Rejoinder of the Islamic Republic of Pakistan

INTERNATIONAL COURT OF JUSTICE
THE JADHA V CASE
THE REPUBLIC OF INDIA v. THE ISLAMIC REPUBLIC OF
PAKISTAN
REJOINDER OF THE ISLAMIC REPUBLIC OF PAKISTAN
17TH JULY 2018
Page 1 of74
Contents
INTRODUCTION AND EXECUTIVE SUMMARY ........................................................................... .4
I. INDIA'S REPLY IS REPLETE WITH MISREPRESENTATIONS AND IRRELEVANT
DIVERSIONS ......................................................................................................................................... 9
II. INDIA HAS DELIBERATELY MISREPRESENTED THE MILITARY LAW EXPERTS'
REPORT ............................................................................................................................................... 11
(A) THE THREE DISTORTIONS AND MISREPRESENTATIONS ....................................... 11
The First Distortion ....................................................................................................................... 11
The Second Distortion ................................................................................................................... 12
The Third Distortion ..................................................................................................................... 13
(B) PAKISTAN'S HIGH COURT AND SUPREME COURT ARE CONTINUING TO
EXERCJSE A ROBUST REVIEW JUR1SDICTION IN RESPECT OF THE MILIT ARY
COURTS ........................................................................................................................................... 14
III. INDIA CONTINUES TO REFUSE TO ENGAGE WITH THE PASSPORT ISSUE ............. 16
(A) THE SIX REQUESTS TO INDIA SINCE 31 MAY 2017 TO ADDRESS THE PASSPORT
ISSUE ................................................................................................................................................ 16
(B) INDIA'S STANCE IS MANIFESTLY UNTENABLE ........................................................ 19
(C) PAKISTAN IS NOT ALONE IN QUESTIONING INDIA ON THE PASSPORT ISSUE.24
The Quint~ 5 Janua,y 2018 .......................................................................................................... 24
Frontline-31.January 2018 ......................................................................................................... 26
(Jbservations ................................................................................................................................. 27
IV. INDIA HAS MISREPRESENTED THE BILATERAL 2008 AGREEMENT ON
CONSULAR ACCESS ......................................................................................................................... 29
V. PRIMA FACIE CASES OF ESPIONAGE ARE AN EXCEPTION TO ARTICLE 36 VCCR
1963 AS A MATTER OF CUSTOMARY INTERNATIONAL LAW ................................................ 32
(A) IDENTIFICATION AND/OR DETERMINATION OF RULES OF CUSTOMARY
INTERNATIONAL LAW ................................................................................................................ 32
RespectedAcademic Commentators ............................................................................................. 32
i). The Two Elements of a Rule of Customary International Law ................................................. 33
ii). The JLC 's Draft Conclusions on the Identification o.fCustomary International Law ............. 37
iii). Assessment of the Evidence .................................................................................................... 38
iv). Application of underlying principles of Public International Lcm1 .. ....................................... 38
v). Consideration of the Availability/Lack ofAvuilability of Evidence in the Circumstances ...... 40
vi). Consideration of the Nature of the Rule of Customary International Law contended.for .. .... 41
vil). The Court must conduct separate inquiries as to 'general praclice' and 'opinio juris' ....... 42
viii). Assessment of 'General I'ractice ' ......................................................................................... 43
ix). The Court must asses.1 ail avai!able general practice as a whole ......................................... .43
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x). Inconsistency in practice does not necessarily require the practice to be given reduced weight
....................................................................................................................................................... 44
xi). What is meant by 'general practice ' ...................................................................................... .46
xii). Which States have relevant practice? ................................................................................... .46
