annex 115]).
280. The significance and the effect of the Cold War context upon the exercise of the
codification of international law at this time cannot be overstated. Just a few years
previously, at the 414th Meeting of the ILC on Tuesday 11 June 1957, at 3pm, the
following was stated in general debate (ILC Yearbook 1957, volume 1, page 159,
paragraph 16, column 2) [Volume 5/Annex 90]:
9 Former legal consultant to the Czech Ministry of Foreign Affairs; former Professor of International Law at the
University of Nancy; former Chairman of the International Law Commission.
Page 80 of 147
"16. The Special Rapporteur had had a thankless task, because what the Commission was
in effect trying ta do was ta transplant rules of municipal law into the field of
international law, and the rules of municipal law relating ta civil responsibility dif.fered
greatly from one country ta another. Moreover, it was a singularlv unpropitious moment
for such a task. since distrust and suspicion reigned everywhere, and almost all countries,
bath great and small, in their efforts ta ward off the supposed threat of subversion, had
recourse ta emergency laws and regulations whose effect amounted in practice ta denial
of common law. In his view, it was no exaggeration ta say that, no sooner had individual
rights and freedoms been guaranteed by the constitutions of almost all countries, than the
advent of the atomic era had rendered them almost illusory". (emphasis added)
281. Furthermore, at the UN Conference on Consular Relations itself, the Union of Soviet
Socialist Republics raised a question as to the right of the Government of the Republic of
China to attend the conference. In response, the Chinese delegate stated (Official Records
of the United Nations Conference on Consular Relations, vol. I (summary records of
plenary meetings and of meetings of the First and Second Committees), page 3, paragraph
22) [Volume 5/Annex 91] as follows:
"22. Mr. WU (China) regretted that, at the outset of the Conference, the friendly and
harmonious atmosphere had been broken by a harsh and discordant statement merely
repeating, for propaganda purposes, what the delegations of the State concerned had
been sayingfor years in the United Nations. The United States representative had
explained the situation clearly and succinct/y. The reason why the Chinese communist
regime had not been permitted ta attend the Conference was that it had been created by
Soviet imperialism as a tool of its policy of aggression in Asia and the Far East. That
regime had violated every rule and principle the United Nations stoodfor; it was not
qualified for membership of the United Nations or for representation at the Conference.
Moreover, the question of participation had been settled at the sixteenth session of the
General Assembly, sa that any attempt ta revive the dispute at the Conference was out of
order. The Government of the Republic of China had more right ta be represented in the
Conference than the government of the country whose delegation had challenged that
right: China was a staunch supporter of the ideals and concepts of the United Nations
and fuljilled its duties under the Charter; it did not restrict the movement of foreign
diplomats and consuls ta a radius of jifty miles from its capital, it did not arrest
diplomatie and consular agents on false charges ofespionage. and it did not violate the
premises ofembassies and consulates ta attach apparatus ta their telephones and desks".
(emphasis added)
Travaux Préparatoires
282. Pakistan submits that there is no evidence or suggestion in the travaux préparatoires
to the VCCR 1963 that customary international law principles positively support the
contention that an individual arrested who evidences from his own conduct and materials
in his possession a prima facie case of espionage is entitled to consular access pursuant to
Article 36(1 )(b) VCCR 1963.
Page 81 of 147
283. The International Law Commission 1949-1998 (1999), a three-volume work edited by
the late and much respected Sir Arthur Watts QC, former ChiefLegal Advisor to the UK
Foreign & Commonwealth Office, is considered to provide authoritative commentaries on
the ILC' s deliberations and preparations of draft treaties from 1949-1998.
284. The commentary to Article 36(l)(b) of the ILC's draft convention on consular
relations (at volume 1, page 273-274) is set out below in full [Volume 5/Annex 92]:
"(1) This article de.fines the rights granted ta consular officiais with the abject of
facilitating the exercise of the consular functions relating ta nationals of the sending
State.
(2) First, in paragraph 1 (a), the article establishes the freedom of nationals of the
sending State ta communicate with and have access ta the competent consular official.
The expression "competent consular official" means the consular official in the consular
district in which the national of the sending State is physically present.
(3) The same provision also establishes the right of the consular official ta communicate
with and, if the exercise of his consular functions sa requires, ta visit nationals of the
sending State.
(4) In addition, this article establishes the consular rights that are applicable in those
cases where a national of the sending State is in custody pending trial, or imprisoned in
the execution of a judicial decision. In any such case, the receiving State would assume
three obligations under the article proposed:
(a) Firstly, the receiving State must, without undue delay, inform the consul of the
sending State in whose district the event occurs that a national of that State is committed
ta custody pending trial or ta prison. The consular official competent ta receive the
communication regarding the detention or imprisonment of a national of the sending
State may, therefore, in some cases, be différent from the one who would normal/y be
competent ta exercise the function of providing consular protection for the national in
question on the basis of his normal residence;
(b) Second/y, the receiving State must forward ta the consular official without undue
delay any communication addressed ta him by the persan in custody, prison or detention;
(c) Lastly, the receiving State must permit the consular official ta visita national of the
sending State who is in custody, prison or detention in his consular district, ta converse
with him, and ta arrange for his le gal representation. This provision is designed ta caver
cases where a national of the sending State has been placed in custody pending trial, and
criminal proceedings have been instituted against him; cases where the national has been
sentenced, but the judgement is still open ta appeal or cassation; and also cases where
the judgement convicting the national has become final. This provision applies also ta
other forms of detention (quarantine, detention in a mental institution).
Page 82 of 147
(5) All the above-mentioned rights are exercised in conformity with the laws and
regulations of the receiving State. Thus, visits ta persans in custody or imprisoned are
permissible in conformity with the provisions of the code of criminal procedure and
prison regulations. As a general rule,for the purpose ofvisits ta a persan in custody
against whom a criminal investigation or a criminal trial is in process, codes of criminal
procedure require the permission of the examining magistrate, who will decide in the
light of the requirements of the investigation. In such a case, the consular official must
apply ta the examining magistrate for permission. In the case of a persan imprisoned in
pursuance of a judgement, the prison regulations governing visits ta inmates apply also
ta any visits which the consular official may wish ta make ta a prisoner who is a national
of the sending State.
(6) The expression "without undue delay" used in paragraph 1 (b) allows for cases
where it is necessary ta hold a persan incommunicado for a certain periodfor the
purposes of the criminal investigation.
(7) Although the rights provided for in this article must be exercised in conformity with
the laws and regulations of the receiving State, this does not mean that these laws and
regulations can nullifj; the rights in question".
285. In Pakistan's respectful submission, there is nothing in the authoritative commentary
of Sir Arthur Watts QC to indi cate that the ILC' s draft of the consular access provision
was intended to embrace individuals arrested who evidence from their conduct and
material s in their possession a prima facie case of espionage.
286. Rather, the draft recognised that there would be circumstances where States would be
entitled to hold persans incommunicado for a certain time period for the purposes of
criminal investigations.
287. When the ILC was deliberating on its draft of the proposed consular access
convention, the United Kingdom representative, Sir Gerald Fitzmaurice made
observations, in the context of discussion about whether a sending State' s consular
officials would have the right to communicate with their nationals that were situated in
areas that the receiving State had declared off limits to foreign consular officials on
grounds of national security. He stated that national security would be the only reason
with sufficient weight to justify restricting communication between foreign nationals and
their consular official s (ILC Y earbook 1960 volume 1, page 5 7, paragraph 3 9, column 2)
[Volume 5/Annex 93]:
"39. Moreover, the only real objection that had been made ta paragraph (a) of his draft
concerned communication with nationals in areas ta which access was prohibited on
grounds of national security. There was really no other ground on which the right of a
consul ta visit his nationals could be in question. He agreed that the matter of prohibited
zones should be considered, but he thought Mr. Erim 's amendment was tao broad There
had ta be weighty reasons (such as considerations of national security) for declaring a
Page 83 of 147
particular area closed ta the consul. It would be better ta follow the provisions of article
24 of the draft on diplomatie intercourse. With those reservations, he was prepared ta
accept in his draft of paragraph (a) a reference ta limitations that might be imposed by
national security".
288. In a similar vein, Mr. Grigory Tunkin, then head of the Legal Department of the
Soviet Union' s Foreign Ministry, considered, in discussion about the words "without
delay" in the consular access provision, made a statement that was not inconsistent with
State practice and Customary International Law at that time (for which see below)
concerning espionage cases (ILC Yearbook 1960 volume 1, page 58-59, paragraph 47,
column 1) [Volume 5/Annex 93]:
"47. Mr. TUNKIN felt it might be best ta delete the words "without delay ". There were
cases in which it was impossible ta inform the consul immediately of the arrest or
detention of a national. Sometimes - for instance in espionage cases, where there might
be accomplices at large - it might be desirable that the local authorities should not be
obliged ta inform the consul.
48. The CHAIRMAN remarked that a statement of a general principle of law could not
possibly caver all conceivable cases. If the Commission went into the question ofwhether
cases of espionage should be made an exception the whole principle of consular
protection and communication with nationals would have ta be re-opened'.
289. Pakistan respectfully submits that the paragraphs above demonstrate that espionage
cases were a matter that States were very reluctant to undertake a close examination of at
this moment intime.
290. In the context of the negotiation, drafting and promulgation of the multilateral
convention on consular relations, cases of espionage were seemingly "taken off the table"
to arrive at the VCCR 1963. Spying was, and remains, a topic "too hot to handle", it
seems, best avoided or denied.
291. As a further reflection of the limits upon consular access, the Special Rapporteur
made express references to the fact that consular access obligations should not be capable
ofmaking domestic law enforcement harder for the receiving State (ILC Yearbook 1961,
volume 1, page 288, paragraph 71, 73, column 2) [Volume 5/Annex 94]:
"71. Mr. ZO UREK, Special Rapporteur, pointed out that paragraph 1 (b) of the article
was also concerned with cases where the authorities of the receiving State might be
unwilling, sa as not ta put accomplices on guard, ta disclose immediately the arrest of a
persan involved in a serious criminal case implicating a whole group of persans (e.g. a
drug trafficking case). The words "without undue delay" were applicable ta such cases
and were Jully justified.
Page 84 of 147
7 3. The CHAIRMAN, speaking as a member of the Commission, said that in the
circumstances mentioned by the Special Rapporteur the authorities of the receiving State
would certain/y not wish ta notifj; the consulate at once, for otherwise the task of the
police would be made far more dif.ficult."
292. Sorne States in fact expressly recognised that receiving States may be authorised to
limita sending State' s freedom to communicate with its arrested nationals. On that
subject, the Government ofDenmark indicated as follows (ILC Yearbook 1961, volume
2, page 62, column 2) [Volume 5/Annex 95]:
"2. Denmark: The Danish Government interprets paragraph 2 as authorizing the
receiving State ta restrict the consul 's jreedom ta converse with the prisoner, if
considerations of national security or relations with foreign Powers or special
considerations render this necessary".
293. Again, the understanding of Denmark as regards limitations upon a sen ding State' s
right to converse with its arrested nationals was stated as follows (ILC Y earbook 1961,
volume 2, page 141, column 2) [Volume 5/Annex 96]:
"Article 6
The Danish Government understands the proviso in paragraph 2 ta mean that it can
authorize the receiving State ta restrict the consul 's jreedom ta converse with the
prisoner when considerations of national security or relations with foreign powers or
special consideration for same might otherwise require it".
294. At the UN Conference on Consular Relations, the Expert (Professor Zourek) was
invited to give an explanation as to why the ILC had included the words "without undue
delay" in its draft ofwhat became Article 36 VCCR 1963.
295. Professor Zourek' s reply confirms that arrests on suspicion of espionage were
potentially to be considered as fundamentally different to arrests for other criminal
activity (Official Records of the United Nations Conference on Consular Relations, vol. I
(summary records of plenary meetings and of meetings of the First and Second
Committees), page 338, paragraphs 8-9) [Volume 5/Annex 97]:
"8. The CHAIRMAN invited Mr. Zourek ta explain why the International Law
Commission had included the words "without undue delay" in its draft, as they had given
rise ta considerable comment at the previous meeting.
9. Mr. ZOUREK (Expert) said that the words had not appeared in the original draft but
had been added ajter long discussions bath in plenary meetings and in the drafting
committee. They were intended ta allow for cases in which the receiving State 's police
mightwish ta held a criminal in custody for a time. For example, if a smuggler was
suspected of controlling a network, the police might wish ta keep his arrest secret until
they had been able ta jind his contacts. Similar measures might be adopted in case of
espionage. The International Law Commission hadfelt that if the provision was ta be
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capable of application and ta be applied, such cases would have ta be taken into account
because they arase in practice". (emphasis added)
296. Pakistan respectfully submits that an examination of the history and the travaux
préparatoires of the VCCR 1963 indicates that cases of espionage were not considered to
be within the scope of the VCCR 1963 and/or that espionage matters or matters of
national security were considered to be capable of constituting a justifiable limitation,
qualification and/or exception to a sending State's freedom to communicate with its
arrested nationals in the receiving State.
Customary International Law at the time of the Vienna Convention on Consular Relations
1963 - State Practice
297. The VCCR 1963 was intended to achieve some consolidation of intemational law on
consular relations. However, it is also clear that the draftsmen understood that there
would be matters pertaining to consular relations that would not be expressly regulated by
the terms of the VCCR 1963. That is why the Preamble to the VCCR 1963 includes the
following statement [Volume 5/Annex 88]:
"Affirming that the rules of customary international law continue ta govern matters not
express/y regulated by the provisions of the present Convention".
298. Two important examples of matters pertaining to consular relations, specifically
consular access, that appear not to be expressly regulated by the provisions of the VCCR
1963 are: (1) asylum; and (2) dual nationality.
299. Thus, India's necessary contention (that the VCCR 1963 "was intended ta be an
exhaustive rubric of consular access", as set out at paragraph 96 of its Memorial) is
patently incorrect.
300. In terms of asylum cases, state practice appears to indicate that there are
circumstances where the authorities have to exercise a degree of judgement in considering
whether a foreign consulate should be informed of the arrest of one of its nationals if the
national in question daims to be a refugee or has applied or intends to apply for asylum.
301. For example, in the United Kingdom, Section 66 of the Police and Criminal Evidence
Act 1984 allows the Home Secretary to issue codes of practice relating to a wide range of
police powers. Issued under that statutory provision, Code of Practice C covers
'Detention, Treatment and Questioning of Persons by Police Officers'. Paragraph 7.2 of
Code of Practice C provides as follows [Volume 5/Annex 98]:
"A detainee who is a citizen of a country with which a bilateral consular convention or
agreement is in force requiring notification of arr est must also be informed that sub ject ta
paragraph 7. 4, notification of their arrest will be sent ta the appropriate High
Commission, Embassy or Consulate as soon as practicable, whether or not they request
if'.
Page 86 of 147
302. Paragraph 7.4 of Code of Practice C provides as follows [Volume 5/Annex 98]:
"Notwithstanding the provisions of consular conventions, if the detainee claims that they
are a refugee or have applied or intend ta apply for asylum, the custody officer must
ensure that UK Visas and Immigration (UKVI) (former/y the UK Border Agency) is
informed as soon as practicable of the claim. UKVI will then determine whether
compliance with relevant international obligations requires notification of the arrest ta
be sent and will inform the custody officer as ta what action police need ta take".
303. Another example is found in Ireland. The Irish Criminal Justice Act 1984 (Treatment
of Persons in Custody in Garda Siochana Stations) Regulations 1987 contain (at
regulation 14(4)) an express qualification on the practice of consular notification as
regards asylum cases [Volume 5/Annex 99]:
"(4) If the member in charge has reasonable grounds for believing that an arrested
persan who is a foreign nationalisa political refugee or is seeking political asylum, a
consular officer shall not be notified of his arr est or given access ta or information about
him except at the express request of the foreign national".
304. Another clear example of a matter not expressly regulated by the terms of the VCCR
1963 is the provision of consular access to individuals with dual nationality.
305. In The Law ofConsular Access: A Documentary Guide (2011), Quigley, Aceves and
Shank state the position (at page 40) as follows [Volume 5/Annex 116.1]:
"A situation may arise that an individual arrested is a national of more than one
state. The VCCR does not address this circumstance but leaves it ta the general
international law on nationality as it affects the capacity of astate ta claim a right of
protection. If the individual is a national of more than one state, but not including the
receiving state, little difficulty arises. It is accepted that any of the states of nationality
may represent the persan.
More complex is the situation in which one of the individual 's states of nationality is
the receiving state, that is, the individualisa national bath of the sending state and
the receiving state. Many sending states do not seek ta provide consular protection in
the se circumstances". ( emphasi s added)
306. The fact that the provision of consular access to individuals with dual nationality is
not addressed by the VCCR 1963 is also reflected in Canada'sManual ofConsular
Instructions which, as cited in The Law of Consular Access: A Documentary Guide
(2011) (at pages 45-46), stated as follows [Volume 5/Annex 116.2]:
Page 87 of 147
"4. 6 Canada
Department of Foreign A.flairs and International Trade, Consular A.flairs Bureau,
Manual ofConsular Instructions, Chapter 2, Protection and Assistance. §2.4.4(6)
Access ta arrested or detained Canadian with dual nationality. The VCCR is silent on
consular access when a dual national is detained or arrested in the country ofother
citizenship. A number of countries (See Annex C) have entered into bilateral
undertakings with Canada which grant some limited protection for Canadian dual
nationals while visiting their country of other citizenship. In countries with which we
do not have such undertakings, if the arrested or detained Canadian is also a citizen
of the country concerned, the local authorities may not recognize a formai right ta
intervene; consular officers may be limited ta making informai representations, which
may require consultations with Headquarters. Scope for effective action may be even
more limited when a permanent resident (landed immigrant) who has not yet become
a Canadian citizen is arrested in the country of nationality".
(emphasis added)
3 07. Further, the US State Department' s Foreign Aff airs Manual' s treatment of consular
access to dual nationals confirms the understanding of the VCCR 1963 [Volume 6/Annex
136]:
"7 FAM 416.3 Dual Nationality
Providing consular protection ta dual nationals sometimes poses complex problems
because of the conflicting laws and regulations of the United States and other
countries. Consular officers are required ta open a case, file an arrest report and
update the Department on your efforts ta secure access and visitation.