x1.1.1 r/i · A ssessment oi f 'Op 1.n 1.0 J;u r1.s ' ............................................................................................... . 49
xiv). Failure to react over lime as evidence as 'opinio juris' ....................................................... 52
Observations ................................................................................................................................. 53
(B) INDIA'S MISCONCEIVED CRlTICISM OF CERTAIN EXAMPLES OF ESPIONAGE
CASES CITED BY PAKISTAN ...................................................................................................... 54
(C) INDIA WRONGL Y SUGGESTS THAT PROFES SOR LEE W AS INCONSISTENT OR
CONTRADICTED HIS ST ATEMENT THA T ESPIONAGE W AS A "FREQUENT EXCEPTION''
TO CONSULAR ACCESS ............................................................................................................... 56
VI. INDIA HAS FAILED TO ENGAGE WITH PAKISTAN'S ARGUMENTS ON THE
OPTIONAL PROTOCOL ..................................................................................................................... 58
(A) THE COURT'S NOTIFICATIONS TO STATES PARTIES TO VCCR 1963 AND THE
OPTION AL PROTOCOL ................................................................................................................. 60
(B) lNDIA WAS A DRIVING FORCE BEHIND THE ADOPTION OF THE OPTIONAL
PROTOCOL AT THE UN VIENNA CONFERENCE ON CONSULAR RELATIONS ................ 61
(C) "NOTIFICATION" ............................................................................................................... 63
Vil. DISTRACTIONS GENERATED BY INDIA .......................................................................... 65
(A) INDIA'S UNFOUNDED ALLEGATION THA T COMMANDER JADHA V WAS
"KIDNAPPED FROM IRAN' ........................................................................................................... 65
(B) TELLINGL Y, IN DIA DIO NOT T AKE THE OPPORTUNITY TO RAISE THE MA TTER
OF THE ALLEGED "KIDNAPPING" WITH IRAN AT THE HIGHEST LEVELS ...................... 66
CONCLUDING OBSERVATIONS ..................................................................................................... 68
SUBMISSION ....................................................................................................................................... 69
CERTIFICATION ................................................................................................................................. 69
ANNEX: LIST OF EXH1BJTS ............................................................................................................. 70
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INTRODUCTION AND EXECUTIVE SUMMARY
1. On behalf of the Islamic Republic of Pakistan ("Pakistan"), it is an honour to present this
Rejoinder to the Court pursuant to the Procedural Order dated 17 January 2018 [Volume
1/Annex 5].
2. Pakistan adopts for the purposes of this Rejoinder any defined terms that were so defined
in its Counter-Memorial filed with the Court on 13 December 2017 ("'the CounterMemorial").
3. In this Rejoinder, references to annexures are given in the form
[volume/annex/page/paragraph]. References to exhibits that were previously included
with the Counter-Memorial are given in the form [CM/volume/annex/page/paragraph].
4. As will be elaborated upon below there are at least 7 fondamental concerns relating to
the Reply which India served on 17 April 2018 ("'the Reply''), purportedly to "fully
rebut" the Counter-Memorîal served by Pakistan on 13 December 2017 [Volume
1/Annex 3/page 3/paragraph 5).
5. lndia has used the Reply (with great respect) to misrepresent and distract. Pakistan will
show how hereinbelow. Whilst it is India that should apologise profusely for its conduct
as demonstrated below, Pakistan feels it must apologise in advance if there is any
trenchant terminology used to describe India's conduct. lt is rare for brazen wrongdoing
or mîsrepresentation to occur, and that is why the Court has not yet adjudicated on
illegality/clean hands issues. Unfortunately, Pakistan is compelled to lay this bare.
6. Pakistan re-iterates its submissions as reflected in the Counter-Memorial. Not a single
word within the Reply does anything but fortify those submissions.
The Seven Key Errors (at best) and Omissions in the Reply
(1). India ( exceptionally) obtained permission for a further round of pleadings which has
led to yet more delay - India having initiated these proceedings invoking extreme
urgency and seeking provisional measures without a hearing on 8 May 2017. Far from
rebuttal, the Reply is regrettably replete with misrepresentations, invective and irrelevant
(albeit inflammatory and unfortunate) diversions.
(II). Tndia, most unfortunately, brazenly and repeatedly misquotes the text from preeminent
and highly respected British Military Law Experts to found its distortions with
regard to the Pakistani Mîlitary Courts system.
lndeed, the Pakistani High Court and Supreme Court that India wrongly disparages bas
( on at least 3 occasions since 8 May 201 7 and, in one case within 1 day of an application
Page 4 of 74
being made) stayed death sentences imposed by the Military Courts, as well as setting
as ide the death sentence in one case 1•
There is absolutely no basis to suggest the Pakistani Courts would not have operated or
will not operate in a similar manner in the case of Commander Jadhav, and provide an
effective review process if warranted. Y et, instead of having recourse to effective
domestic remedies ( or even the mechanisms prescribed by the Optional Protocol
[CM/Volume 5/Annex 87]), India sought to ambush Pakistan and grandstand before the
Court in May 2017. Why? It seems so as to use the Court as a political theatre and enable
the gross mischaracterisation of the ( otherwise understandable) Provisional Measures
Ortler by its media.
(III). India persists in distorting Pakistan's repeated requests for enquiry and information
from the Indian authorities regarding the lndian passport Commander Jadhav was
carrying and using in a false Muslim name ("the Passport Issue"). What would be a
simple matter to address is the subject of obtuse (albeit highly revealing and
incriminatory) distraction by India. Yet again, the independent expert report of an
eminent British expert (who had also trained the Indian authorities) is belittled, without
any response toits clear, cogent and compelling conclusions. India refuses to explain
how Commander Jadhav obtained and extensively used an authentic Indian passport,
issued in a Muslim name (the material and overwhelming falsity in the said document).
Lest there be any temptation to lend any credence to India's suggestion that Pakistan's
requests in this regard are "mischievous ... propaganda" [Volume 1/Annex 17/pages 2-
3/paragraph (iv)], it is notjust Pakistan that is asking these questions. Senior and
respected lndianjournalists are also questioning why India will not address this matter.
In addition to their questions being ignored, the journalists have been criticised by the
Government of India [Volume 1/Annex 29], as well as lambasted in the Indian media
and on social media for being 'traitorous' 2•
1 'Muhammad Imran' was convicted and sentenced to death on 28 June 2015 by the Military Courts. A writ
petition was filed before the Peshawar High Court under Article 199 of the Constitution of Pakistan 1973
challenging the conviction and sentence. Following a hearing on 2 March 2017, the Chief Justice of the
Peshawar High Court gave judgment on 25 May 2017 that it was nota case ofno or insufficient evidence such
as to justify the quashing of the conviction. However, based upon his finding that the Military Comts Jacked
legal jurisdiction to award the death penalty in respect of the particular charges against 'Muhammad Imran', the
Chief Justice of the Peshawar High Court set asidc the death sentence and remanded the matter to the Military
Courts (Volume 1/Annex 32/page 25/paragraph 38(3))
2 On 3 February 2018, Mr. Praveen Swamî (see paragraphs 89-94 below) posted on Twitter a copy of comments
concerning him being made on a public forum following the publication of his article [Volume 1/ Annex
26/page 91- The comments included:
"! request (àJME4/ndia ta wTest '.<(praveenswamifor spreadingfake news to hurl nalional interes/s_
'ii)S11shmaSwaraj éc]:;HMO!ndia''
"'ifpraveenswami Pakistani news nelwork were celebraling. Why lndia have tu tolerate Traitors like you? How
much /SI paid u? Or paki hoss Chine,'.> Folks -.,vhen u see this guy on slree! uf lndia, do_i11sticefor sake C?(
kufbhusan & hisfamily ,.
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------1
1
India knows full well that its dilemma is acute in this regard. Whatever it says, it cannot
truthfully explain the Passport Issue without implicating itself as the puppeteer of
Commander J adhav - or say he has used a "forged" [Volume 1/ Annex 17 /pages 1-
2/paragraphs (i) and (iv)] travel document and would therefore be viewed as a criminal
in mostjurisdictions. India's hands are anything but clean, its conduct anything but legal,
and its absence of good faith is writ large in this matter. These are ail unfortunate
submissions to make, but they must be made.