7 F AM 416. 3-1 Dual National Arrestees In The Non-Us Country Of Nationality
a. The most complex problems regarding provision of protective services ta dual
nationals arise when the holder of dual nationality experiences difficulties with the
law in his/her other (non-US.) country of nationality. While consular of/icers do not
usuallv have a right ta consular access ta a dual national present in one of his or her
countries of nationality. attempts should still be made ta seek consular access on a
courtesv basis {rom the hast government.
b. See page fourteen of the Consular Notification and Access Manual for information
on dual nationals detained in the United States and Department of State instructions
ta law enforcement with respect ta them.
7 F AM 416. 3-2 Dual National Arrestees In A Third Country
Page 88 of 147
A dual national traveling in a third country on a US. passport is generally entitled ta
the full range of consular services related ta arrest, unless this is not permitted by the
hast country". ( emphasis added)
308. In South Africa, the' Arrested Abroad' page under the 'Consular Information' section
of the web site of the Department oflnternational Relations & Cooperation provides as
follows [Volume 6/Annex 137/page 3]:
"Dual nationals arrested/detained in the country of their other nationality will not
receive assistance from South African Consular Representatives. If a dual national is
arrested/detained in another country, ofwhich he/she is nota national, and he/she did
not travel on a South African passport but on the passport of his/her second
nationality, the dual national must contact the consular representative of the country
on which passport he/she travelled'.
3 09. The provision of consular access to dual national s i s therefore, in Pakistan' s respectful
submission, another clear example of a matter that is not expressly regulated by the terms
of the VCCR 1963, with the consequence that it is a matter governed by the rules of
customary international law.
310. Thus, there are plainly certain matters considered by States to fall outside of the ambit
of the consular access obligations contained in the VCCR 1963.
311. In this regard, Pakistan submits that there is no evidence or suggestion in state
practice or academic writing that Customary International Law principles support the
contention that an individual arrested who evidences from his own conduct and materials
in his possession a prima facie case of espionage is entitled to consular access pursuant to
Article 36(1 )(b) VCCR 1963.
312. In 1933, President Roosevelt and the USSR Foreign Affairs Commissar Maxim
Litvinov exchanged letters on the subj ect of consular access in the course of negotiations
over the terms on which the United States of America would give diplomatie recognition
to the USSR. On 16 November 1933, Commissar Litvinov stated that the USSR would
grant a number ofrights to US nationals on the most-favoured-nation principle. An
agreement between the USSR and Germany signed in 1925 provided for notification to a
consul "as soon as possible" after the arrest of a national and recited that requests by a
consul to visit that national would be granted "without delay". By his reply on the same
day, President Roosevelt stated: "We shall expect that the nearest American diplomatie or
consular officer shall be notified immediately of any arrest or detention of an American
national, and that he shall prompt/y be ajforded the opportunity ta communicate and
converse with such national" [Volume 7/Annex 145].
313. Notwithstanding the Roosevelt-Litvinov agreement, it is clear that during the socalled
Cold War between the United States of America and the Union of Soviet Socialist
Page 89 of 147
Republics, the two States frequently clashed on the issue of access to detained nationals,
including those accused of espionage.
314. It is apparent from numerous historie and modern examples of espionage cases that
States often operated on the footing that they were not entitled or were not going to be
able to gain access to their espionage agents once they had been captured and/or their
cover compromised. Information about espionage agents is often, naturally, zealously
guarded by States. In the Cold War era, it was common practice for espionage agents to
be despatched abroad as members of diplomatie missions. Espionage agents therefore
often had diplomatie immunity and could not be arrested. If they were captured or
discovered, such espionage agents were often declared persona non grata and ordered to
leave the country. On occasion, however, espionage agents operated as so-called
"Illegals" (i.e. entering and living in a country illegally and establishing a convincing
identity so as not to amuse suspicion whilst carrying out espionage activities). Sometimes
captured spi es were returned to their home States as part of an exchange.
315. For example:
315.1. On 12 December 1938, Mihail Gorin, a USSR citizen and chief of the Intourist
office in Los Angeles, was detained by the FBI on suspicion of espionage. He was
held for 8 hours at the offices of the US Justice Department before being formally
arrested. Although he was allowed to telephone the Soviet embassy, he was not
permitted to speak in Russian during the telephone call (presumably to ensure that no
sensitive material gleaned from his espionage activities could be communicated to
his sending State representatives). Upon being informed by the US State Department
that access to the accused would only be available on the basis of the RooseveltLitvinov
agreement ( of which the USSR representative appeared to be unaware) the
USSR requested consular access. Although the Soviet vice-consul was permitted to
visit the accused, the US State Department insisted that a US Naval Intelligence
officer who spoke Russian should be present in the room during the meeting
[Volume 7 /Annex 146];
315 .2. In 1949, Judith Coplon, a US national, was arrested along with her MGB
handler Valentin Gubitchev. Both stood trial together. Valentin Gubitchev was
convicted, sentenced and deported. There is no evidence that the USSR ever sought
consular access to Valentin Gubitchev [Volume 7/Annex 147];
315.3. In 1957, Colonel Rudolph Ivanovich Abel (alias William Fisher), one of the
most well-documented examples of an "Illegal", was confronted by FBI agents in his
apartment in New York and arrested by officers of the Immigration and
Naturalization Service. Colonel Abel was indicted in the US Federal Court in
October 1957. In November 1957, Colonel Abel was sentenced to 30 years'
imprisonment on espionage-related charges. There is no suggestion that the USSR
ever sought consular access to Colonel Abel - the fact that his defence counsel for
Page 90 of 147
his trial was chosen for him by the Brooklyn Bar Association would point away from
such a suggestion. On 10 February 1962, Colonel Abel was exchanged for Gary
Powers [Volume 7 /Annex 148];
315.4. On 1 May 1960, a U-2 spy plane piloted by US national Gary Powers was shot
down over USSR airspace. Gary Powers was captured, convicted of espionage and
sentenced to 3 years' imprisonment plus 7 years' hard labour. As explained below,
the USSR refused to allow the United States of America access to Gary Powers for
the entire 21 months he was held prisoner. As explained above, on 10 F ebruary 1962,
Gary Powers was exchanged for Colonel Rudolph Abel [Volume 7/Annex 149];
315.5. In 1960, Mark Kaminsky, a US national, was arrested in the Soviet Union and
charged with collecting restricted information. The US Department of State had
information suggesting that he had been arrested and made inquiries of the Soviet
Foreign Ministry, but to no avail. Mark Kaminsky was under arrest, and the case was
in the investigation stage. He was then put on trial before a Military Court, convicted
of espionage and sentenced to 7 years in prison, but the sentence was immediately
commuted and he was released. In an interview dated 18 October 1960, Mark
Kaminsky is reported to have said that he was "very happy ta talk ta an American
again" - indicating that he had not had access to any US consulat any point during
his detention [Volume 7/Annex 150];
Academic commentary
316. The leading academic authority on consular law and relations referred to previously
herein is that ofLuke T. Lee & John B. Quigley on Consular Law and Relations. The first
edition was published in 1961 - shortly before the drafting and promulgation of the
VCCR 1963 - and is, therefore, an important source for the understanding ofwhat the
rules of customary international law were in 1963 that, accordingly, continue to govern
matters not expressly regulated in the VCCR 1963 itself.
317. By 1961, the State practice on consular access in espionage cases had led Lee &
Quigley to the clear conclusion (at page 125) [Volume 5/ Annex 112.1] that:
"Afrequent exception ta the consular right ta protect nationals and visit them in prison is
the case of spies".
318. Indeed, it seems that the same understanding was also, at the same time, held by a
senior adviser to the Government oflndia, as can be seen from the following statement by
Biswanath Sen (Honorary Legal Adviser to India' s Ministry of External Aff airs from
1954 to 1964) in his A Diplomat 's Handbook of International Law and Practice
(published in 1965) (at page 233) [Volume 5/Annex 117]:
Page 91 of 147
"Afrequent exception ta the consular rights ta protect nationals and visit them in prison
is the case of persans who are held on charge of espionage as evidenced by the practice
of states".
319. Lee & Quigley went on to describe (at page 125) [Volume 5/Annex 112.1] how
States, in the time before the VCCR 1963, were typically extremely reticent to provide
consular access to espionage agents or, if it were granted, very strict limits were imposed
upon the grant of consular access:
"When Robert A. Vogeler, Israel Jacobson and Edgar Sanders allegedly confessed ta
espionage activities charged by the Hungarian authorities, they were held in prison
incommunicado. In the case of the Associated Press Correspondent, William N Oatis,
who was also charged with spying, the Czechoslovak authorities did not permit any
United States officiais ta visit him until ajter he had spent twelve months in prison".
320. In the footnotes on page 125 [Volume 5/Annex 112.1], Lee & Quigley described
how, in the case of William N. Oatis, the US Vice-Consul was permitted to observe the
trial proceedings but only from a distance of 100 feet.
321. Again, in the footnotes on page 125 [Volume 5/Annex 112.1], Lee & Quigley
described how, in some of the most well publicised espionage cases of the Cold War era,
conceming the U-2 and RB-47 incidents, the USA "repeatedly sought permission ta
interview the pilots who allegedly confessed ta aerial reconnaissance over the Soviet
territory ... Permission was not granted, despite the 1933 Soviet assurance concerning
the consular right ta be notified of the arrest of a national within 3 days in large centres
and 7 days in remote areas as well as the right ta visit such national "without delay "".
322. Subsequently, the reluctance of States to provide consular access to espionage agents
has been maintained, up to and beyond the entry into force of the VCCR 1963:
322.1. In 1963, Professor Frederick C. Barghoom, a US national and a professorat
Yale University, was arrested on charges of espionage in Moscow and taken to
Lubyanka prison where he was held incommunicado for 16 days. It is reported that
US diplomats protested once they leamed ofProfessorBarghoom's detention.
Professor Barghoom was released after the personal intervention of President
Kennedy with the govemment of the USSR [Volume 7/Annex 151]. At a hearing of
the US Senate on 16 March 1967, US Senator Clifford P. Hansen placed before the
US Senate a letter sent to him from the US State Department on 9 March 1967,
which contained the following [Volume 7/Annex 151/page 7041]:
"Soviet practice in dealingwith American citizens has varied We were never
permitted access ta Pro/essor Barghoorn prior ta his expulsion from the
Soviet Union. Likewise we were never granted access ta Gary Powers in the
21 months he was held in }ail or ta Lieutenants McKone and Olmstead ajter
their RB-47 was shot down over international waters. On the other hand,
Page 92 of 147
322.2.
since this Convention was signed in 1964 we have been granted access ta each
American who has been heid more than a few days. Thus Soviet practice
appears ta have improved since the Consuiar Convention was negotiated, but
in none of these cases has the notification or access been as prompt and as
frequent as the treaty provides";
In January 1982, Hanson Huang, a Chinese-American lawyer, was detained in
Beijing and was sentenced to 15 years' imprisonment on charges of espionage. US
Embassy officials apparently had "great difficuity in gaining consuiar access" to Mr.
Huang [Volume 7/Annex 152];
322.3. In 1995, Harry Wu, a naturalised US citizen, was arrested in China on charges
of espionage. The arrest and the "Chinese refusai ta allow access ta him by US.
consuiar officiais" sparked protests in the United States of America. In August 1995,
a closed trial was held in central China whereupon he was convicted and sentenced to
14 years' imprisonment before being expelled from China [Volume 7/Annex 153];
322.4. On 5 July 2010, it was reported that an American geologist known as Xue
Feng had been convicted in China and given an eight year prison sentence on charges
of illegally obtaining state secrets related to the Chinese oil industry. It is apparent
from the report that Mr. Xue' s case was discussed at a meeting between President
Obama and the Chinese Government and that the Chinese Government had "months
earlier" denied US officials permission to attend Mr. Xue' s court proceedings.
Despite the presence of a bilateral consular access convention providing for a 4-day
notification period, consular accessit seems was not provided for "severai
weeks"/"thirty-two days" [Volume 7/Annex 154];
322.5. On 26 January 2015, Yevgeny Buryakov, a Russian national, was arrested by
US federal authorities. It was subsequently reported that US federal prosecutors had
charged three Russian nationals with spying on the United States of America on
behalf of the Russian Government. Mr. Buryakov, alleged to have posed as an
employee of a Russian bank in New York and to have collected intelligence on US
sanctions against Russian banks, was apparently held without bail. Igor Sporyshev
and Victor Podobnyy, alleged to be Mr. Buryakov' s handlers, held diplomatie
immunity and they left the country without being arrested. A spokesperson for the
Russian Foreign Ministry was quoted as saying: "We insist on ... immediate consuiar
access ta Yevgeny Buryakov, the ri garous observance of the rights of this Russian
citizen and his reiease". However, there is no indication that consular access was in
fact provided [Volume 7/Annex 155];
322.6. In March 2015, Phan Phan-Gillis, a US national, was arrested at the Macau-
China border and charged in mainland China with having tried to recruit spi es in the
1990s. Reports indicate that consular access was not provided to Ms. Phan-Gillis
until the July of2015 following her arrest [Volume 7/Annex 156].
Page 93 of 147
323. Pakistan submits that there is no evidence, let alone conclusive evidence, or any
suggestion in either the travaux préparatoires of the VCCR 1963 or in state practice, that
customary international law principles support the contention that an individual arrested
who evidences from his own conduct and materials in his possession a primafacie case of
espionage is entitled to consular access pursuant to Article 36(l)(b) VCCR 1963.
324. Indeed, the fact that the activity of espionage is considered by States to be particularly
pemicious is reflected in the context of spi es/saboteurs captured in wartime. Article 5 of
Part I (General Provisions) of the Convention Relative to the Protection of Civilian
Persans in Time ofWar (12 August 1949) provides as follows [Volume 5/Annex 100]:
"Art. 5 Where in the territory of a Party ta the conflict, the latter is satisfied that an
individual protected persan is definitely suspected of or engaged in activities hostile ta
the security of the State, such individual persan shall not be entitled ta claim such rights
and privileges under the present Convention as would, if exercised in the favour of such
individual persan, be prejudicial ta the security of such State.
Where in occupied territory an individual protected persan is detained as a spy or
saboteur, or as a persan under definite suspicion of activity hostile ta the security of the
Occupying Power, such persan shall, in those cases where absolute military security sa
requires, be regarded as having forfeited rights of communication under the present
Convention.
In each case, such persans shall nevertheless be treatedwith humanity and, in case of
trial, shall not be deprived of the rights of fair and regular trial prescribed by the present
Convention. They shall also be granted the full rights and privileges of a protected persan
under the present Convention at the earliest date consistent with the security of the State
or Occupying Power, as the case may be".
325. Pakistan respectfully invites the Court to dismiss India's daim as advanced in its
Application and its Memorial, on the basis that the VCCR 1963 was not intended to be
engaged in cases such as those of Commander Jadhav, namely in the case of an individual
who from his conduct and materials in his possession revealed a primafacie case of
State-sponsored espionage.
Page 94 of 147
VI. FURTHER, OR IN THE ALTERNATIVE, IN THE EVENT
THAT THE VIENNA CONVENTION ON CONSULAR
RELATIONS 1963 IS ENGAGED, PAKISTANHAS
COMMITTED NO BREACH IN THE INSTANT CASE
326. Further, or in the alternative, in the event that the Court considers that the VCCR
1963 was engaged, then Pakistan respectfully submits that no breach was committed in
the instant case.
327. The principle that consular functions must only be exercised in a manner or utilised
for a purpose that is not contrary to the domestic laws of the receiving State is
fundamental for the proper working of the whole scheme of consular relations.
328. This was apparent long before the VCCR 1963 was drafted and promulgated. In 1916,
Baron Heyking stated (at page 1) in his discussion of consular duties in general [Volume
5/Annex 114.1]:
"Russian Consuls must conform, in the exercise of their official functions, ta the laws of
the Russian Empire, ta the Circulars of the Ministry of Foreign A.flairs, ta the instructions
of the Legations, Embassies, or Consulates ta which they are subordinate and ta those of
the Ministries of Finance, Trade and Commerce, and Marine.
On the other hand, Consular Officers must also be guided by the law and usage of the
district in which they exercise their office. If the local government has not granted the
Consul special rights and privileges by agreement between itself and the State whose
agent the Consul is, he is subject, in all his official actions, ta the laws of the country in
which he resides, and may not, therefore, place himself in conflict with them".
Page 95 of 147
(A) VIENNA CONVENTION ON CONSULAR RELATIONS 1963 - SPECIFIC
PROVISIONS
329. Article 5 VCCR 1963 (Consular functions) provides as follows [Volume 5/Annex
88/page 5-6]:
"Consular fonctions consist in:
(a) protecting in the receiving State the interests of the sending State and of its nationals,
bath individuals and bodies corporate, within the limits permitted by international law;
(i) subiect ta the practices and procedures obtaining in the receiving State, representing
or arranging appropriate representation for nationals of the sending State be fore the
tribunals and other authorities of the receiving State, for the purpose of obtaining, in
accordance with the laws and regulations of the receiving State, provisional measures for
the preservation of the rights and interests of the se nationals, where, because of absence
or any other reason, such nationals are unable at the proper time ta assume the defence
of their rights and interests;
(m) performing any other fonctions entrusted ta a consular post by the sending State
which are not prohibited by the laws and regulations of the receiving State or ta which no
ob;ection is taken by the receiving State or which are refàred ta in the international
agreements in (Orce between the sending State and the receiving State". ( emphasis added)
330. Article 5(a) VCCR 1963 makes expressly clear the fact that consular functions may
only be exercised within the limits permitted by international law. Pakistan respectfully
submits that it simply cannot be the case that consular access may be used by the sending
State in order to undermine the sovereignty and/or the integrity of the receiving State.
331. Article 5(i) VCCR 1963 makes clear that the access to justice aspect of the consular
functions under Article 5 VCCR 1963 are subject to the legal practices and legal
procedures applicable under the domestic law of the receiving State. Thus, and in any
event, in the instant case, the exercise oflndia' s consular function in representing or
arranging representation for Commander Jadhav is subject to the applicable legal
framework in the domestic law of Pakistan and the practices and procedures of the
FGCM.
332. Article 5(m) VCCR 1963 establishes that consular access (or, indeed, any other
consular function) cannot involve doing anything that is prohibited by the domestic law
of the receiving State, or to which no objection has been made by the receiving State.