(IV). India deliberately misreads the bilateral 2008 Agreement [CMNolume 7/Annex
160/page 37] between India and Pakistan (entered into at the instigation ofindia and
expressly addressing consular access) to negate the natural and ordinary meaning of
Article (vi) thereof - by 'cutting and pasting' the said text in a cannibalised form within a
completely separate provision, namely Article (v) of the 2008 Agreement.
(V). With regard to the existence of an 'espionage exception' as a matter of Customary
International Law as at 1963, Jndia sidesteps the statements of leading academic
commentators from 1961 and 1965 (including the respected commentator Biswanath Sen
- no Jess a persan than the Honorary Legal Adviser to India's Ministry of Extemal
Affairs (1954-1964) [CMNolume 5/Annex 1171). By way ofhollow riposte, India
invokes a text written by Professor Luke T. Lee in 1966 to somehow suggest he had
changed his mind in respect of the observation he had made in his seminal text in 1961
that "ajrequent exception to the consular right to prolect nationals and visit them in
prison is the case ofspies" [CMNolume 5/Annex 112.1/page 125/first paragraph]. A
proper (as opposed to slanted) reading demonstrates he did no such thing. Consistent
therewith, the unsurprisingly fe\v examples of 'espionage' which emerged into the public
domain involving the major powers, as commented upon in the Counter-Mernorial,
evidence (at the very least) a lack of acceptance of any obligation to provide consular
access in cases where prima Jacte evidence of espionage exists. All India can do is
misrepresent those examples.
(VI). India fails to engage with issues concerning the Optional Protocol [CM/Volume
5/Annex 87] the very issues w'hich India (and ail State Parties) were invited by the
Com1 to address on 18 January 2018 [Volume 1/ Annex 9) (following a similar invitation
from the Court on 20 November 2017 in respect of the VCCR 1963 itself [Volume
1/ Annex 8)), but which lndia bas chosen to ignore. Jndia never notified Pakistan of a
dispute vis the Optional Protocol, which could have engaged mandatory alternative
dispute resolution processes for at least 2 months. Instead, for no good reason, India
waited for more than 1 year, and thcn launched its arnbush before the Court.
"Why isn 't this s.vine hutc:hered in broad daylight with the telecast beaming live in Napakistan"
"Swamy may he on !SI parole. Reg11/arly ge1s/imds 1"
Page 6 of 74
(VII). In its Reply, India asserts (at paragraph 29) that Commander Jadhav was
"kidnappedfrom Iran" (sometime in early 2016), and (at paragraph 134) that his
confession as broadcast to the world at large has been "examined by experts". These are
irrelevant and unsustainable assertions. Yet, as ifto underline their 'make
weight/distracting nature', nothing remotely resembling credible evidence is deployed.
7. India devotes an entire section in the Reply (Section III/paragraphs 52-77) to castigating
Pakistan for requiring the mother and wife of Commander Jadhav to speak in English,
change their clothing and remove metal objects when visiting Pakistan to meet him on 25
December 2017. India overlooks the express written consent provided for security
measures [Volume 1/Annex 13], which are neither improper nor oppressive in the
context of a visit to a convict3• India advances serious (but otherwise absurd and
inappropriate) allegations as to mistreatment of Commander Jadhav to suggest that, when
he met his wife and mother, he was "not in his senses and was under the i~fiuence of
something" (perhaps suggesting he was drugged) or "looking pujjy and swollen"
(perhaps suggesting he was tortured) (Reply/ Annex 4/paragraphs 14 and 17). lndia, in its
Reply, asserts (at paragraph 70) as follows:
"Upon return, the mother and wife conveyed that .Jadhav appeared under considerable
stress and was speaking in an atmosphere of coercion. As the meeting evolved, it was
clear to them that his remarks were tutored by his captors and designed to perpetrate the
fa/se narrative of his alleged aclivities. His appearance also raised questions of his
health and well-being".
8. The absurdity oflndia's position is compounded when it is observed that India is
compelled to ignore the clear report that was issued by an independent German
physician, Dr. Uwe Johannes Nellessen (a Senior Consultant at the Saudi-German
Hospital in Dubai [Volume 1/Annex 11]) who undertook a very thorough medical
examination of Commander Jadhav on 21 December 201 7. On 22 December 201 7, the
leamed physician provided a 14-page medical report ("the lndependent Medical Report")
which included blood tests and heart scans [Volume 1/Annex 12]. He remarked (on page
3), inter alia, that Commander Jadhav was in "excellent hea[l]thy condition". The
conclusions of the report were shared with India and the world at large on 25 December
201 7 by Pakistan. Presumably India believes that Commander J adhav was kept in
excellent health up until 21 December 2017, and then subjected to torture so as to force
him to see his wife and mother?
9. Pakistan observes (with regret) that, in some part, it apprehended (rightly, albeit
unfortunately) that India would seek to ncgatively spin the humanitarian visit and gesture
1 Certain States, such as the United Kingdom !Volume 1/Annex 141, have published detailed rules/guidance on
the regulation of prison visits to convicts indicating that matters such as security scans (with metal detectors),
removal ofjewellery, no contact (pai1icularly as regards high security prisoners), signature of written
dec]arations by visitors, and continuous monitoring of meetings are cornmonplace.
Page 7 of74
of goodwîll on Christmas Day in whatever way possible (however unfair and
implausible) (see Pakistan's Note Verbale to India dated 24 November 2017 at [Volume
1/Annex 10/penultimate paragraph]). By colourful and baseless assertions, India
attempts to pour scorn upon the goodwill gesture, as well as the contemporaneous
comments made by Commander Jadhav's mother as to his positive state ofhealth
(perfectly consistent with the lndependent Medical Report prepared 3 days prior to her
visit). In any event, these are not relevant matters, albeit Pakistan addresses them in this
summary to make it plain that the 'spin' thereupon is not accepted.
1 O. Pakistan addresses each of the Seven Errors/Omissions in further detail below.
Page 8 of 74
I. INDIA'S REPL Y IS REPLETE WITH
MISREPRESENTATIONS AND IRRELEV ANT DIVERSIONS
11. India had stated, in its letter to the Court dated 10 January 2018, that it intended to utilise
the Reply to ''.fully rebut" the Counter-Memorial [Volume 1/Annex 3/page 3/paragraph
5]. Pakistan took this statement at face value. In this context Pakistan notes that in its
Counter-Memorial (filed on 13 December 2017), it was stated (at paragraph 6) that:
"The key arguments identified herein have previously been raised at the Provisional
Measures hearing on 15 May 2017''.
12. Pakistan expected India would at least attempt to respond in some form to these
arguments in its Memorial (if nothing else to 'knock them down' (were that possible) or
to enable the expeditious determination ofthis matter by the Court, as has been
repeatedly sought by Pakistan since 15 May 20174). India did no such thing. In any
event, by the time of the filing of its Reply on 17 April 2018, India had been on notice of
Pakistan' s key arguments in the case for a period of approximately 11 months, and had
the benefit of Pakistan's elucidation of those arguments as presented in the CounterMemorial
for a period of approximately 4 months.
13. Yet, despite having had ample time in which to understand and prepare a substantive
response to Pakistan's arguments in its Memorial, India sought the Court's permission
for a further round of pleadings [Volume 1/ Annex 1]. In an effort to promote effective
dispute resolution, Pakistan, in its letter of 5 J anuary 2018, questioned the need for a
further round of pleadings, and also suggested an expedited time frame in any event to
limit further delay [Volume 1/Annex 2].
14. By a letter dated 19 December 2017 [Volume 1/Annex 1/page 2], India expressly
asserted that the Counter-Memorial raised "issues <~ffact and law that may not
necessarily have been anticipated by India and considered in the Memorial filed by
India". (emphasis added)
15. By a further letter dated 10 January 2018, India asserted that Pakistan, in its CounterMemorial,
had for the first time "set out its defence and in doing so has raised various
issues of fac! and law'' [Volume 1/Annex 3/page 2/paragraph 2] which "would have to
be Ii!lh!.. rebutted' [Volume 1/ Annex 3/page 3/paragraph 5]. ( emphasis added)
16. lt was on the basis oflndia's purportedjustification of the need for a further round of
pleadings to deal with issues "offàct and law'' that the Court, by its order dated 17
January 2018 [Volume 1/ Annex 5], authorised the submission of a Reply by lndia and a
Rejoinder by Pakistan (with 3 months for cach, as sought by India).