Thus, it cannot be said under any circumstances that consular access (as a consular
function) is an untrammelled and unqualified right in all situations.
Page 96 of 147
333. Article 36 VCCR 1963 provides as follows [Volume 5/Annex 88/page 17-18]:
"1. With a view ta facilitating the exercise of consular functions relating ta nationals of
the sending State:
(a) consular officers shall be free ta communicate with nationals of the sending State and
ta have access ta the m. Nationals of the sending State shall have the same freedom with
respect ta communication with and access ta consular officers of the sending State;
(b) if he sa requests. the competent authorities of the receiving State shall, without delay,
inform the consular post of the sending State if, within its consular district, a national of
that State is arrested or committed ta prison or ta custody pending trial or is detained in
any other manner. Any communication addressed ta the consular post by the persan
arrested, in prison, custody or detention shall also be forwarded by the said authorities
without delay. The said authorities shall inform the persan concerned without delay of his
rights under this sub-paragraph;
(c) consular officers shall have the right ta visita national of the sending State who is in
prison, custody or detention, ta converse and correspond with him and ta arrange for his
le gal representation. They shall also have the right ta visit any national of the sending
State who is in prison, custody or detention in their district in pursuance of a judgement.
Nevertheless. consular of/icers shall refrain {rom taking action on behalfofa national
who is in prison. custodv or detention ifhe express/y opposes such action.
2. The rights referred ta in paragraph 1 of this Article shall be exercised in conformity
with the laws and regulations of the receiving State. subject ta the proviso, however, that
the said laws and regulations must enable full effect ta be given ta the purposes for which
the rights accorded under this Article are intended'. ( emphasis added)
334. Pakistan recognises that the three sub-paragraphs of Article 36(1) VCCR 1963 are
interrelated (in contrast to India' s assertion, at paragraph 96 of its Memorial, that "The
Vienna Convention was intended ta be an exhaustive rubric of consular access").
335. Article 36(l)(a) VCCR 1963 evidences a general freedom of the sending State to
communicate with its nationals in the receiving State. It is separate from Article 36(l)(b)
VCCR 1963 which specifically relates to custody. Furthermore, Article 36(l)(b) VCCR
1963 begins with the condition "if he sa requests" (i.e. the national of the sending State in
custody in the receiving State).
Immediate access is not required
336. As an insight into its (flawed) approach, India contends that the fact that Commander
Jadhav was questioned about his unlawful activities in Pakistan prior to any granting of
consular access entails that all steps taken in respect of the investigation into his activities
Page 97 of 147
and his prosecution for those activities are invalidated, with the result that the only
appropriate remedy must necessarily be the annulment of all of those steps.
337. However, this is an approach that the Court itselfhas refused to adopt in previous
cases, on the basis that it found no reflection in either in the express terms or in the
travaux préparatoires of the VCCR 1963.
338. In Avena and Other Mexican Nationals (Mexico v United States of America)
(Judgment, I.C.J. Reports 2004, page 12), the Court held (at paragraph 87) [Volume
3/Annex 67] as follows:
"87. The Court thusfinds that "without delay" is not necessarily ta be interpreted as
"immediately" upon arrest. It further observes that during the Conference debates on
this term, no de le gate made any connection with the issue of interrogation. The Court
considers that the provision in Article 36, paragraph 1 (b), that the receiving State
authorities "shall inform the persan concerned without delay of his rights" cannot be
interpreted ta signify that the provision of such information must necessarily precede
any interrogation, sa that the commencement of interrogation be fore the information
is given would be a breach of Article 36".
339. In light of the ab ove, Pakistan respectfully submits that, to the extent that India seeks
to contend that Pakistan' s questioning of Commander Jadhav without his having consular
access was by itself an act contrary to Article 36(l)(b) VCCR 1963, it is apparent that
such an argument is contrary to the Court' s previous case law.
340. Furthermore, as Article 36(2) VCCR 1963 makes clear, the rights under Articles
36(l)(a)-(c) VCCR 1963 must be exercised in a manner that is in accordance with the
domestic law of the receiving State (i.e. Pakistan in this case).
341. Of course, the domestic law of the receiving State must "enable full effect ta be given
ta the purposesfor which the rights accorded under this Article [36] are intended'. To
that end, Pakistan and India entered into a bilateral convention on consular access in 2008
(discussed further in Section VI(B) below).
342. Article 55(1) VCCR 1963 (Respect for the laws and regulations of the receiving
State) provides as follows [Volume 5/Annex 88/page 25]:
"1. Without prejudice ta their privileges and immunities, it is the duty of all persans
enjoying such privileges and immunities ta respect the laws and regulations of the
receiving State. They also have a duty not ta interfere in the internai affairs of that State".
343. Sir Arthur Watts QC's authoritative commentary on the ILC's draft of Article 55(1) in
The International Law Commission 1949-1998 (at volume 1, page 298) is provided below
in full [Volume 5/Annex 101]:
Page 98 of 147
"(1) Paragraph 1 of this article lays down the fundamental rule that it is the duty of any
persan who enjoys consular privileges and immunities ta respect the laws and regulations
of their receiving State, save in sa far as he is exempted from their application by an
express provision of this draft or of some other relevant international agreement. Thus,
for example, the laws imposing a persona! contribution, and the social security laws, are
not applicable ta members of the consulate who are not nationals of the receiving State.
(2) The clause in the second sentence of paragraph 1 which prohibits interference in the
internai a.flairs of the receiving State should not be interpreted as preventing members of
the consulate from making representations, within the scope of their fonctions, for the
purpose of protecting and defending the interests of their country or of its nationals, in
conformity with international law".
344. Pakistan reiterates that the authoritative commentary to the ILC' s draft of Article
5 5( 1) clearly demonstrates that the sending State' s consular functi on of defending the
interests of its nationals in the receiving State must be exercised in a manner that is in
conformity with the laws of the receiving State.
345. The text of Article 55(1) VCCR 1963 provides that consular officials must not only
have respect for the domestic laws and regulations of the receiving State (i.e. Pakistan)
but are also under a separate express duty not to interfere in Pakistan' s internal affairs.
Pakistan respectfully submits that Article 55(1) VCCR 1963 is cast in terms reflecting the
principle established by Article 2(7) of the Charter of the United Nations 1945 [Volume
5/Annex 102]. The principle of non-interference in the domestic affairs of a foreign
sovereign State is, therefore, in Pakistan' s submission, an unsurprising fundamental
qualification on the rights stipulated in the VCCR 1963 (including Articles 36(l)(a)-(c)
VCCR 1963).
Page 99 of 147
(B) THE 2008 BILATERAL AGREEMENT BETWEEN INDIA AND PAKISTAN
Background
346. As mentioned above, on 21 May 2008, India and Pakistan entered into a Bilateral
Agreement on Consular Access ("the 2008 Agreement") [Volume 7/Annex 161]. India
seems to have accepted this was highly relevant and engaged in this context (as at 14
April 2017) but since then has sought to extricate itself therefrom by stating the 2008
Agreement was not "rel[ied} upon" [Volume 1/Annex 5.1/page 34/para 66(a)],
"irrelevant" [Volume 1/Annex 5.1/page 17/para 15 and page 34/para 66] - oflate,
India asserts (as it must) that its own detailed and extensive work leading to the 2008
Agreement should simply be ignored - none of this will do.
347. However, before considering the specific provisions of the 2008 Agreement, in order
to understand the operation of this Agreement and its interplay with the VCCR 1963, it is
necessary to consider the background to both the 2008 Agreement and the VCCR 1963 so
far as it relates to national security and espionage.
348. Asto the VCCR 1963, state practice reveals that espionage was an exception to the
provisions on consular access reflected in the VCCR 1963, albeit a sensitive exception
that was not referred to openly. As discussed earlier, in the Cold War era, it was common
practice for espionage agents to be despatched abroad as members of diplomatie
missions, and therefore if they were suspected or caught by the host state, such
individuals would be clothed with a cloak of diplomatie protection and therefore would
not face criminal proceedings. Rather, if they were captured or discovered, such agents
were often declared persona non grata and ordered to leave the country. States were
acutely conscious of the exposure to criminal proceedings and serious penalties faced by
nationals engaged in espionage, along with the inconsistency of such conduct with the
principle of friendly relations. Hence elaborate subterfuge (and/or the blanket of
diplomatie immunity) were (and are) deployed in this context.
349. Examples, both pre- and post- the VCCR 1963, include:
349.1. In January 1953, Yuri Vasilyevich Novikov, a former Red Army officer and
USSR diplomat, was suspected of conspiring to run an espionage ring with US
nationals in Austria, was declared persona non grata and expelled [Volume 7/Annex
157];
349.2. In 1999, Stanislav Borisovic Gusev, a secretary at the Russian Embassy in the
United States of America was arrested by the FBI on suspicion of having placed a
listening device inside the US State Department. The US Undersecretary of State
declared Mr. Gusev to be persona non grata and ordered him to leave the country
within 10 days [Volume 7/Annex 158];
Page 100 of 147
349.3. In May 2013, Ryan Fogle, a US diplomat, was arrested in Moscow on the
grounds that he was attempting to carry out recruitment activities on behalf of the
CIA. He was declared persona non grata and expelled [Volume 7/Annex 159].
The unique India-Pakistan context
350. Historically, the relationship between India and Pakistan has been one of the most
tense globally. Since Pakistan obtained independence in 1947, there have been at least
four international armed conflicts between the two countries, and numerous incidents -
both reported and unreported- of mutual allegations concerning terrorism and espionage.
3 51. It is against this background that India itself proposed the conclusion of a bilateral
treaty on consular access between the two countries. India has nevertheless regrettably
avoided explaining the context, purpose and meaning of the 2008 Agreement.
352. The paragraphs of the Counter Memorial below are based on contemporaneous
communications between India and Pakistan which provide powerful explanation for the
2008 Agreement.
3 53. The Draft Agreement on Consular Access was proposed by the Indian side during a
visit of the Indian External Affairs Minister to Pakistan (2-5 October 2005), with India
suggesting amendments to the existing agreement on consular access ( dated 1982). As
can be seen, this draft was very brief and contained no reference to "arrest, detention or
sentence made on political or security grounds" [Volume 7/Annex 160/pages 1-2]. The
full text of the proposed draft agreement was:
"DRAFT AGREEMENTONCONSULARACCESS
The Government of India and the Government of Pakistan, desirous of furthering the
objective of human treatment ta nationals of either country arrested, detained or
imprisoned in the other, have agreed ta reciprocal consular facilities as follows:
i) Each Government will maintain a comprehensive list of the nationals of the other
country under its arrest, detention or imprisonment. The lists shall be exchanged as soon
as possible on pt January and pt July every year.
ii) Immediate notification of any arrest/detention/imprisonment of any persan of the
other country shall be provided ta the respective High Commission.
iii) Each Government shall give consular access ta all nationals of the other country
under arrest, detention or imprisonment within three months of the date of
arrest/detention/sentence.
Page 101 of 147
iv) Bath the Governments agree ta release and repatriate persans who are under their
arrest, detention or imprisonment except those who have either been convicted or are
under trial or have not yet completed their sentences ajter conviction. Such persans will
be released and repatriated by the respective Governments within one month of
confirmation of their National status. Others will be repatriated ajter similar
confirmation of nationality and completion of their sentences."
354. With this draft agreement, India also provided a mark-up of the original agreement
dated 2 November 1982. This draft agreement had previously contained a reference to
"political or security reasons/offences", which was struck out and replaced as set out
below [Volume 7/Annex 160/page 3-4]:
"iii) Eaeh GovernmeHt shall giveH eoHsular aeeess OH a reeif)roeal Basis te HatioHals of
oHe eouHtry uHcler arrest, cleteHtioH or imf)risoHmeHt ÏH the other eouHtry, flFO'ticlecl they
are Hot af)f)reheHclecl for f)Olitieal or seeurity reasoHs/offeHees. Request for sueh aeeess
aHcl the terms thereof shall Be eoHsiclerecl OH the merits of eaeh ease By the GovernmeHt
arrestiHg the f)ersoH or holcliHg the cleteHUes/f)risoHers aHcl the cleeisioH OH sueh requests
shall Be eoHveyecl te the other GovernmeHt withiH four v1eeks from the date ofreeeif)t of
the request. Bach Government shall give consular access to all nationals of the other
country under arrest, detention or imprisonment within three months of the date of
arrestldetentionlsentence."
355. The approach oflndia to this specific issue clearly manifests acute recognition and
understanding of the significance of the language being suggested and its practical
implications.
356. Thus for India, through its Counsel, Harish Salve, to have asserted, inter alia, that the
2008 Agreement was irrelevant/not relied on, albeit "Some of the provisions of this
Agreement reinforce the obligations of the Vienna Convention" [Volume 1/Annex
5.1/page 34/para. 66(a)] is disingenuous cherry-picking (at best).
3 5 7. The draft agreement was forwarded to Pakistan' s Mini stry of the Interi or on 6
October 2005 for views and comments [Volume 7/Annex 160/page 1], which were
provided on 15 April 2006 [Volume 7/Annex 160/pages 5-6] and subsequently
forwarded to the Pakistani High Commission in New Delhi on 2 May 2006 before
forwarding to India [Volume 7/Annex 160/page 7].
358. On 21 June 2006, the Pakistani High Commission in New Delhi stated that the Draft
Agreement on Consular Affairs had been forwarded to India's Ministry ofExternal
Affairs [Volume 7/Annex 160/pages 8-11].
359. On 3 July 2007, the draft agreement was again forwarded by Pakistan's Ministry of
Foreign Affairs to Pakistan' s High Commission in New Delhi on their request [Volume
7/Annex 160/pages 18-19]. The draft agreement was to be discussed during the Interior
Page 102 of 147
Secretary Level Talks whi ch took place in New Delhi on 3 -4 Jul y 2007. Minutes of the
meeting (which were recorded by Riffat Masood (Counsellor (Political)), and sent by the
High Commission for Pakistan, New Delhi, to the Director General (SA), Ministry of
Foreign Affairs, Islamabad, on 10 July 2007) state that progress was made on the text of
the draft agreement [Volume 7/Annex 160/pages 25-30], and a Joint Statement released
to the media indicated that the text of the draft agreement was finalized by separate
working groups [Volume 7/Annex 160/pages 20-22].
360. That Joint Statement provided, at relevant part:
"3. Bath sides strongly condemned all acts of terrorism and underlined the imperative
needfor effective and sustained measures against terrorist activities.
4. The two sides recognized that terrorists and criminals in either country need ta be
given swift and effective punishment.
9. Separate working groups discussed in detail the drafts of the revised Visa and
Consular Access Agreements aimed at liberalizing and making existing provisions more
effective. The text of the Agreement on Consular Access has been finalised".
[Volume 7/Annex 160/pages 20-22]
361. Asto the 2008 Agreement, the relevant section of the minutes states:
"7. The Indian Home Secretary suggested that three sub-groups be formed ta discuss the
following issue threadbare:-
ii) The agreements on consular access and visas. The release of fishermen and civilian
prisoners.
1 O. The three sub-groups worked throughout the rest of the day on the above tapies.
While there was considerable progress in the first and fast sub-groups dealing with
fishermanlprisoner issues, visa and consular access agreements and CBI-FIA
cooperation, there was no forward movement in the MoU on drugs trafficking, which was
not signed during this meeting."
[Volume 7/Annex 160/pages 29-30]
362. On 4 July 2007, the then Director General (South Asia) of Pakistan' s Ministry of
Foreign Affairs, Mr Aizaz Ahmad Chaudhry, communicated to Pakistan' s Ministry of
Interior that negotiations on the draft agreement were led by him on the Pakistan side and
the finalised text of the draft agreement was forwarded to the Ministry oflnterior
[Volume 7/Annex 160/pages 23-24]. On 20 July 2007, the Ministry oflnterior approved
the draft agreement [Volume 7/Annex 160/page 31].
Page 103 of 147
363. On 10 August 2007, Pakistan' s Ministry of Foreign Affairs issued a Note Verbale to
the Indian High Commission in Islamabad conveying the readiness of Pakistan to sign the
finali sed draft [Vol urne 7 / Annex 160/pages 32-33].
364. On 3 March 2008, the Indian High Commission in Islamabad conveyed concurrence
to the approved draft [Volume 7/Annex 160/page 34]. On 19 May 2008, Pakistan's
Ministry of Law & Justice conveyed their acceptance of the draft agreement [Volume
7 /Annex 160/page 35].
365. The 2008 Agreement was signed on 21 May 2008 afterthe Foreign Minister level
review meeting held in Islamabad [Volume 7/Annex 160/pages 36-37].
366. The full text of the 2008 Agreement provides:
"Agreement on Consular Access
The Government of India and the Government of Pakistan, desirous of jurthering the
objective of humane treatment of nationals of either country arrested, detained or
imprisoned in the other country, have agreed ta reciprocal consular facilities as follows:
(i) Each Government shall maintain a comprehensive list of the nationals of the other
country under its arrest, detention or imprisonment. The lists shall be exchanged on 1 st
January and pt July each year.
(ii) Immediate notification of any arrest, detention or imprisonment of any persan of the
other country shall be provided ta the respective High Commission.
(iii) Each Government undertakes ta expeditiously inform the other of the sentences
awarded ta the convicted nationals of the other country.
(iv) Each Government shall provide consular access within three months ta nationals of
one country under arrest, detention or imprisonment in the other country.
(v) Bath Governments agree ta release and repatriate persans within one mon th of
confirmation of their national status and completion of sentences.
(vi) In case of arrest, detention or sentence made on political or security grounds, each
side may examine the case on its merits.
(vii) In special cases, which calf for or require compassionate or humanitarian
considerations, each side may exercise its discretion subject ta its laws and regulation ta
allow early release and repatriation of persans.
This agreement shall came into force on the date of its signing."
[Volume 7/Annex 161]
Page 104 of 147
Interplay between the VCCR 1963 and the 2008 Agreement
367. Article 73 of the VCCR 1963 expressly contemplates that States may have already
entered into, or may at some point in future enter into, other bilateral or multilateral
agreements dealing with the issue of consular access, providing [Vol urne 5/ Annex
88/page 31]:
"1. The provisions of the present Convention shall not affect other international
agreements in force as between States Parties ta them.