17. Yet, Pakistan notes with regret that, despite the characterisation of the position by India
as set out abovc, India has refused and/or failed to engage with and/or address highly
4 See !CM/Volume 1/Annex 5.2/page 10/paragraph 181 and !Volume 1/Annex 2/page 3/paragraph 13) and
!Volume 1/Anne:\ 4/page 3/paragraphs 12-131
Page 9 of 74
··~··
material issues of fact and law raised by Pakistan. In its Reply, India's position is
illuminated by its bald assertion (at paragraph 39) that:
"India does not consider if necessary to reply in any degree of detail to the litany of false
allegations being made by Pakistan".
18. Pakistan makes no false allegations. Not least, it expects India to ex plain the critical
Passport Issue (and is evidently not alone in seeking such an explanation - see Section
IIl(C) below).
19. India is unable to restrain itself in otherwise 'spinning' Pakistan's case. In its Reply,
lndia asserts (at paragraph 5) that Pakistan:
"rightly points out that this Court is not a criminal appellate court, and yet il invites by
ils conduct a retrial of the accused, which would be inevitable if this Court were to
examine the truthfulness of its litany of allegations against Jndia and Jadhav".
20. Pakistan is not the party seeking an order for 'acquittai or release' (see lndia' s
Application/paragraph 60(4) and India's Memorial/paragraph 214(iii)). Pakistan, again
and again, pointed out that the Court expressly disavows any role akin to a criminal
appellate jurisdiction [see CMNolume 1/Annex 4/pages 8-13/paragraphs 26, 32, 38,
47 and CMNolume 1/Annex 5.2/pages 16-17 and Counter-Memorial paragraphs
391, 396-411) - for very good reasons (including being inundated by 11 th hour
applications from multiple jurisdictions if it were to seek to embrace such arole).
21. Pakistan's submissions in the Counter-Memorial cannot conceivably be said to invite a
re-trial. Pakistan provided some background factual context (admittedly irrelevant in
reality to the dispute) simply to eviscerate Indîa's ridicule of Pakistan's legal processes.
In every other respect, the Counter-Memorial raises issues of fact and law which India
seemed to have accepted required an answer ~ but when it came to providing an answer,
India has no answer or refuses to give an answer. lnstead, evasion is the major
component of the Reply (with respect).
Page 10 of 74
II. INDIA BAS DELIBERATELY MISREPRESENTED THE
MILITARY LAW EXPERTS' REPORT
22. In its Counter-Memorial, Pakistan set out (at paragraphs 444-446) the conclusions
reached in the review undertaken by two pre-eminent independent UK military law
experts (Brigadier (Rtd) Anthony Paphiti and Professor Colonel (Rtd) Charles Garraway
CBE ("the Military Law Experts'')) of a representative example of the laws and
procedures of certain UN Member States to address questions including State practice
regarding the jurisdictional basis, process and procedure of Military Courts ("the Military
Law Experts' Report"). The full report was produced as Annex 142 of the CounterMemorial.
23. There are three critical respects in which India has deliberately misquoted the Military
Law Experts' Report. One al one could be attributed to an error. Two misquotes, perhaps
sloppiness. Three crosses the threshold into the rea1ms of distortion and impropriety -
unfortunate (at best) because it is so transparent upon a careful reading of the Military
Law Experts' Report5•
(A)THE THREE DISTORTIONS AND MISREPRESENTATIONS
The First Distortion
24. In the Military Law Experts' Report, Brigadier Paphiti and Colonel Garraway concluded
(at paragraph 3(d)) as follows [CMNolume 7/Annex 142/page vii]:
"ln the case of Pakistan, the "judicial review "function of the Civilian Courts ... appears
to provide a potential effective safeguard against manifest failings in due process".