2. Nothing in the present Convention shall preclude States from concluding international
agreements confirming or supplementing or extending or amplifj;ing the provisions
thereof'.
368. Article 73 VCCR 1963 provides that the VCCR 1963 does not affect other
agreements in force as between States.
369. Pakistan submits that the 2008 Agreement when properly viewed can be seen as
"supplementing" or "amplifj;ing" the provisions of the VCCR 1963 as described in Article
73.
370. The meanings of"supplement" and "amplifj;" as commonly understood (see the
Oxford English Dictionary) are: "A thing added ta something else in order ta complete or
enhance it", and "add detaif' respectively.
371. Pakistan observes that the 2008 Agreement, whether taken in its entirety or only with
reference to Article (vi), amply fulfils such requirements.
372. It is respectfully submitted that India and Pakistan plainly intended the 2008
Agreement to address consular access. They negotiated its terms over a period of nearly
two years. India has simply failed to explain how any aspect of the 2008 Agreement is
inconsistent with Article 73 VCCR 1963, let alone Article (vi) thereof.
373. Furthermore, the 2008 Agreement clearly gives effect to the intended purposes of
Article 36 VCCR 1963, as it manifestly seeks to facilitate "humane treatment of nationals
of either country arrested, detained or imprisoned in the other country". It expressly
provides for "reciprocal consular facilities" [Volume 7 / Annex 161].
374. As the 2008 Agreement was negotiated and signed expressly to deal with the issue of
consular access between India and Pakistan within their specific (at times) somewhat
fraught context, the "national security" considerations relating to consular access
contained in Article (vi) of the 2008 Agreement must be interpreted in the specific
context of the relationship between these two States. Put another way, Article (vi) must be
given some meaning as it was plainly intended to have effect and the 2008 Agreement
appears to have operated for nearly a decade.
Page 105 of 147
The drafting of the 2008 Agreement
375. The revised draft of the 2008 Agreement was finalised during the meeting of the
Pakistan-India Secretary-level talks on Terrorism & Drug Trafficking under the Fourth
round of the Composite dialogue, held in New Delhi on 3-4 July 2007 [Volume 7/Annex
160/pages 25-30].
376. The context in which final negotiations on the agreement took place is significant,
demonstrating that it was tied significantly to terrorism issues (the top two items on the
list oftopics discussed at that meeting being "Terrorist attacks in each other's countries"
and "Infiltration and Cross-border terrorism").
377. Furthermore, the 2008 Agreement must also be read in the context of Articles 30, 31
and 41 of the Vienna Convention on the Law ofTreaties 1969 ("VCLT 1969"), which
provide [Volume 5/Annex 103]:
"Article 30. APPLICATION OF SUCCESSIVE TREATIES RELATING TO THE SAME
SUBJECT-MATTER
1. Sub ject ta Article 10 3 of the Charter of the United Nations, the rights and obligations
of States parties ta successive treaties relating ta the same subject-matter shall be
determined in accordance with the following paragraphs.
2. When a treaty specifies that it is subject ta, or that it is not ta be considered as
incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.
3. When all the parties ta the earlier treaty are parties also ta the later treaty but the
earlier treaty is not terminated or suspended in operation under article 59, the earlier >
treaty applies only ta the extent that its provisions are compatible with those of the later
treaty.
4. When the parties ta the later treaty do not include all the parties ta the earlier one:
(a) As between States parties ta bath treaties the same rule applies as in paragraph 3;
(b) As between a State party ta bath treaties and a State party ta only one of the treaties,
the treaty ta which bath States are parties governs their mutual rights and obligations.
5. Paragraph 4 is without prejudice ta article 41, or ta any question of the termination or
suspension of the ope ration of a treaty under article 60 or ta any question of
responsibility which may arise for a State from the conclusion or application of a treaty
the provisions ofwhich are incompatible with its obligations towards another State under
another treaty.
Page 106 of 147
SECTION 3. INTERPRETATION OF TREATIES
Article 31. GENERAL RULE OF INTERPRETATION
1. A treaty shall be interpreted in goodfaith in accordance with the ordinary meaning ta
be given ta the terms of the treaty in their context and in the light of its objec t and
purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition
ta the text, including its preamble and annexes:
(a) Any agreement relating ta the treaty which was made between all the parties in
connexion with the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connexion with the
conclusion of the treaty and accepted by the other parties as an instrument related ta the
treaty.
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given ta a term if it is established that the parties sa
intended
Article 41. AGREEMENTS TO MODIFY MULTILATERAL TREATIES BETWEEN
CERTAIN OF THE PARTIES ONLY
1. Two or more of the parties ta a multilateral treaty may conclude an agreement ta
modifj; the treaty as between themselves alone if:
(a) The possibility of such a modification is provided for by the treaty; or
(b) The modification in question is not prohibited by the treaty and:
(i) Does not affect the enjoyment by the other parties of their rights under the treaty or
the performance of their obligations;
(ii) Does not relate ta a provision, derogation from which is incompatible with the
effective execution of the abject and purpose of the treaty as a whole.
2. Unless in a case falling under paragraph l(a) the treaty otherwise provides, the parties
in question shall notifj; the other parties of their intention ta conclude the agreement and
of the modification ta the treaty for which it provides".
Page 107 of 147
378. InJudge Shigeru Oda: Liber Amicorum (edited by Nisuke Andao, Edward
McWhinney and Rüdiger Wolfrum) (2002 edition), Chusei Yamada10 states (at page
770), as to Article 73 of VCCR 1963, at relevant part [Volume 5/Annex 118]:
" ... The commentary on then Article 26 (now Article 30) adopted by the ILC cites an
example from paragraph 2 of Article 7 3 of the Vienna Convention of 1963 on Consular
Relations.
"Article 7 3 (2)
Nothing in the present Convention shall preclude States from concluding international
agreements confirming or supplementing or extending or amplifj;ing the provisions
thereof".
The commentary explains that this provision, which recognizes the right ta supplement its
provisions by bilateral agreements, merely confirms the legitimacy of bilateral
agreements which do not derogate from the obligations of the general Convention.
However, the text of Article 30(2) goes far beyond the mere confirmation of the
legitimacy of such bilateral agreements. If applied ta this case, Article 30(2) stipulates
that such bilateral consular agreements prevail over the Vienna Consular Convention".
Registration of the 2008 Agreement
379. On 17 May 2017, the 2008 Agreement was registered with the UN Secretariat in
accordance with Article 102(1) of the Charter of the United Nations [Volume 7/Annex
161].
380. Article 102 of the Charter of the United Nations provides as follows [Volume
5/Annex 104]:
"1 Every treaty and every international agreement entered into by any Member of the
United Nations after the present Charter cames into force shall as soon as possible be
registered with the Secretariat and published by it.
2 No party ta any such treaty or international agreement which has not been registered in
accordance with the provisions of paragraph 1 of this Article may invoke that treaty or
agreement be fore any organ of the United Nations".
3 81. Previously, India contended (in submissions before the Court on its Request for
Provisional Measures) that the fact that the 2008 Agreement was not, at that time,
registered with the UN Secretariat meant that Pakistan could not invoke the 2008
Agreement before the Court in accordance with Article 102(2) of the Charter of the
United Nations. India has also stated (in the oral hearing on 15 May 2017) that the 2008
Agreement was "irrelevant":
10 Former member of the International Law Commission (1992-2009)
Page 108 of 147
381.1. Dr V. D. Sharma, Joint Secretary, Ministry ofExternal Affairs: " .. . the
Bilateral Agreement is irrelevant ta the present proceedings since, it can only
supplement the Vienna Convention" [Volume 1/ Annex 5.1/page 17 /para 15];
381.2. Mr Harish Salve, Counsel for India: "The Agreement on Consular Access
between India and Pakistan is irrelevant for the present proceedings" [Volume
1/Annex 5.1/page 34/para 66]. He further stated that India did not "rely" upon the
2008 Agreement. He did nevertheless observe that "Some of the provisions of this
Agreement reinforce the obligations of the Vienna Convention" [Volume 1/Annex
5.1/page 34/para 66(a)]. Pakistan invites India to explain why Article (vi) is not
relevant.
382. Insofar as India may (unfortunately) seek to rely upon bare technicalities now to row
back from an agreement with Pakistan that has operated to govern very sensitive factual
circumstances such as th ose of the instant case for almost 10 years, Pakistan respectfull y
submits that India' s arguments in respect of the non-registration of the 2008 Agreement
are misconceived.
3 83. As to the regi strati on el ement, the anal ysi s of Professor Kol b in The International
Court of Justice (2013) accurately demonstrates the approach previ ousl y taken by the
Court in this regard (at pages 543-544) [Volume 5/Annex 119]:
"Certain/y, registration is possible at any time, even if it is late, sa that afailure ta
register can be cured in the course of proceedings be fore the ICJ, that is, even ajter the
Court has been seised. The Court has not been very formalistic in this respect. In the
Corfu Channel case (1949), it acceptedjurisdiction on the basis of a special agreement
that had not been registered. In the 19 78 Aegean Sea case (cited above), the Court
accepted the possibility that a joint communiqué could constitute an agreement giving it
jurisdiction, without mentioning the matter of registration. In Qatar and Bahrain (1994),
cited above, Bahrain argued that non-registration for several months showed that Qatar
did not consider the Minutes ta be a legally binding agreement, since otherwise it would
have moved immediately ta have them registered. Faced with that argument, the Court
could not duck the issue. It reajfirmed that such agreements must indeed be registered,
but also that late registration did not have consequences for their validity:
The Court would observe that an agreement or treaty that has not been registered
with the Secretariat of the United Nations may not, according ta the provisions of
Article 102 of the Charter, be invoked before any organ of the United Nations. Nonregistration
or late registration, on the other hand, does not have any consequences
for the actual validity of the agreement, which remains no less binding on the parties.
The Court therefore cannot infer from the fact that Qatar did not apply for
registration of the 1990 Minutes until six months ajter they were signed, that Qatar
considered, in December 1990, that those Minutes did not constitute an international
agreement.
Page 109 of 147
The Court 's reasoning must be taken in its context, that of an argument raised by one
party. The Court reaffirmed the obligation ta register (arisingfrom a practice which is
now generally followed as regards special agreements), declined ta see in late
registration evidence that a State did not consider the instrument ta be a legally binding
one, and emphasised that registration can be effected even though it is out of time. If the
registration needed ta be effected pendente lite, the Court would doubtless apply the
'Mavrommatis rule 'on defects of form: there would be little point in ruling that the
proceedings were invalid and forcing a party ta start a new case after registering the
agreement. In short, the requirement of registration is nota very onerous condition".
Concluding Observations
384. Pakistan respectfully submits that any attempt by India to exclude the 2008
Agreement altogether and/or to downplay to the Court the significance of the 2008
Agreement is misconceived:
384.1. The 2008 Agreement was adopted at India's instigation. Ultimately, the 2008
Agreement (as adopted) was based on a draft created and proposed by India to
govern consular access between India and Pakistan;
384.2. The 2008 Agreement has now been in operation governing consular access
between India and Pakistan for almost a decade. It therefore does not lie in the mouth
oflndia to state to the Court now that the 2008 Agreement has no bearing upon
questions of consular access between these two countries.
385. Therefore, Pakistan respectfully submits:
3 85 .1. that the 2008 Agreement is fully consistent with Article 73 VCCR 1963, and
Articles 31 and 41 VCLT 1969, providing a supplement and/or amplification of
Article 36 VCCR 1963;
3 85 .2. that the 2008 Agreement was intended to govern consular access in cases as
between India and Pakistan;
385.3. that the nature and circumstances of Commander Jadhav' s espionage/terrorism
criminal activities brought his arrest squarely within the national security
qualification contained in Article (vi) of the 2008 Agreement;
385.4. accordingly, Pakistan was entitled to consider consular access to Commander
Jadhav "on the merits" and to consider the question of consular access in the
particular circumstances of this case.
Page 110 of 147
VII. THE RELIEF SOUGHT BY INDIA FROM THE COURT IS
UNA V AILABLE AND/OR INAPPROPRIATE
Introduction
3 86. Without prejudice to any of Pakistan' s submissions above, in any event, the relief
sought by India is not available from this Court and/or it would be inappropriate for the
relief sought by India to be granted by the Court.
3 87. In its Memorial, India (at paragraph 214) seeks ( on behalf of itself) the following in
terms ofrelief:
"FOR THESE REASONS, the submissions of the Government of India, respectfully
request this Court ta adjudge and declare that,
a) Pakistan acted in egregious breach of Article 36 of the Vienna Convention on
Consular Relations, in:
(i) Failing ta inform India, without delay, of the arrest and/or detention of Jadhav,
(ii) Failing ta inform Jadhav ofhis rights under Article 36 of the Vienna Convention on
Consular Relations,
(iii) Declining access ta Jadhav by consular ojficers of India, contrary ta their right ta
visit Jadhav, while under custody, detention or in prison, and ta converse and correspond
with him, or ta arrange for his le gal representation.
And that pursuant ta the foregoing,
(i) Declare that the sentence of the Military Court arrived at, in brazen de.fiance of the
Vienna Convention rights under Article 36, particularly Article 36 paragraph 1 (b), and in
de.fiance of elementary human rights of Jadhav, which are also ta 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;
(ii) Declare that India is entitled ta restitutio in integrum;
(iii) Restrain Pakistan from giving effect ta the sentence or conviction in any manner, and
direct it ta release the Indian National, Jadhav, forthwith, and ta direct Pakistan ta
facilitate his safe passage ta India;
(iv) In the alternative, and if this Court were ta jind that Jadhav is not ta be released, then
restrain Pakistan from giving effect ta the sentence awarded by the Military Court, and
direct it ta take steps ta annul the decision of the military court, as may be available ta it
under the laws in force in Pakistan, and direct a trial under the ordinary law be fore
civilian courts, ajter excluding his confession that was recorded without ajfording
Page 111 of 147
consular access, in strict conformity with the provisions of the !CCP R, with full consular
access and with a right ta India ta arrange for his le gal representation".
388. The key question for the Court in its consideration is, even assuming a breach, what is
the appropriate remedy?
389. As the Court's previous case law makes abundantly clear, the appropriate remedy has
never been considered to be reparations as India asserts. This is because reparations will
not operate so as to make good any harm that the sending State (whose rights are being
ventilated) has suffered.
390. When the Court considers what is the appropriate remedy for the sending State,
Pakistan respectfully submits that it is (at most) "review and reconsideration", in
accordance with the Court' s previous case law.
391. In its consideration ofremedies, the Court will note that if the Court were to grant the
relief sought by India then the Court will be acting as a criminal appellate court - arole it
has emphatically eschewed many times in its previous case law.
India wrongly simplifies the nature and scope of reparation
392. In Pakistan's respectful submission, India wrongly simplifies the nature and scope of
reparations flowing to a State, and an individual. In seeking to present the principle
enunciated by the Permanent Court oflnternational Justice in Factory at Chorz6w (Claim
for Indemnity) (Merits) (1928) PCIJ (Series A) (No. 17), Judgment of 13 September 1928
(at page 47) (set out below) as the complete foundation for the Court's consideration of
reparations in the instant case, India fundamentally mischaracterises the nature of the
instant dispute:
"The essential principle contained in the actual notion of an illegal act ... is that
reparation must, as far as possible, wipe out all the consequences of the illegal act and
reestablish the situation which would, in all probability, have existed if that act had not
been committed Restitution in kind, or, if this is not possible, payment of a sum
corresponding ta the value which a restitution in kind would bear; the award, if need be,
of damages for loss sustained which would not be covered by restitution in kind or
payment in place of it - such are the principles which should serve ta de termine the
amount of compensation due for an act contrary ta international law".
[Volume 3/Annex 68]
3 93. As edited by Judge Crawford, Brownlie 's Princip les of Public International Law (8th
ed., 2012) explains clearly (at page 568) that the Chorz6w Factory (Claimfor Indemnity)
(Merits) case:
Page 112 of 147
"was a claim for breach of a bilateral treaty having as its aim the protection of the
interests of the claimant state. It is ta be distinguished from the type of case in which the
individual state is seeking ta establish locus standi in order ta protect legal interests not
identifiable with itself alone or possibly with any state in particular. In standard cases. a
state protects its own le gal interests in seeking reparation for damage - material or
otherwise - suffered by itselfor its citizens. As put by ITLOS in MIV Saiga (No 2):
It is a well-established rule of international law that a State which suffers damage as
a result of an internationally wrongful act by another State is entitled ta obtain
reparation for the damage suffered from the State which committed the wrongful act
and that 'reparation must, as far as possible, wipe out all the consequences of the
illegal act and reestablish the situation which would, in all probability, have existed if
that act had not been committed. '" ( emphasi s added)
[Volume 5/Annex 120]
394. The principle that a State exercising diplomatie protection in respect of alleged injury
suffered by one of its nationals is in fact exercising its own rights, and not the rights of
the national, is further explained by the late Professor Brownlie QC (at pages 568-569) as
follows:
"This is complemented, in the case of in jury suffered by nationals, by the rule, enunciated
by the Permanent Court in Mavrommatis, that '[b ]y taking up the case of one of its
subjects and by resorting ta diplomatie action or internationaljudicial proceedings on
his behalf, a State is in reality asserting its own rights - its right ta ensure, in the persan
of its sub jects, respect for the rules of international law "'.
[Volume 5/Annex 120]
395. Pakistan respectfully submits that, in light of the above, it is clear that the Court must,
to the extent that any relief at all is available in the instant case, consider the reliefthat is
available to repair an injury to the sending State' s own legal interests. This provides in
part the explanation for the approach of the Court in this context when it has refused to
grant relief as now sought by India.
The ICJ is not an appellate criminal court
396. Pakistan respectfully submits that such relief as sought (if not demanded) by India
(the annulment of a domestic criminal conviction, the annulment of a domestic criminal
sentence, the release of a convicted prisoner) is reliefthat would only ever be capable of
being granted by an appellate criminal court.
397. The Court has repeatedly taken a very clear position - it is nota function of the Court
to serve as an appellate court against domestic court decisions imposing criminal
convictions/sentences upon individuals. Such is the importance placed by the Court on
Page 113 of 147
the correctness ofthat position that it is now clearly stated on the web site of the Court
under its 'Practical Information' section [Volume 6/Annex 138/page 1]:
"Lastly, the Courtis nota supreme court ta which national courts can turn; it does not
actas a court of fast resort for individuals. Nor is it an appeal court for any international
tribunat'.
398. The Court has repeatedly adopted this position throughout its case law as
demonstrated below, and reiterated in its Provisional Measures Ortler of 18 May 2017 in
the present case [Volume 1/Annex 6/page 13]:
"56. The Court notes that the issues brought before it in this case do not concern the
question whether a State is entitled ta resort ta the death penalty. As it has observed in
the past, "the fonction of this Courtis ta resolve international legal disputes between
States, inter a lia when they arise out of the interpre tation or application of international
conventions, and not ta actas a court ofcriminal appeal" (LaGrand (Germany v. United
States of America), ProvisionalMeasures, Order of 3 March 1999, IC.J Reports 1999
(!), p.15, para. 25; Avena and Other Mexican Nationals (Mexico v. United States of
America), Provisional Measures, Or der of 5 Fe bruary 200 3, I C.J Reports 2 00 3, p. 89,
para. 48)". (emphasis added)
3 99. In Vienna Convention on Consular Relations (Paraguay v United States of America),
Provisional Measures, Order of9 April 1998, ICJ Reports 1998, p. 248, by an application
dated 3 April 1998, Paraguay commenced proceedings against the United States of
America concerning alleged violations of the VCCR 1963 in respect of a Paraguayan
national sentenced to death in the United States of America without being informed of his
rights under Article 36(1 )(b) VCCR 1963. Paraguay asked the Court to adjudge and
declare that it was entitled to "restitutio in integrum" [Volume 3/Annex 69/para 25].
Paraguay also filed a Request for the Indication of Provisional Measures on 3 April 1998.
400. In its Ortler of9 April 1998 on the Request for the Indication ofProvisional
Measures, the Court held (at paragraph 38) [Volume 3/Annex 70]:
"Whereas the issues be fore the Court in this case do not concern the entitlement of the
federal states within the United States ta resort ta the death penalty for the most heinous
crimes; and whereas, further, the function of this Courtis ta resolve international legal
disputes between States, inter alia when they arise out of the interpretation or application
of international conventions, and not ta actas a court of criminal appeal". ( emphasi s
added)
401. Ultimately, the case was discontinued and removed from the Court's list on 10
November 1998 [Volume 3/Annex 71].
402. In LaGrand (Germany v United States of America), Provisional Measures, Order of 3
March 1999, ICJ Reports 1999, p. 9, by an application dated 2 March 1999, Germany
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commenced proceedings against the United States of America concerning alleged
violations of the VCCR 1963 in respect oftwo German nationals (the brothers Karl and
WalterLaGrand) sentenced to death in the United States of America without being
informed of their rights under Article 36(l)(b) VCCR 1963. Karl LaGrand had already
been executed on 24 F ebruary 1999 and the date for Walter LaGrand' s execution had
been set for 3 March 1999 [Volume 4/Annex 78/para 8].
403. On 2 March 1999, alongside its application instituting proceedings, Germany also
filed a Request for the Indication of Provisional Measures.
404. In its Ortler of 3 March 1999 on the Request for the Indication of Provisional
Measures, the Court granted provisional measures (at paragraph 29) requiring the United
States of America, inter alia, to: "take all measures at its disposai ta ensure that Walter
LaGrand is not executed pending the final decision in these proceedings" [Volume
3/Annex 72].
405. The Court reiterated the stance it had adopted in the Paraguay v United States of
America case (above) and held (at paragraph 25) [Volume 3/Annex 72]:
"Whereas the issues be fore the Court in this case do not concern the entitlement of the
federal states within the United States ta resort ta the death penalty for the most heinous
crimes; and whereas, jurther, the function of this Courtis ta resolve international legal
disputes between States, inter alia when they arise out of the interpretation or application
of international conventions, and not ta actas a court of criminal appeal". ( emphasi s
added)
406. Contrary to the Court' s Ortler of 3 March 1999 on the Request for the Indication of
Provisional Measures, however, Walter LaGrand was executed by the United States of
America [Volume 3/Annex 73/para 34].
407. In its Judgment of27 June 2001 in LaGrand (Germany v United States of America),
Judgment, ICJ Reports 2001, p. 466, the Court held (at paragraphs 50-52) [Volume
3/Annex 73]:
"50 . ... The United States maintains that many ofGermany 's arguments, in particular
those regarding the rule of "procedural default ", ask the Court "ta address and correct
... asserted violations of US law and errors of judgment by US judges" in criminal
proceedings in national courts.
51. Germany denies that it requests the Court ta actas an appellate criminal court, or
that Germany 's requests are in any way aimed at interfering with the administration of
justice within the United States judicial system. It maintains that it is merely asking the
Court ta adjudge and declare that the conduct of the United States was inconsistent with
its international le gal obligations towards Germany under the Vienna Convention, and ta
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draw from this failure certain le gal consequences provided for in the international law of
State responsibility.
5 2. The Court does not agree with the se arguments of the United States ... Although
Germany deals extensive/y with the practice of American courts as it bears on the
application of the Convention, all three submissions seek ta require the Court ta do no
more than apply the relevant rules of international law ta the issues in dispute between
the Parties ta this case. The exercise ofthis function. express/y mandated byArticle 38 of
its Statute. does not convert this Court into a court of appeal of national criminal
proceedings". ( emphasis added)
408. By contrast, India's request is the most ambitious ever advanced in respect of an
alleged denial of consular access. India requests the Court to annul domestic criminal
convictions and sentences, and order the release and transfer of a convicted spy/terrorist
back to the sending State. What was said about Germany' s requests of the Court in
paragraph 52 of the Court' s Judgment in LaGrand certainly cannot be said oflndia' s
requests of the Court in the instant case - the functions India seeks the Court to perform
certainly do transform the Court into a court of appeal of national criminal proceedings.
This is wholly impermissible.
409. In Avena and Other Mexican Nationals (Mexico v United States of America), by an
application dated 9 January 2003, Mexico commenced proceedings against the United
States of America concerning alleged violations of Articles 5 and 36 VCCR 1963 in
respect of ( originally) 54 individuals who had been sentenced to death in certain states
within the United States of America.
410. On 9 January 2003, in addition toits application instituting proceedings, Mexico also
submitted a Request for the Indication of Provisional Measures. In 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 held (at paragraph 48) [Volume
4/Annex 75]:
"48. . .. whereas "the function of this Court is ta resolve international le gal disputes
between States, inter alia when they arise out of the interpretation or application of
international conventions, and not ta actas a court ofcriminal appeal"; (LaGrand
(Germany v. United States of America), Provisional Measures, Order of 3 March 1999,
I.C.J Reports 1999 (1), p. 15, para. 25)" (emphasis added)
411. The Court has repeatedly and consistently affirmed the principle that it does not have
the function of a criminal appellate court. Why the Court has adopted this position is not
hard to see: there are limits to what the Court can do when it cornes to the ordering of
relief, and parties considering invoking the Court' s jurisdiction are taken to be well aware
of that fact. Moreover, to open the door to nullity of domestic criminal process would
require the Court to engage in very intensive fact review. Factors to be considered might
include at what stage/what point intime should "nullity" be the legal consequence?
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Why a status quo remedy does not existfor Article 36 VCCR 1963 breaches
412. India appears to contend that failure to give consular access in respect of Commander
Jadhav invalidated all steps taken in respect of the investigation into his activities and his
prosecution for those activities, with the result that there should be a remedy that has the
eff ect of returning Commander J adhav to the status quo ante. However, for reasons that
have been put before the Court on previous occasions, there is no legal basis to contend
that such a remedy is available.
413. In Vienna Convention on Consular Relations (Paraguay v United States of America),
in oral submissions at a hearing on Provisional Measures, Counsel for the United States
of America stated of the relevant state practice, in the context of discussion on Paraguay' s
submission that a lack of consular notification was a legal breach requiring the vacation
of a criminal conviction in order to return the injured national to the status quo ante, as
follows (verbatim transcript, Tuesday 7 April 1998 at 10am, paragraph 2.18) [Volume
4/Annex 76]:
"2.18. It is not dif.ficult ta imagine why such remedies do not exist. As noted, consular
assistance, unlike le gal assistance, is not regarded as a predicate ta a criminal
proceeding. Moreover, if a failure ta advise a detainee of the right of consular
notification automatically required undoing a criminal procedure, the result would be
absurd In particular, it would be inconsistent with the wide variation that exists in
the level of consular services provided by dif.ferent countries. But it would be equally
problematic ta have a rule that a failure of consular notification required a return ta
the status quo ante only if notification would have led ta a dif.ferent outcome. It would
be unworkable for a court ta attempt ta determine reliably what a consular officer
would have done and whether it would have made a dif.ference. Doing sa would
require access ta normal/y inviolable consular archives and testimony from consular
officiais notwithstanding their usual privileges and immunities. In this case, for
example, one might wish ta examine Paraguay 's consular instructions and practices
as of the time when Mr. Breard was arrested and inquire into the resources then
available ta Paraguay 's consular officers. Surely governments did not intend that
such questions become a matter of inquiry in the courts".
414. As discussed above, the Paraguay v United States of America case was discontinued
before any judgment concerning remedies was given. However, Pakistan respectfully
observes that these submissions are informative regarding the unavailability and/or
inappropriateness of a status quo ante remedy against any breach of Article 36 VCCR
1963.
415. The reasons for this are many. For example, in the instant case, (and, indeed, in any
other case of an alleged violation of Article 36 VCCR 1963), the Courtis unlikely to be
able to determine properly or reliably on the facts whether consular notification would
have had any impact or made any difference in a given case.
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416. On that basis, Pakistan respectfully submits, it is clear that the appropriate remedy to
be issued by the Court in respect of any determined breach of Article 36 VCCR 1963
does not involve any remedy requiring the returning of the national to the status quo ante.
India 's reliance upon the Chorz6w Factory principle is inappropriate
417. India puts forward the decision in the Chorz6w Factory (Claimfor Indemnity)
(Merits) case as the complete foundation for the consideration of reparations in the instant
case - arguing that it gives rise to a requirement to provide full restitution in kind.
418. Professor Attila Tanzi (Professor oflnternational Law at the University ofBologna),
publishing in the Max Planck Encyclopaedia of Public International Law in 2013 on
'Restitution' [Volume 5/Annex 121], explains the origins ofrestitution (at paragraph 4)
as follows:
"Restitution goes back ta Roman law under which it constituted the redress which the
praetor granted in order ta re-establish the situation prior ta the occurrence of a
wrongful harm, such as the rescission of a con tract produced through fraud or force".
419. The Court has previously explained the concept and development ofreparations in
international law as arising out of private civil law concepts damnum emergens (actual
loss) and lucrum cessans (loss of profits)- concepts that have no reflection in the
circumstances of the instant case.
420. For example, in Ahmadou Sadio Diallo (Guinea v Democratic Republic of the
Congo), Judgement of30 November 2010, Judge Cançado Trindade, in a Separate
Opinion, stated (at paragraph 52) [Volume 4/Annex 77]:
"The juridical categories crystallized in time and which came ta be utilized - in a
context distinct from the am bit of the international law of human rights - ta govern
the determination of reparations were strongly marked by analogies with solutions of
private law, and, in particular, of civil law (droit civil), in the ambit of national le gal
systems: such is the case, e.g., of the concept of material damage and moral or
immaterial damage, and of the elements of damnum emergens and lucrum cessans".
421. Furthermore, it is clear in public international law that "restitution" is not appropriate
in all cases. Article 35 ARSIWA 2001 [Volume 6/Annex 134/page 96] provides that:
"A State responsible for an internationally wrongful act is under an obligation ta
make restitution, that is, ta re-establish the situation which existed before the
wrongful act was committed, provided and ta the extent that restitution:
(a) is not materially impossible;
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(b) does not involve a burden out of all proportion ta the bene.fit derivingfrom
restitution instead of compensation".
422. In the instant case, Pakistan submits that India's reliance upon the principle
enunciated in the Chorz6w Factory (Claimfor Indemnity) (Merits) case to lend support to
India's viewthat a full restitution in kind remedy is available and/or appropriate is
misconceived. India fails to provide any explanation of the specific context of the
Chorz6w Factory (Claimfor Indemnity) (Merits) case, which, in Pakistan's respectful
submission, points to the conclusion that it is an inappropriate starting point for the
consideration ofreparations in the instant case.
423. The Chorz6w Factory (Claim for Indemnity) (Merits) case concemed the taking over
by the Polish Govemment of a nitrate factory situated at Chorz6w in a part of Upper
Silesia allotted to Poland. The factory had been built during wartime under contract
between Germany and private German enterprises. Germany contended that, since the
factory was privately owned, the Polish law pursuant to which it had been taken over
constituted an unlawful liquidation of the property contrary to the Geneva Convention of
1922 on the partition of Upper Silesia. Poland claimed that the factory was (as the
property of the German Reich) could be lawfully expropriated under the Treaty of
Versailles.
424. Professor Brownlie QC succinctly explains (at pages 569-570) the circumstances of
the decision in Chorz6w Factory (Claimfor Indemnity) (Merits) as follows [Volume
5/Annex 120]:
"Ta achieve the abject of reparation tribunals may give 'le gal restitution', in the form
of a declaration that an offending act of the executive, legislature or judicature is
unlawful and without international effect. Such action can be classified either as a
genuine application of the principle of restitutio in integrum or as an aspect of
satisfaction. Restitution in kind is a logical means of repairing an injury. Customary
law or treaty may create obligations ta which is annexed a power ta demand specific
restitution. Thus in Chorz6w Factorv the Permanent Court took the view that. the
purpose of the Geneva Convention on 1922 being ta maintain the economic status quo
in Polish Upper Silesia. restitution was the 'natural redress' for violation ofor failure
ta observe the treaty provisions. In imposing obligations on aggressor states ta make
reparation for the results of illegal occupation, the victims may be justified in
requiring restitution of 'abjects of artistic, historical or archaeological value
belonging ta the cultural heritage of the [retro Jceded territory '. It would seem that
territorial disputes may also be settled by specific restitution, although the
declaratory form of judgments of the International Court often masks the element of
restitution". ( emphasis added)
425. Thus, it is apparent that the reasons as to why restitution (i.e. return to status quo) was
considered "natural redress" for the violations in Chorz6w Factory (Claimfor Indemnity)
(Merits) were directly linked to the very specific purpose of the relevant treaty (in that
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case, the 1922 Geneva Convention) which was the maintenance of an economic status
quo. But, such a position finds no reflection in the facts or treaty obligations or treaty
purposes in the instant case.
426. Furthermore, the principle enunciated by the Permanent Court oflnternational Justice
was arrived at on the basis of the facts before it - a finding of an unlawful expropriation
of property- where it was relatively straightforward for the Court to determine both
actual loss suffered (reflected in the Roman law principle of damnum emergens) and loss
of profits (reflected in the Roman law principle of lucrum cessans).
427. By contrast, in the instant case, the Court's task (if and to the extent the Court finds
that any breach of an international law obligation giving rise to a right to make
reparations has occurred) would be to determine the appropriate reparations for past
breaches of the VCCR 1963 in circumstances where the Court has, on numerous
occasions (as discussed below) determined, in the context of breaches of Article 36
VCCR 1963 specifically, that the appropriate remedy is something very far removed from
full restitution in kind.
428. Chorz6w Factory (Claimfor Indemnity) (Merits), and the conclusions reached by the
Permanent Court oflnternational Justice, were thus concerned with a particular set of
facts and treaty obligations that are not reflected in the facts or treaty obligations or treaty
purposes in the instant case. Pakistan respectfully submits that the principle in Chorz6w
Factory (Claimfor Indemnity) (Merits) is inappropriate as the definitive starting point for
the consideration of any relief for breaches of the treaty obligations relevant to the instant
case.
"Review and Reconsideration"
429. Moreover, it is clear from the previous death penalty/consular access cases before the
Court concerning the United States of America that the Court has given careful, repeated
and consistent consideration to the appropriate remedies in cases of alleged violations of
Article 36 VCCR 1963: the appropriate remedy is "review and reconsideration".
430. InLaGrand, in its Application (paragraph 15) [Volume 4/Annex 78], Germany asked
the Court to adjudge and declare:
"(J) that the United States, in arresting, detaining, trying, convicting and sentencing Karl
and Walter LaGrand, as described in the preceding statement of facts, violated its
international legal obligations ta Germany, in its own right and in its right of diplomatie
protection of its nationals, as provided by Articles 5 and 36 of the Vienna Convention,
(2) that Germany is therefore entitled ta reparation,
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(3) that the United States is under an international legal obligation not to apply the
doctrine of "procedural default" or any other doctrine of national law, so as to preclude
the exercise of the rights accorded under Article 36 of the Vienna Convention; and
(4) that the United States is under an international obligation to carry out in conformity
with the foregoing international legal obligations any future detention of or criminal
proceedings against any other German national in its territory, whether by a constituent,
legislative, executive, judicial or other power, whether that power holds a superior or
subordinate position in the organization of the United States, and whether that power 's
functions are of an international or internai character;
and that, pur suant to the foregoing international le gal obligations,
(1) the criminal liability imposed on Karl and Walter LaGrand in violation of
international legal obligations is void, and should be recognized as void by the legal
authorities of the United States;
(2) the United States should provide reparation, in the form of compensation and
satisfaction,for the execution of Karl LaGrand on 24 February 1999;
(3) the United States should restore the status quo ante in the case of Walter LaGrand,
that is re-establish the situation that existed be fore the detention of, proceedings against,
and conviction and sentencing of that German national in violation of the United States'
international legal obligation took place; and
(4) the United States should provide Germany a guarantee of the non-repetition of the
illegal acts".
431. Contrary to the Court' s Ortler of 3 March 1999 on the Request for the Indication of
Provisional Measures, however, Walter LaGrand was executed by the United States of
America [Volume 3/Annex 73/para 34].