25. In its Reply, India asserts (at paragraph 19) as follows:
"Finally, Pakistan seeks to salvage the poor reputation of its Military Courts, in the
matter of following due process, in the international community by relying upon a report.
The report, however, recognises that ils system has manifèst failings. Pakistan/ails to
deny any of the allegations of the manner in which the military justice systemjimctions,
and for which il hasfaced criticisms in reports o.f international agencies ofcredibility
and repute". (emphasis added)
26. Further, India, in its Reply, asserts (al paragraph 154(d)), when quoting from the Military
Law Experts' Report, as follows:
'13y a Note Verbale dated 5 June 2018 IVolume 1/Annex 6J, in the interests of fairncss, lndia was given an
opportunity to rnnfirm the accuracy of the contents of the Reply on or by 21 June 2018 to en able the Rejoinder
to be finalised in the light ofany reply. Belatcdly, hy a lv'ore Verbale dated 27 June 2018 JVolume 1/Annex 7],
In dia failed and/or rcfused to provide any substantive response, simply characterising the qucries in respect of
the Reply and its accuracy as "inapprapriale and irrelevant".
Page 11 of 74
"The experts notice that judicial review by the constitutional courts is available and in
their view it "appears to provide a potential effective safeguard against the manifest
failings in due process ". India offers two comments on matters that are apparent in this
guarded statement; Firstly, it acknowledges that in the system there are "manifèst
failings" ... " ( emphasis added)
27. Thus, it can be seen that India has erroneously added the word "the" before the words
"manifestfailings". The effect of the addition of the extra word is to materially alter the
meaning of the sentence - from, on the one hand, the potential for the revîew of manifest t=
failings (the meaning evidently intended by the Military Law Experts) to, on the other
hand, misleadingly suggesting that the experts had identified and accepted that there
were manifest failings in Pakistan's judicial system (the meaning that India would
doubtless have preferred). The alteration by lndia of the conclusions expressed in the
report is simply unacceptable.
28. As can be seen from paragraph 154(d) oflndia's Reply (as cited above), having
materially altered the conclusions of the Military Law Experts, India then uses the altered
meaning in order to attack the Military La\v Experts' Repo1i itself and Pakistan's
reliance upon it
29. Leaving the truth behind, lndia, in its Reply, asserts (at paragraph 155) as follows:
"This report of the experts hardly supports Pakistan 's challenge ta India 's position - on
the contrary the Court noi-i' has a reportfiled by Pakistan 1vhich substantially co11firms
what India has said about the failings in the system of trial by Military Courts".
30. India is only able to make that assertion as a result of its having made material alterations
to the Military Law Experts' Report in order to falsely misrepresent its conclusions.
The Second Distortion
31. ln the Military Law Experts' Report, Brigadier Paphiti and Colonel Garraway concluded
(at paragraph 3(a)) as follows [CMNolume 7/Anncx 142/page vi]:
"While most Military Courts do havejurisdicfion to try the civilian q[fences ofespionage
and terrorism, in addition to related military offences of a similar nature, this is often
limited to offences committed bypersons already subiect ta Service jurisdiction".
( emphasis added)
32. India, in its Reply, asserts (at paragraph 154(b)), when quoting from the Military Law
Experts' Report, that:
"ln the Conclusion as is sel out in Paragraph 3 oftheir report. lhey note !hat the
jurisdiction (fMilitary Cauris lo tly âvilian o.ffences such as espionage and lerrorisrn
(i.e. ofJènces beyond the law applicable lo members o(lhe Armed Forces). their
Page 12 of 74
jurisdiction is limited to persans already subject to Service jurisdiction". ( emphasis
added)
33. Thus, it can be seen that India has erroneously omitted the word "often" before the word
"limited". The effect of the omission is to materially alter the meaning of the sentence -
from, on the one hand, the fact that such a limitation is not universal and (perfectly
legitimately) does not appear in the military justice systems of some States (the meaning
evidently intended by the Military Law Experts) to, on the other hand, a hard and
universal limitation imposing an obstacle to the prosecution of a civilian (which India
still, in the face of all evidence and without any attempt at substantiation, daims
Commander Jadhav is) for espionage and terrorism offences (the meaning that India
would doubtless have preferred). The alteration by India of the conclusions expressed in
the report is thus deliberate, misleading and wholly improper.