432. In its Memorial (at paragraph 7.02) [Volume 4/Annex 79], Germany asked the Court
to adjudge and declare:
"(1) that the United States, by not informing Karl and Walter LaGrand without delay
following their arrest of their rights under Article 3 6 subparagraph 1 (b) of the Vienna
Convention on Consular Relations, and by depriving Germany of the possibility of
rendering consular assistance, which ultimately resulted in the execution of Karl and
Walter LaGrand, violated its international legal obligations to Germany, in its own right
and in its right of diplomatie protection of its nationals, under Articles 5 and 3 6
paragraph 1 of the said Convention;
(2) that the United States, by applying rules of its domestic law, in particular the doctrine
of procedural default, which barred Karl and Walter LaGrand from raising their claims
under the Vienna Convention on Consular Relations, and by ultimately executing them,
violated its international le gal obligation to Germany under Article 36 paragraph 2 of the
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Vienna Convention ta give full effect ta the purposes for which the rights accorded under
Article 3 6 of the said Convention are intended;
(3) that the United States, by failing ta take all measures at its disposai ta ensure that
Walter LaGrand was not executed pending the final decision of the International Court of
Justice on the matter, violated its international legal obligation ta comply with the Order
on Provisional Measures issued by the Court on 3 March 1999, and ta refrain from any
action which might interfere with the subject matter of a dispute while judicial
proceedings are pending;
and, pur suant ta the foregoing international le gal obligations,
(4) that the United States shall provide Germany a guarantee that it will not repeat its
illegal acts and ensure that, in any future cases of detention of or criminal proceedings
against German nationals, United States domestic law and practice will not constitute a
bar ta the effective exercise of the rights under Article 3 6 of the Vienna Convention on
Consular Relations".
433. In its Judgment of27 June 2001 in LaGrand (Germany v United States of America),
Judgment, ICJ Reports 2001, p. 466, the Court (at paragraph 128) granted the following
relief [Volume 3/Annex 73]:
"128. For these reasons,
THE COURT,
(6) Unanimously,
Takes note of the commitment undertaken by the United States of America ta ensure
implementation of the specific measures adopted in performance of its obligations under
Article 36, paragraph 1 (b), of the Convention; andfinds that this commitment must be
regarded as meeting the Federal Republic of Germany 's request for a general assurance
of non-repetition;
(7) By fourteen votes ta one,
Finds that should nationals of the Federal Republic ofGermany nonetheless be sentenced
ta severe penalties, without their rights under Article 36, paragraph 1 (b), of the
Convention having been respected, the United States of America, by me ans of its own
choosing, shall allow the review and reconsideration of the conviction and sentence by
taking account of the violation of the rights set forth in that Convention".
434. Accordingly, even in the extreme circumstances of the LaGrand case where the
accused national in respect of whom Germany exercised diplomatie protection had been
executed in breach of the Court's provisional measures order, the Court went no further in
its granting ofremedies than to order "review and reconsideration" by the United States
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of America "by means of its own choosing" "taking account of the violations setforth in
[the VCCR 1963}".
435. In Avena, in its Memorial, Mexico (at paragraph 407) applied for wide ranging relief
when it asked the Court to adjudge and declare [Volume 3/Annex 74/pages 174-176]:
"(1) that the United States of America, in arresting, detaining, trying, convicting, and
sentencing the fifty-four Mexican nationals on death row described in Mexico 's
Application and this Memorial, violated its international legal obligations ta Mexico, in
its own right and in the exercise of its right of diplomatie protection of its nationals, as
provided by Article 3 6 of the Vienna Convention;
(2) that the obligation in Article 36(1) of the Vienna Convention requires notification
before the competent authorities of the receiving State interrogate the foreign national or
take any action potentially detrimental ta his or her rights;
(3) that the United States, in applying the doctrine of procedural default, or any other
doctrine of its municipal law, ta preclude the exercise and review of the rights afforded by
Article 36 of the Vienna Convention, violated its international obligations ta Mexico, in
its own right and in the exercise of its right of diplomatie protection of its nationals, as
provided by Article 36 of the Vienna Convention; and
(4) that the United States is under an international legal obligation ta carry out in
conformity with the foregoing international legal obligations any future detention of or
criminal proceedings against the fifty-four Mexican nationals on death row and any other
Mexican national in its territory, whether by a constituent, legislative, executive, judicial
or other power, whether that power holds a superior or a subordinate position in the
organization of the United States, and whether that power 's fonctions are international or
internai in character;
and that, pur suant ta the foregoing international le gal obligations,
(1) Mexico is entitled ta restitutio in integrum, and the United States therefore is under an
obligation ta restore the status quo ante, that is, reestablish the situation that existed at
the time of the detention and prior ta the interrogation of, proceedings against, and
convictions and sentences of, Mexico 's nationals in violation of the United States'
international legal obligations, specifically by, among other things,
(a) vacating the convictions of the fifty-four Mexican nationals;
(b) vacating the sentences of the fifty-four Mexican nationals;
(c) excluding any subsequent proceedings against the fzfty-four Mexican nationals any
statements and confessions obtained from them prior ta notification of their rights ta
consular notification and access;
Page 123 of 147
(d) preventing the application of any procedural penalty for a Mexican national 's failure
timely ta raise a claim or defense based on the Vienna Convention where competent
authorities of the United States have breached their obligation ta advise the national of
his rights under the Convention;
(e) preventing the application of any municipal law doctrine or judicial holding that
prevents a court in the United States from providing a remedy, including the relief ta
which this Court holds that Mexico is entitled here, ta a Mexican national whose Article
3 6 rights have been violated; and
(f) preventing the application of any municipal law doctrine or judicial holding that
requires an individualized showing of prejudice as a prerequisite ta relief for the
violations of Article 36;
(2) the United States, in light of the regular and continuous violations setforth in
Mexico 's Application and Memorial, is under an obligation ta take all legislative,
executive, and judicial steps necessary ta:
(a) ensure that the regular and continuing violations of the Article 36 consular
notification, access, and assistance rights of Mexico and its nationals cease;
(b) guarantee that its competent authorities, of federal, state, and local jurisdiction,
maintain regular and routine compliance with their Article 36 obligations;
(c) ensure that its judicial authorities cease applying, and guarantee that in the future
they will not apply:
(i) any procedural penalty for a Mexican national 's failure timely ta raise a claim or
defense based on the Vienna Convention where competent authorities of the United States
have breached their obligation ta advise the national ofhis or her rights under the
Convention;
(ii) any municipal law doctrine or judicial holding that prevents a court in the United
States from providing a remedy, including the relief ta which this Court holds that Mexico
is entitled here, ta a Mexican national whose Article 36 rights have been violated; and
(iii) any municipal law doctrine or judicial holding that requires an individualized
showing of prejudice as a prerequisite ta relief for the Vienna Convention violati ans
shown here".
436. In its Judgment of3 l March 2004, the Court (at paragraph 153) [Volume 3/Annex
67] granted the following relief:
"153. For these reasons,
THE COURT,
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(9) By fourteen votes ta one,
Finds that the appropriate reparation in this case consists in the obligation of the United
States of America ta provide, by me ans of its own choosing, review and reconsideration
of the convictions and sentences of the Mexican nationals referred ta in subparagraphs
(4), (5), (6) and (7) above, by taking account bath of the violation of the rights setforth in
Article 3 6 of the Convention and of paragraphs 138 ta 141 of this Judgment;
(10) Unanimously,
Takes note of the commitment undertaken by the United States of America ta ensure
implementation of the specific measures adopted in performance of its obligations under
Article 36, paragraph 1 (b), of the Vienna Convention; andjinds that this commitment
must be regarded as meeting the request by the United Mexican States for guarantees and
assurances of non-repetition;
(11) Unanimously,
Finds that, should Mexican nationals nonetheless be sentenced ta severe penalties,
without their rights under Article 36, paragraph 1 (b), of the Convention having been
respected, the United States of America shall provide, by means of its own choosing,
review and reconsideration of the conviction and sentence, sa as ta allow full weight ta be
given ta the violation of the rights set forth in the Convention, taking account of
paragraphs 138 ta 141 of this Judgment".
437. In Avena, the Court again considered that the appropriate remedy for breaches of
Article 36 VCCR 1963 was "review and reconsideration of the conviction and sentence"
[Volume 3/Annex 67/para 148].
438. The Court has firmly and repeatedly refrained from granting relief above and beyond
a direction to the receiving State to ensure "review and reconsideration" of the relevant
national tribunal' s deci si ons. Even in the extreme circumstances of La Grand, where
WalterLaGrand was executed by the United States of America in direct contravention of
an express obligation contained in a Provisional Measures Ortler of the Court, the Court
did not go further than to direct that the United States of America ensure "review and
reconsideration".
439. The Court, with respect to India, should not, in the face of such clear statements of
principle, be called upon by India to perform any of the functions or to grant relief such as
that which would be exercised by a criminal court of appeal - including the granting of
declarations annulling Commander Jadhav' s conviction and/or sentence and the giving of
directions for Commander Jadhav' s release, acquittal and transfer to India.
440. Indeed, India seems unable or unwilling to explain how its requests for relief would
do anything other than position the ICJ as an "appellate court" from domestic courts - a
wholly impermissible and unsustainable position.
Page 125 of 147
The modalitieslrequirements of "review and reconsideration"
441. In Avena and Other Mexican Nationals (Mexico v United States of America),
Judgment, IC.J Reports 2004, page 12, the Court held (at paragraphs 121-123) [Volume
3/Annex 67]:
"121. Similarly, in the present case the Court 's task is ta determine what would be
adequate reparationfor the violations of Article 36. It should be clear from what has
been observed above that the international/y wrongful acts committed by the United
States were the failure of its competent authorities ta inform the Mexican nationals
concerned, ta notifj; Mexican consular posts and ta enable Mexico ta provide consular
assistance. It follows that the remedy ta make good these violations should consist in an
obligation on the United States ta permit review and reconsideration of the se nationals'
cases by the United States courts, as the Court will explain further in paragraphs 128 ta
134 below, with a view ta ascertainingwhether in each case the violation of Article 36
committed by the competent authorities caused actual prejudice ta the defendant in the
process of administration of criminal justice.
122. The Court reaffirms that the case be fore it concerns Article 3 6 of the Vienna
Convention and not the correctness as such of any conviction or sentencing. The question
ofwhether the violations of Article 36, paragraph 1, are ta be regarded as having, in the
causal sequence of events, ultimately led ta convictions and severe penalties is an integral
part of criminal proceedings be fore the courts of the United States and is for them ta
de termine in the process of review and reconsideration. In sa doing, it is for the courts of
the United States ta examine the facts, and in particular the prejudice and its causes,
taking account of the violation of the rights set forth in the Convention.
123. It is not ta be presumed, as Mexico asserts. that partial or total annulment of the
conviction or sentence provides the necessarv and sole remedy. In this regard, Mexico
cites the recent Judgment of this Court in the case concerning the Arrest Warrant of 11
April 2000 (Democratic Republic of the Congo v. Belgium), in which the "Court ordered
the cancellation of an arrest warrant issued by a Belgian judicial official in violation of
the international immunity of the Congo Minister for Foreign Aff airs". H owever, the
present case has clearly ta be distinguished from the Arrest Warrant case. In that case,
the question of the legality under international law of the act of issuing the arrest warrant
against the Congolese Minister for Foreign A.flairs by the Belgian judicial authorities
was itself the subject-matter of the dispute. Since the Court found that act ta be in
violation of international law relating ta immunity, the proper legal consequence was for
the Court ta order the cancellation of the arrestwarrant in question (I.C.J Reports 2002,
p. 33). By contrast, in the present case it is not the convictions and sentences of the
Mexican nationals which are ta be regarded as a violation ofinternational law. but solelv
certain breaches oftreaty obligations which preceded them". (emphasis added)
442. India attempts to deflect from these principles by attacking the military justice system
in Pakistan through which Commander Jadhav was tried, convicted and sentenced.
Page 126 of 147
443. India' s attack is wholly unjustified and, with respect, self-defeating.
The Military Law experts: the Paphiti/Garraway Report
444. Pre-eminent UK military experts (Brigadier (Rtd) Anthony Paphiti and Professor
Colonel (Rtd) Charles Garraway CBE) have conducted a review of a representative
example of the laws and procedures of UN Member States to address questions including
State practice regarding the jurisdictional basis, process and procedure for military courts
[Volume 7/Annex 142]. Their review often States, including India, Pakistan, the US and
the United Kingdom, leads to conclusions wherein they state, inter alia:
444.1. The military courts of Pakistan are "soundly based in statute which provides
the substantive legal basisfor their jurisdiction, practice and procedure" [Volume
7 /Annex 142/page vi/para 3(b)];
444.2. They do not consider "that the "espionage "jurisdiction of the Military Courts
of Pakistan (finding its source in a statu te law of 19 2 3 during the British India
period) is perse unfair or otherwise improper" [Volume 7/Annex 142/page vii/para
3(c)];
444.3. The" "judicial review "function of the Civilian Courts [of Pakistan}. ..
appears ta provide a potential effective safeguard against manifest failings in due
process" [Volume 7/Annex 142/page vii/para 3(d)].
445. The report and conclusions of these experts are, with respect, clear, cogent and
convmcmg.
446. India's criticisms of Pakistan's military justice system are (with respect)
misconceived and misplaced and cannot serve as a distraction (if so intended), let al one
buttress the use of the Court' s process for pejorative point scoring in this regard.
447. Returning to the principles consistently reaffirmed by the Court, in Avena, the Court
went on to state (at paragraph 128) [Volume 3/Annex 67]:
"128 . ... As has already been observed in paragraph 120, the Court in the LaGrand
Judgment stated the general principle ta be applied in such cases by way of a remedy ta
redress an injury of this kind (I.C.J Reports 2001, pp. 513-514, para. 125)".
448. That general principle as stated by the Court in LaGrand (Germany v United States of
America, Judgment, ICJ Reports 2001, p. 466 (at paragraph 125) [Volume 3/Annex 73]
is as follows:
"125 ... The Court considers in this respect that if the United States, notwithstanding its
commitment referred ta in paragraph 124 above, should fail in its obligation of consular
Page 127 of 147
notification ta the detriment of German nationals, an apology would not suffice in cases
where the individuals concerned have been subjected ta prolonged detention or convicted
and sentenced ta severe penalties. In the case of such a conviction and sentence. it would
be incumbent upon the United States ta allow the review and reconsideration of the
conviction and sentence by taking account of the violation of the rights set forth in the
Convention. This obligation can be carried out in various wavs. The choice of me ans
must be left ta the United States". (emphasis added)
449. It is thus for the receiving State to choose the means through which any "review and
reconsideration" of the conviction and sentence of the accused is carried out.
450. In Avena, the Court continued in its explanation of"review and reconsideration" (at
paragraph 131) [Volume 3/Annex 67]:
"131. In stating in its Judgment in the LaGrand case that "the United States of America,
by me ans of its own choosing, shall allow the review and reconsideration of the
conviction and sentence" (I.C.J Reports 2001, p. 516, para. 128 (7); emphasis added),
the Court acknowledged that the cancre te modalities for such review and reconsideration
should be left primarily ta the United States. It should be underlined, however, that this
freedom in the choice of means for such review and reconsideration is not without
qualification: as the passage of the Judgment quoted above makes abundantly clear, such
review and reconsideration has ta be carried out "by taking account of the violation of
the rights setforth in the Convention" (I.C.J Reports 2001, p. 514, para. 125), including,
in particular, the question of the le gal consequences of the violation upon the criminal
proceedings that have followed the violation". ( emphasis original)
451. The Court went on to state (at paragraphs 138-140) [Volume 3/Annex 67]:
"138. The Court would emphasize that the "review and reconsideration "prescribed by it
in the LaGrand case should be effective. Thus it should "tak[e J account of the violation of
the rights setforth in [the} Convention" (I.C.J Reports 2001, p. 516, para. 128 (7)) and
guarantee that the violation and possible preiudice caused by that violation will be fullv
examined and taken into account in the review and reconsideration process. Lastly,
review and reconsideration should be bath of the sentence and of the conviction.
139 .... In this regard, the Court would point out thatwhat is crucial in the review and
reconsideration process is the existence of a procedure which guarantees that full weight
is given ta the violation of the rights set /Orth in the Vienna Convention. whatever may be
the actual outcome of such review and reconsideration.
140. As has been explained in paragraphs 128 ta 134 above, the Courtis of the view that,
in cases where the breach of the individual rights ofMexican nationals under Article 36,
paragraph 1 (b), of the Convention has resulted, in the sequence ofjudicial proceedings
that has followed, in the individuals concerned being subjected ta prolonged detention or
convicted and sentenced ta severe penalties, the le gal consequences of this breach have ta
Page 128 of 147
be examined and taken into account in the course of review and reconsideration. The
Court considers that it is the ;udicial process that is suited ta this task". ( emphasis added)
452. As explained below, Pakistan' s judicial process is capable of undertaking the "review
and reconsideration" task.
453. Moreover, notwithstanding that the Domestic Court judiciary are best suited to the
"review and reconsideration" task, there is still arole for clemency procedures to play.
The Court went on to state (at paragraph 143) [Volume 3/Annex 67]:
"143 . ... The Court considers nevertheless that appropriate clemencv procedures can
supplement ;udicial review and reconsideration. in particular where the ;udicial system
has failed ta take due account of the violation ofthe rights set for th in the Vienna
Convention. as has occurred in the case of the three Mexican nationals referred ta in
paragraph 114 above".
454. As discussed previously (and as has already been explained to India on several
previous occasions, including (at the latest) by the then Adviser to the Prime Minister of
Pakistan for Foreign Affairs on 14 April 2017 [Volume 2/Annex 23]), Commander
Jadhav is plainly aware of the clemency procedures available to him in Pakistan's legal
system, as those procedures have already been invoked by him [Volume 2/Annex
35/pages 1-2].
455. InRequestfor Interpretation oftheJudgmento/31 March 2004 in the Case
concerning Avena and Other Mexican Nationals (Mexico v United States of America)
(Mexico v United States of America), Judgment, IC.J Reports 2009, page 3, the Court
gave some further explanation of "review and reconsideration" and held (at paragraph
47) [Volume 4/Annex 80]:
"47. Before proceeding ta the additional requests of Mexico, the Court observes that
considerations of domestic law which have sa far hindered the implementation of the
obligation incumbent upon the United States, cannot relieve it of its obligation. A choice
of me ans was allowed ta the United States in the implementation of its obligation and,
failing success within a reasonable period of time through the means chosen, it must
rapidly turn ta alternative and effective means of attaining that result".
i,,,,.i
i,,,,.i
456. In that case, one Mr. Medellin had been executed by the State of Texas in breach of a >
provisional measures order granted by the Court on 16 July 2008. Mexico contended that
Mr. Medellin had not been afforded "review and reconsideration", in the terms specified
in the Court' s Avena Judgment of 31 March 2004. The Court discussed the significance
ofthat development (at paragraph 52) [Volume 4/Annex 80]:
"52. Mr. Medellin was executed in the State of Texas on 5 August 2008 after having
unsuccessfully filed an application for a writ of habeas corpus and applications for stay
of execution and after having been refused a stay of execution through the clemency
process. Mr. Medellin was executed without being afforded the review and
Page 129 of 147
reconsideration provided for by paragraphs 138 ta 141 of the Avena Judgment, contrary
ta what was directed by the Court in its Order indicating provisional measures of 16 July
2008".
457. Yet, even in those extreme circumstances, the Court did not accede to Mexico' s
request for the Court to or der guarantees of non-repetiti on ( on juri sdi cti onal grounds) and
instead (at paragraph 60) [Volume 4/Annex 80] simply stated:
"60. The Courtfinds it sufficient ta reiterate that its Avena Judgment remains binding and
that the United States continues ta be under an obligation Jully ta implement it".
458. On the basis of the above, Pakistan respectfully submits:
458.1. that the Court has consistently rej ected assuming the role of an appellate court
against convictions and sentences issued by domestic criminal tribunals (precisely
the role that India seeks the Court to perform in this case);
458.2. that the Court has repeatedly made it clear that the appropriate remedy for a
breach of Article 36 VCCR 1963 is a direction for the receiving State to carry out a
"review and reconsideration" that full y takes into account the effect of the violation
and that that exercise is best carried out not by the executive but by the judiciary:
Avena Judgment (paragraph 131 ): "131. In stating in its Judgment in the LaGrand
case that "the United States of America, by me ans of its own choosing, shall allow the
review and reconsideration of the conviction and sentence" (1. C.J Reports 2001, p.
516, para. 128 (7); emphasis added), the Court acknowledged that the concrete
modalities for such review and reconsideration should be left primarily ta the United
States. It should be underlined, however, that this freedom in the choice of means for
such review and reconsideration is not without qualification : as the passage of the
Judgment quoted above makes abundantly clear, such review and reconsideration has
ta be carried out "by taking account of the violation of the rights set forth in the
Convention" (I.C.J Reports 2001,p. 514,para. 125); including, inparticular, the
question of the le gal consequences of the violation upon the criminal proceedings that
have followed the violation" [Volume 3/ Annex 67].
Avena Judgment (paragraph 138): "138. The Court would emphasize that the "review
and reconsideration "prescribed by it in the LaGrand case should be effective. Thus it
should "tak[e} accountofthe violation of the rights setforth in [the} Convention"
(1. C.J Reports 2001, p. 516, para. 128 (7)) and guarantee that the violation and the
possible prejudice caused by that violation will be Jully examined and taken into
account in the review and reconsideration process. Lastly, review and
reconsideration should be bath of the sentence and of the conviction" [Volume
3/Annex 67].
Page 130 of 147
458.3. that, notwithstanding the above, the Courtis also clear that appropriate
clemency procedures can actas a supplement to the judiciary' s "review and
reconsideration" process.
Clemency procedures in Pakistan available ta and being utilised by Commander Jadhav
459. On 14 April 2017, in the course of his Press Statement, the Adviser stated that
Commander Jadhav had the right to lodge an appeal with an appellate court against his
conviction and sentence within 40 days. The Adviser then made express reference to the
fact that Commander J adhav was free to "lodge a mercy petition ta the COAS within 60
days of the decision by the appellate court". Thereafter, Commander Jadhav was free to
"lodge a mercy petition ta the President of Pakistan within 90 days after the decision of
COAS on the mercy petition" [Volume 2/Annex 23/pages 2-3].
460. By virtue of Section 133B of the Pakistan Army Act 1952 [Volume 5/Annex 105]:
"(J) Any persan ta whom a court-martial has awarded a sentence of death, imprisonment
for life, imprisonment exceeding three months, or dismissal from the service after the
commencement of the Pakistan Army (Amendment) Act, 199 2, may, within forty days from
the date of announcement of finding or sentence or promulgation thereof, whichever is
earlier, prefer an appeal against the finding or sentence ta a Court of Appeals consisting
of the Chief of the Army Staff or one or more ojficers designated by him in this behalf,
presided by an ojficer not below the rank of Brigadier in the case ofGeneral CourtMartial
or Field General Court-Martial convened or confirmed or counter-signed by an
ojficer of the rank of Brigadier or below as the case may be, and one or more ojficer,
presided by an ojficer not below the rank of Major General in other cases, hereinafter
referred ta as the Court of Appeals.
Provided that where the sentence is awarded by the court-martial under an Islamic law,
the ojficer or ojficer sa designated shall be Muslims:-
Provided further that every Court of Appeals may be attended by a judge advocate who
shall be an ojficer belonging ta the Judge Advocate General 's Department, Pakistan
Army, or if no such ojficer is available, a persan appointed by the Chief of Army Staff
(2) A Court of Appeals shall have power to,-
(a) accept or reject the appeal in whole or in part; or
(b) substitute a valid finding or sentence for an invalid finding or sentence or
(c) calf any witness, in its discretionfor the purpose of recording additional evidence in
the presence of the parties, who shall be afforded an opportunity ta put any question ta
the witness; or
(d) annul the proceedings of the court-martial on the ground that they are illegal or
unjust; or
Page 131 of 147
(e) order retrial of the accused by ajresh court; or
(f) remit the whole or any part of the punishment or redu ce or enhance the punishment or
commute the punishment for any less punishment or punishments mentioned in this Act.
(3) The decision of a Court of Appeals shall be final and shall not be called in question
before any court or other authority whatsoever".
461. By virtue of Section 143 of the Pakistan Army Act 1952 [Volume 5/Annex 106]:
"(J) When any persan subject ta this Act has been convicted by a court-martial of any
offence, the Federal Government or the Chief of the Army Staff or any officer not below
the rank of Brigadier empowered in this behalf by the Chief of the Army Staff may-
(i) either without conditions or upon any conditions which the persan sentenced accepts,
pardon the persan or remit the whole or any part of the punishment awarded; or
(ii) mitigate the punishment awarded or commute such punishment for any less
punishment or punishment mentioned in this Act:
Provided that a sentence of ri garous imprisonment shall not be commuted for a sentence
of detention for a term exceeding the term of ri garous imprisonment awarded by the
Court:
Providedfurther that a persan ta whom a sentence has been awarded as hadd under an
Islamic law shall not be pardoned, and no such sentence shall be mitigated, remitted or
commuted ta any less punishment or punishments, otherwise than in accordance with
such law.
(2) If any condition on which a persan has been pardoned or a punishment has been
remitted is, in the opinion of the authority which granted the pardon or remitted the
punishment, not fulfilled, such authority may cancel the pardon or remission, and
thereupon the sentence of the Court shall be carried into effect as if such pardon had not
been granted or such punishment had not been remitted:
Provided that, in the case of a persan sentenced ta imprisonment for life, rigorous
imprisonment, or detention, such persan shall undergo only the unexpired portion of his
sentence.
(3) When under the provisions of sub-section (5) of section 62 a non-commissioned
officer is deemed ta be reduced ta the ranks, such reduction shall, for the purposes of this
section, be treated as a punishment awarded by sentence of a Court martiaf'.
462. By virtue of Article 45 of the 1973 Constitution of Pakistan [Volume 5/Annex 107]:
"The President shall have the power ta grant pardon, reprieve and respite, and ta remit,
suspend or commute any sentence passed by any court, tribunal or other authority".
Page 132 of 147
463. In light of the ab ove, Pakistan respectfully submits that its legal and constitutional
framework provides for clemency procedures that appropriately supplement the judicial
procedures for "review and reconsideration" discussed further below.
"Review and reconsideration" by the judiciary in Pakistan
464. As established by the Court in its Judgment in Avena (as set out above) appropriate
clemency procedures can be a "supplement" to judicial review and reconsideration.
465. Pakistan submits that there is an established and defined process in the domestic law
of Pakistan, whereby the civil courts have jurisdiction to carry out an effective review of
decisions made by the tribunals comprising Pakistan's military justice system.
466. In District Bar Association, Rawalpindi & ors v Federation of Pakistan & ors (PLD
2015 SC 401), the Supreme Court of Pakistan undertook an extensive review of Pakistani
case law concerning the civil courts' judicial review jurisdiction under Article 199 of the
1973 Constitution of Pakistan as regards trials by FGCM under the Pakistan Army Act
1952 as amended by the Pakistan Army (Amendment) Act 2015 and convictions and
sentences handed down thereunder. Following that review, the Supreme Court held (at
paragraph 171) (as quoted in the Zaman case [Volume 4/Annex 81/page 37]):
"171. In view of the above, there can be no manner of doubt that it is a settled law that
any order passed or sentence awarded by a Court Martial or other Forums under the
Pakistan Army Act, 1952, included as amended by the Pakistan Army (Amendment) Act,
2015, is subject ta the Judicial Review bath by the High Courts and this Court, inter alia,
on the ground of coram-non-judice, without jurisdiction or suife ring from mala jides
including malice in law. This would also hold true for any decision selecting or
transferring a case for trial be fore a Court Martial. .. ".
467. The highest court in Pakistan' s civil justice system thus considers it unarguable that
the civil courts have jurisdiction to review decisions emanating from Pakistan' s military
court system. Furthermore, the case law from Pakistan clearly sets out the grounds upon
which decisions may be challenged: (i) coram non judice; (ii) without jurisdiction; (iii)
malajides; and (iv) malice in law.
468. Each of the above grounds was considered by the Supreme Court of Pakistan at
paragraphs 90-93 in its more recent decision in Said Zaman Khan v Federation of
Pakistan through Secretary Ministry of Defence, Government of Pakistan (Civil Petition
No. 842 of2016) in the course of the Supreme Court's consideration of"the extent and
contours of the jurisdiction of Judicial Review available with the learned High Courts
under Article 199 of the Constitution in such like matters" (paragraph 72) [Volume
4/Annex 81/page 31]. In that case, 16 petitions for judicial review of
convictions/sentences handed down by military tribunals were brought before the
Supreme Court.
Page 133 of 147
469. The Court held (at paragraph 93) [Volume 4/Annex 81/pages 51-52]:
"9 3 . ... It is by now a well settled proposition of law, as is obvious from the judgments of
this Court, referred ta and reproduced hereinabove, that the powers of Judicial Review
under Article 199 of the Constitution of the Islamic Republic of Pakistan, 19 7 3, against
the sentences and convictions of the FGCM is not legally identical ta the powers of an
Appellate Court. The evidence produced cannot be analyzed in detail ta displace any
reasonable or probable conclusion drawn by the FGCM nor can the High Court venture
into the realm of the "merits" of the case. H owever, the learned High Court can always
satisfj; itself that it is nota case of no evidence or insuffi cient evidence or the absence of
jurisdiction".
470. Furthermore, the Supreme Court in the Zaman case stated as follows:
"103. The nature and extent of the power of Judicial Review in matters arisingfrom an
action taken under the Pakistan Army Act, 1952, has by and large been settled by this
Court through its various judgments, referred ta above. It now stands clarified that
neither the High Court nor this Court can sit in appeal over the .findings of the FGCM or
undertake an exercise of analyzing the evidence produced before it or dwell into the
"merits" of the case. However, we have scanned the evidence produced andproceedings
conducted by the FGCM The Convict pleaded guilty ta the charges, which were altered
ta not guilty by ope ration of the law. There was a judicial confession of the Convict
before a learned Judicial Magistrate, which was proved in evidence by the said Judicial
Magistrate, who appeared as a witness. Such confession was never retracted by the
Convict. Other relevant evidence, including eye witnesses of the occurrence was also
produced The prosecution witnesses made their statements on Oath and were crossexamined
by the Defending Officer. Opportunity ta produce evidence in defence was
given, which was declined The Convict was permitted ta address the Court and made a
statement, wherein he again admitted his guilt. In the above circumstances, it is not
possible for us ta conclude that it was a case of no evidence or insufficient evidence nor is
it possible ta hold that the conclusions drawn by the FGCM are blatantly unreasonable
or wholly improbable.
104. A perusal of the record of the FGCM reveals that in order ta ensure a fair trial and
ta protect the rights of the Convict, the relevant Rules were complied with. The Summary
of evidence had been taken and was laid be fore the FGCM, as is apparent from the
record of the proceedings thereof An Interpre ter was appointed with the consent of the
Convict in terms of Rule 91 of the Pakistan Army Act Ru les, 19 5 4. The nature of the
offence for the commission whereof, the Convict was charged, was explained ta him as
tao the possible sentence that would be awarded, as required by Rule 95. He was given
an opportunity ta prepare his defence and engage Civil Defence Counsel, if he sa desired,
in terms of Rules 23 and 24. On his exercising the option not ta do sa, a Defending
Officer was appointed in terms of Rule 81. He was given an opportunity ta abject ta the
constitution of the FGCM and ta the Prosecutor as well as the Defending Officer, in
terms of Section 104 and Rule 35 also. No objection, in this behalf, was raised The
Page 134 of 147
Members of the FGCM, the Prosecutor, the Defending Officer and the Interpreter were
duly sworn in, as required by Rules 36 and 37. The charge wasformally framed ta which
incidentally, the Convict pleaded guilty. The evidence was recorded on Oath. An
opportunity ta cross-examine was granted, which was availed off and an opportunity was
also given ta produce evidence in defence in terms of Rule 142, which was declined. He
was also allowed ta record his own statement and ta address the Court in terms of Rule
143 wherein he admitted his guilt. The sentence was passed, which has been confirmed in
accordance with Section 130 and the Appeal therefrom was dismissed by the Competent
Authority. It appears that the provisions of the Pakistan Army Act and the Ru les framed
thereunder, applicable ta the trial at hand have not been violated. Even otherwise, the
procedural defects, if any, would not vitiate the trial in view of Rule 13 2 of the Pakistan
Army Act Rules, 1954 nor did the High Court have the jurisdiction ta enter into the
domain of the procedural irregularities in view of the judgment, reported as Mrs. Shahida
Zahir Abbasi and 4 others (supra), especially as no prejudice appears ta have been
caused ta the Convict nor any such prejudice has been pointed out by the learned counsel
or specifically pleaded before the High Court". (emphasis in original)
[Volume 4/Annex 81/pages 59-62]
471. Accordingly, Pakistan respectfully submits that, in light of the fact that Pakistan's
domestic legal system provides for an established and defined process whereby the civil
courts can undertake a substantive review of the decisions of military tribunals in
Pakistan in order to ensure procedural faimess has been afforded to the accused, that the
Pakistani courts are, as the Court required in Avena, well suited to carrying out a "review
and reconsideration" that gives full weight to the effect of any violation of Article 36
VCCR 1963 that the Court may find against Pakistan in this case.
472. Furthermore, Pakistan's legal system allows for appropriate clemency procedures
(that are already being utilised by Commander Jadhav [Volume 2/Annex 35/pages 1-2]).
4 73. Pakistan further respectfully submits that, without prejudice to any of its other
submissions, should the Court consider that India is due any relief in the instant case,
then, consistent with its previous decisions in the death penalty/consular access cases, the
appropriate remedy would be effective "review and reconsideration", taking into account
the potential effects of any violation of Article 36 VCCR 1963. As stated at paragraph
467 above, the case law from Pakistan clearly sets out the grounds upon which decisions
may be challenged: (i) coram nonjudice; (ii) withoutjurisdiction; (iii) malafides; and
(iv) malice in law.
474. Togo further would be, with respect, beyond the legitimate functions of the Court -
as the Court has itself consistently held throughout its case law.
Page 135 of 147
VIII. CONCLUDING OBSERVATIONS
475. For the reasons set out in this Counter-Memorial, Pakistan requests the Court to
adjudge and declare that the claims of lndia, as advanced through its Application and its
Memorial, are rejected.
476. Pakistan reserves the right to supplement or amend the present submissions.
.--
KHA W AR QURÊSHI QC
Counsel for the Islamic Republic of Pakistan
13 December 201 7
Page 136 of 147
SUBMISSION
I have the honour to submit this Counter-Memorial and the documents exhibited hereto on
behalf of the Islamic Republic of Pakistan.
ASHT AR AUSAF ALI
Agent of the Islamic Republic of Pakistan
CERTIFICATION
I have the honour to certify that this Counter-Memorial and the documents exhibited hereto
are true copies and conform to the original documents.
Co-Agent of e Islamic Republic of Pakistan
Page 137 of 147
ANNEX: LIST OF EXHIBITS
(1) VOLUME 1 (ANNEXURES 1 - 10)
ANNEX DESCRIPTION
COMMENCEMENT OF PROCEEDINGS
1 08/05/2017 - India letter to Court filing application
2 08/05/2017 - Letter from Court to Pakistan
PROVISIONAL MEASURES PHASE
3 09/05/2017 - President' s letter to Prime Minister of Pakistan
4 15/05/2017 -Pakistan's written submissions to the Court at the
Provisional Measures Hearing
5.1 15/05/2017 - verbatim transcripts of the Provisional Measures
Hearing (India's oral submissions)
5.2 15/05/2017 - verbatim transcripts of the Provisional Measures
Hearing (Pakistan's oral submissions)
6 Ortler on the Request for the Indication of Provisional Measures
dated 18 May 2017
7 Ortler on the Request for the Indication of Provisional Measures
dated 18 May 201 7, Separate Opinion of Judge Can ça do Trindade
8 Ortler on the Request for the Indication of Provisional Measures
dated 18 May 2017, Declaration ofJudge Bhandari
9 08/06/2017 - Pakistan Ministry of Foreign Affairs ("MoFA") letter
to the Court responding to the Provisional Measures Ortler
ICJ PROCEDURAL ORDER
10 13/06/2017 - Court order fixing time limits for the filing of
pleadings
Page 138 of 147
(2) VOLUME 2 (ANNEXURES 11 - 44)
FACTUALBACKGROUND
NOTIFICATION BY PAKISTAN
11 25/03/2016 -Foreign Secretary of Pakistan summons the Indian
High Commissioner in Islamabad
12 25/03/2016 - MoFA notifies P5, press release
INDIAN CONSULAR ACCESS REQUESTS
13.1 25/03/2016 - Consular Access Request
13.2 30/03/2016 - Consular Access Request
13.3 06/05/2016 - Consular Access Request
13.4 10/06/2016 - Consular Access Request
13.5 11/07/2016 - Consular Access Request
13.6 26/07/2016 - Consular Access Request
13.7 22/08/2016 - Consular Access Request
13.8 03/11/2016 - Consular Access Request
13.9 19/12/2016 - Consular Access Request
13.10 03/02/2017 - Consular Access Request
13.11 03/03/2017 - Consular Access Request
13.12 31/03/2017 - Consular Access Request
13.13 10/04/2017 - Consular Access Request
13.14 14/04/2017 - Consular Access Request
13.15 19/04/2017 - Consular Access Request
13.16 26/04/2017 - Consular Access Request
13.17 24/07/2017 - Consular Access Request
13.18 20/09/2017 - Consular Access Request
13.19 09/10/2017 - Consular Access Request
FURTHER NOTIFICATION AND RESPONSE FROM PAKISTAN
14 21/03/2017-MoFANote Verbale
15 02/01/2017 -H.E. Sartai Aziz letter to the UN Secretarv-General
16 15/04/2016 - MoF A notifies the envoys of Arab League/ ASEAN
countries of the arrest of Commander Jadhav
CRIMINAL INVESTIGATION/ PROCEEDINGS
17 23/01/2017 -MLA Request- passport issue flagged
18 Commonwealth Human Rights Initiative booklet on First
Information Reports [N.B. this is a report from an Indian institute
explaining Indian FIRs. The regimes conceming FIRs in India and
Pakistan we understand are broadlv similarl
Page 139 of 147
CONVICTION/ SENTENCE
19 10/04/2017 - MoF AN ote Verbale
20 10/04/2017 - Inter Services Public Relations ("ISPR") press release
21 11/04/2017 - H.E. Sushma Swaraj says in Rajya Sabha that India
will regard execution as "pre-meditated murder"
22 13/04/2017 - India' s Ministry ofExternal Aff airs ("MEA'') official
weekly media briefing
23 14/04/2017 - H.E. Sartai Aziz press statement
24 17/04/2017 - Translation provided by In dia of a report carri ed by a
newspaper called Jehan
25 17/04/2017 - Official record of statement of Maj or-General Ghafoor
on the date referred to in the translation of the Jehan newspaper
report
26 18/04/2017 -H.E. Sushma Swaraj reported to have said that Jadhav
could not have been a spy because he had a valid Indian visa
27 20/04/2017 - MoF A Spokesperson press briefing
28 21/04/2017 -Indian Express article written bv Mr. Karan Thapar
29 Wikipedia page ofMr. Karan Thapar
30 Website oflndian Institute of Peace and Conflict Studies with
biography of Mr. Amarjit Singh Dulat
31 27/04/2017 - H.E. Sushma Swaraj letter to H.E. Sartaj Aziz
32 27/04/2017 -New Indian Express article concerning Indian
"defence experts" Seghal and Agha asserting Commander Jadhav is
"already dead"
33 19/06/2017 - MEA Letter to MoF A purporting to return the MLA
Request
34 20/06/2017 -Pakistan High Commissioner in New Delhi interview:
Commander Jadhav able to appeal for clemency
35 22/06/2017 - ISPR press release
36 17/07/2017 -Indian Express article concerning Indian "defence
experts" accusing Pakistan of "trying to hoodwink" the Court
37 Biographical details oflndian "defence expert" Praful Bakshi
38 11/10/2017 - Pakistan letter to Court nominating Justice Jillani
39 06/11/2017 - Registrar letter to Pakistan conveying that India has no
objections to Justice Jillani sitting as judge ad hoc
40 10/11/2017 -MoFA Note Verbale concerning the potential visit by
the wife of Commander Jadhav
41 13/11/2017 -MEA Letter to MoFA concerning the potential visit by
the wife of Commander Jadhav
LETTERS FROM PAKISTAN'S MINISTRY OF FOREIGN AFF AIRS TO INDIA 'S
MINISTRY OF EXTERNAL AFF AIRS ON THE PASSPORT ISSUE
42 31/05/2017 - MoFA letter to MEA
43 30/08/2017 -MoFA letter to MEA
44 26/10/2017 - MoF A letter to MEA
Page 140 of 147
(3) VOLUME 3 (ANNEXURES 45 - 74)
AUTHORITIES
CASELAW
45 Request for Interpretation of the Judgment of 31 Mar ch 2 004 in the
Case concerning Avena and Other Mexican Nationals (Mexico v
United States of America) (Mexico v United States of America),
verbatim transcript, 19/06/2008 at 3pm, page 4 7, paragraph 7
46 Obligations concerning Negotiations relating ta Cessation of the
Nuclear Arms Race and ta Nuclear Disarmament (Marshall Islands
v India), verbatim transcript, Thursday 10 March 2016 at 10am,
page 21, paragraph 9
47 Obligations concerning Negotiations relating ta Cessation of the
Nuclear Arms Race and ta Nuclear Disarmament (Marshall Islands
v India), verbatim transcript, Wednesday 16 March 2016 at 10am,
page 17, paragraph 13
48 Certain Norwegian Loans (France v Norway), Separate Opinion of
Judge Lauterpacht, 6 July 1957, page 53
49 Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Serbia and
Montenezro), verbatim transcript, 01/05/1996 at 10am, page 70
50 Certain Questions of Mutual Assistance in Criminal Matters
(Djibouti v France), Separate Declaration of Judge Keith, 4 June
2008, paragraph 5
51 Free Zones of Upper Savoy and the District of Gex (second phase),
PCIJ, Series A, No. 24, Ortler dated 6 December 1930, page 12
52 Free Zones of Upper Savoy and the District of Gex, PCIJ, Seri es
A/B, No. 46, Judgment of 7 June 1932, page 167
53 Electricity Company of Sofia and Bulgaria, PCIJ, Seri es A/B, No.
77, Judgment of 4 April 1939, Separate Opinion ofJudge Anzilotti,
pages 97-98
54 Conditions of Admission of a State ta Membership in the United
Nations (Article 4 of the Charter), advisory opinion of28 May 1948,
Individual Opinion of Judge Azevedo, page 80
55 Nottebohm (Liechtenstein v Guatemala), Dissenting Opinion of
JudgeKlaestad, 6 April 1955, pages 31-32
56 Nottebohm (Liechtenstein v Guatemala), Dissenting Opinion of
JudgeRead, 6 April 1955, pages37-38
57 Aerial Herbicide Spraying (Ecuador v Colombia), Reply ofEcuador
dated 3 1 Januarv 2011, paragraph 7. 51
58 Factory at Chorzow (Jurisdiction), PCIJ, Series A, No. 9, Judgment
dated 26 July 1927, page 31
Page 141 of 147
59 Legal Status of Eastern Green/and, PCIJ, Series A/B, No. 53,
Judgment dated 5 April 1933, Dissenting Opinion ofJudge
Anzilotti, page 95
60 Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States of America), Dissenting Opinion of
Judge Schwebel, 27 June 1986, paragraphs 268-272
61 Legality of the Use of Force (Serbia and Montenegro v Canada) -
verbatim transcript, 10/05/1999 at 4.15pm, paragraph 5
62 Legality of the Use of Force (Serbia and Montenegro v Canada) -
verbatim transcript, 12/05/1999 at 3.20pm, page 6
63 Legality of the Use of Force (Serbia and Montenegro v United
Kingdom) -verbatim transcript, 11/05/1999 at 3.00pm, paragraph
24
64 Legality of the Use of Force (Yugoslavia v United States of America)
- verbatim transcript, 11/05/1999 at 4.30pm, paragraphs 3 .17-3.18
65 Le gal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, advisory opinion of 9 July 2004, Separate
Opinion of Judge Elaraby, paragraph 3 .1
66 Oil Platforms (Islamic Republic of Iran v United States of America),
Judgment of 6 November 2003, paragraphs 27-30
67 Avena and Other Mexican Nationals (Mexico v United States of
America), Judgment of 3 1 March 2004
68 Factory at Chorzow (Claimfor Indemnity) (Merits), PCIJ, Series A,
No. 17, Judgment of 13 September 1928, page 47
69 Vienna Convention on Consular Relations (Paraguay v United
States of America), Aoolication dated 3 April 1998
70 Vienna Convention on Consular Relations (Paraguay v United
States of America), Ortler on the Request for the Indication of
Provisional Measures dated 9 April 1998
71 Vienna Convention on Consular Relations (Paraguay v United
States of America), Ortler Discontinuing Proceedings dated 10
November 1998
72 LaGrand (Germany v United States of America), Ortler on the
Request for the Indication of Provisional Measures dated 3 March
1999
73 LaGrand (Germany v United States of America), Judgment of27
June 2001
74 Avena and Other Mexican Nationals (Mexico v United States of
America), Memorial dated 20 June 2003
Page 142 of 147
(4) VOLUME 4 (ANNEXURES 75 - 81)
75 Avena and Other Mexican Nationals (Mexico v United States of
America), Ortler on the Request for the Indication of Provisional
Measures dated 5 F ebruarv 2003
76 Vienna Convention on Consular Relations (Paraguay v United
States of America), verbatim transcri pt, 07/04/1998 at 1 Oam,
paragraph 2.18
77 Ahmadou Sadio Diallo (Guinea v Democratic Republic of the
Congo), Judgment of 19 June 2012, Separate Opinion of Judge
Cançado Trindade, paragraph 52
78 LaGrand (Germany v United States of America), Application dated
2 March 1999, paragraph 15
79 LaGrand (Germany v United States of America), Memorial dated 16
September 1999 paragraph 7.02
80 Request for Interpretation of the Judgment of 31 Mar ch 2 004 in the
Case concerning Avena and Other Mexican Nationals (Mexico v
United States of America) (Mexico v United States of America),
Judgment dated 19 January 2009, paragraph 47
81 Said Zaman Khan v Pakistan (Civil Petition No. 842 of2016),
Decision of the Supreme Court of Pakistan handed down on 29
August 2016
Page 143 of 147
(5) VOLUME 5 (ANNEXURES 82 - 121)
TREATIES / STATUTES / UN RESOLUTIONS
82 Sections 154 and 164 of Pakistan's Code of Criminal Procedure
1898
83 Section 59 of the Pakistan Armv Act 1952
84 Section 3 of the Official Secrets Act 1923 (as applied in Pakistan)
85 India' s Passports Act 1967
86 India'sPassportRules 1980
87 Optional Protocol to the Vienna Convention on Consular Relations
1963
88 Vienna Convention on Consular Relations 1963
89 UN Security Council Resolution 1373 (2001)
90 ILC Yearbook 1957, volume 1, page 159, paragraph 16, column2
91 Official Records of the UN Conference on Consular Relations,
volume 1, page 3, paragraph 22
92 Sir Arthur Watts QC, The International Law Commission 1949-
1998 (1999), volume 1, pages 273-274
93 ILC Yearbook 1960, volume 1, pages 57-59
94 ILC Yearbook 1961, volume 1, page 288, paragraphs 71-73, column
2
95 ILC Y earbook 1961, volume 2, page 62, column 2
96 ILC Yearbook 1961, volume 2, page 141, column2
97 Official Records of the UN Conference on Consular Relations,
volume 1, page 338, paragraphs 8-9
98 UK's Police and Criminal Evidence Act 1984, Code C, paragraph 7
99 Ireland' s Criminal Justice Act 1984 (Treatment of Persans in
Custody in Garda Siochana Stations) Regulations 1987, regulation
14(4)
100 Geneva Convention relative to the Protection of Civilian Persans in
Time ofWar (1949) (the Fourth Geneva Convention), Article 5
101 Sir Arthur Watts QC, The International Law Commission 1949-
1998 (1999), volume 1, pages 298-299
102 Article 2 of the Charter of the United Nations
103 Articles 30, 31 and 41 of the Vienna Convention of the Law of
Treaties 1969
104 Article 102 of the Charter of the United Nations
105 Section 133B of the Pakistan Army Act 1952
106 Section 143 of the Pakistan Army Act 1952
107 Article 45 of the 1973 Constitution of Pakistan
ACADEMIC WRITINGS
108 Robert Kol b, 'General Princip les of Procedural Law' in
Zimmerman A, Oellers-Frahm K, Tomuschat C and Tams CJ (eds),
The Statute of the International Court of Justice: A Commentary
(2012), page 904
Page 144 of 147
109 Robert Kolb, Good Faith in International Law (2017), pages 133-
134
110 John Dugard SC, Sixth Report on Diplomatie Protection dated 11
August 2004, paragraphs 8-9
111 Adam I. Muchmore, 'Passports and Nationality in International
Law', l O U C. Davis J Int'l L. & Pol'v 301 (2004)
112.1 Luke T. Lee & John B. Quigley, Consular Law and Practice (l st
ed., 1961), pages 116-134
112.2 Luke T. Lee & John B. Quigley, Consular Law and Practice (l st
ed., 1961), pages 175-176
113 Edwin F. Glenn, Hand-Book of International Law (1895), page 134
114.1 Baron Alphonse Heyking, A Practical Guide for Russian Consular
Officers and All Persans Having Relations with Russia (2nd ed.,
1916), page 1
114.2 Baron Alphonse Heyking, A Practical Guide for Russian Consular
Officers and All Persans Having Relations with Russia (2nd ed.,
1916), page 129
115 do Nascimento GE,' The Vienna Conference on Consular Relations'
in The International & Comparative Law Quarterly, Vol. 13, No. 4
(Oct., 1964), oo. 1214-1254
116.1 John B. Quigley, William J. Aceves and S. Adele Shank, The Law of
Consular Access: A Documentarv Guide (201 l ), page 40
116.2 John B. Quigley, William J. Aceves and S. Adele Shank, The Law of
Consular Access: A Documentary Guide (2011 ), pages 45-46
117 Biswanath Sen, A Diplomat 's Handbook of International Law and
Practice (1965), page 233
118 Chusei Yamada, 'Priority Application of Successive Treaties
Relating ta the Same Subject Matter: The Southern Bluefin Tuna
Case' in Nisuke Andao, Edward McWhinney, Rüdiger Wolfrum
(eds), Jud~e Shi~eru Oda: Liber Amicorum (2002), page 770
119 Robert Kolb, The International Court of Justice (2013), pages 543-
544
120 James Crawford SC ( ed), Brownlie 's Princip/es of Public
International Law (8th ed., 2012), pages 568-570
121 Attila Tanzi, 'Restitution' in Max Planck Encyclopaedia of
International Law (2013) ( online)
Page 145 of 147
(6) VOLUME 6 (ANNEXURES 122 - 140)
OTHER MATER/AL
122 31/08/2015 - Indian Law Commission Report No. 262
123 First Optional Protocol to the ICCPR Recognising the Jurisdiction of
the Human Rights Committee ( entered into force on 23/03/1976)
124 List of signatories to the First Optional Protocol to the ICCPR
Recognising the Jurisdiction of the Human Rights Committee (as at
November 2017)
125 Second Optional Protocol to the ICCPR Toward the Abolition of the
Death Penalty ( entered into force on 11/07/1991)
126 List of signatories to the Second Optional Protocol to the ICCPR
Toward the Abolition of the Death Penalty (as at November 2017)
127 Resolution adopted by the Human Rights Council on 29 September
2017 on the question of the death penalty (A/HRC/RES/36/17)
128 UN General Assembly Resolution 62/149 adopted on 18 December
2007 (moratorium on the use of the death penalty) and Voting
Record
129 UN General Assembly Resolution 63/168 adopted on 18 December
2008 (moratorium on the use of the death penalty) and Voting
Record
130 UN General Assembly Resolution 65/206 adopted on 21 December
2010 (moratorium on the use of the death penalty) and Voting
Record
131 UN General Assembly Resolution 67/176 adopted on 20 December
2012 (moratorium on the use of the death penalty) and Voting
Record
132 UN General Assembly Resolution 69/186 adopted on 18 December
2014 (moratorium on the use of the death penalty) and Voting
Record
133 UN General Assembly Resolution 71/187 adopted on 19 December
2016 (moratorium on the use of the death penalty) and Voting
Record
134 Draft Articles on the Responsibility of States for Internationally
Wrongful Acts 2001, Articles 35-39, with commentaries
135 ICAO, Document 9303 on Machine Readable Travel Documents
(Parts I and II) (7th ed., 2015)
136 Extract from US Department of State' s Foreign Aff airs Manual (US
7 FAM 416.3)
137 Extract from the 'Consular Information' section of the website of
South Africa' s Department oflnternational Relations & Cooperation
138 'Practical Information' section of the International Court ofJustice's
website
139 Google Earth map marking, inter alia, the areas where Commander
Jadhav was based and where he was arrested (not to scale)
Page 146 of 147
140 Extract from the web site oflndia' s 7th Central Pay Commission
concerning the retirement ages of offi cers of the Indian Armed
Forces
(7) VOLUME 7 (ANNEXURES 141 - 161)
EXPERT REPORTS
141 Expert Report of Mr. David W estgate dated 8 N ovember 2017
142 Joint Expert Report of Brigadier Anthony Paphiti and Professor
Colonel Charles Garraway CBE dated 29 November 2017
STATEMENTS BY SENIOR OFFICIALS OF THE GOVERNMENT OF INDIA
143 Report in the Indian newspaper Economie Times of a speech made
by Mr. Ajit Doval at SASTRA University in India on 21 February
2014
144 Report of an interview given by Mr. Subramanian Swamy (30
September 201 7)
ESPIONAGE CASES
145 'Exchange of Communications between the President of the United
States and Maxim M Litvinov People 's Commissar for Foreign
A.flairs of the Union of Soviet Socialist Republics' in The American
Journal of International Law, Vol. 28, No. 1, Supplement: Official
Documents (Jan., 1934), PP. 2-11
146 Gorin
147 Gubitchev
148 Rudolph Abel
149 Gary Powers
150 Kaminsky
151 Barghoorn
152 Huang
153 Wu
154 XueFeng
155 Buryakov
156 Phan-Gillis
157 Novikov
158 Gusev
159 Fogle
THE 2008 BILATERAL AGREEMENT BETWEEN INDIA AND PAKISTAN
CONCERNING CONSULAR ACCESS
160 History of the 2008 Agreement File (from MoFA archives)
161 17/05/2017 - 2008 Agreement registered with UN Secretariat
Page 147 of 147