The Third Distortion
34. ln the Military Law Experts' Report, Brigadier Paphiti and Colonel Garraway concluded
(at paragraph 3(f)) as follows [CMNolume 7/Annex 142/page viiJ:
"We are aware ofgeneral criticisms made of the Courts which try terrorism offences
bath in India and Pakistan. We are not in a position ta consider whether those criticisms
are va/id without further extensive research and review". ( emphasis added)
35. India, in its Reply, asserts (at paragraph 154(e)), when quoting from the Military Law
Experts' Report, that:
"Finally the experts close with a note of caution stating that lhey are aware of the
criticisms made of the courts which try terrorism <~ffences. but at [sic] that they were not
in a position "to con.si der whether those criticisms are valid without further extensive
research and review "".
36. It is apparent that India is implying that the Military Law Experts are referring onlv to
the Pakistani Military Courts, whereas, as is readily apparent, reference \-Vas being made
to criticisms '"both in Jndia and Pakistan" (ernphasis added). India thus manufactures
another basis upon which to undermine the Military Law Experts - but only by
deliberately misreading the first sentence of the relevant paragraph in order to
mischaracterise thcir conclusions.
37. Why did Jndia engage in such an obvious exercise to misrepresent the Military Law
Experts' Report - because it has no answer, let alone a sustainable answer, to the
contents thereof.
38. In addition, India plainly recognises that the presence of an effective rcview jurisdiction
within the legal system of Pakistan, in truth, renders its application bcfore the Court
futile (at best) as lndia persists in seeking "in the leas(' [CM/Volume 1/Annex 5. 1/page
42/paragraph 951 an order of acquittai or release of Commander Jadhav from the Court.
Page 13 of74
The Courts of Pakistan can and will provide review of the Military Courts when their
jurisdiction is engaged. lt is simply wrong for India to suggest otherwise.
(B)PAKISTAN'S HIGH COURT AND SUPREME COURT ARE CONTINUING TO
EXERCISE A ROBUST REVIEW JURISDICTION IN RESPECT OF THE
MILITARY COURTS.
39. In its Reply, India (at paragraphs 26 and 152-157) appears to suggest, even in the face of
the Military Law Experts' Report, that Pakistan's civil courts (which have consistently
held that they possess jurisdiction to judicially review any order emanating from the
Military Courts) are an ineffective means by which Pakistan may enable "review and
reconsideration" in respect of Commander Jadhav.
40. Pakistan refrains from engaging in a comparison between the Indian Supreme Court and
the Supreme Court of Pakistan (as India purports to do in its Reply at paragraphs 23-25
and l 54(d)). They are both respected institutions, and any attempt at comparison is
meaningless in this context.
41. Pakistan hereby places before the Court three examples of the civil courts of Pakistan
continuing to actively and robustly exercise their jurisdiction in respect of death
sentences issued by the Milîtary Courts since 18 May 2017 (when the Provisional
Measures Order was made).
42. ln August 2016, a writ petition was filed before the Pesha\var High Court by Fazal
Ghafoor, the father of• Fazal Rabi', challenging the conviction and death sentence
handed down by the Military Cowi in respect of his son and seeking, by way of interim
relief, that the death sentence be suspended pending the final disposa] of that writ
petition. On 29 August 2016, the Chief Justice of the Peshawar High Court issued an
order suspending the operation of the death sentence in respect of 'Fazal Rabi'. On 20
September 2016, the stay order was continued by a further order of the Chief Justice of
the Peshawar High Court [Volume 1/ Annex 33]. On 25 May 2017, the ChiefJustice of
the Peshawar High Court gave judgment dismissing the Vv'Tit petition. ln June 2017, the
father of 'Fazal Rabi' filed a petition seeking lcave to appeal to the Supreme Court of
Pakistan against the judgment of the Pcshawar High Comi [Volume 1/Annex 34]. On 19
July 2017, the Supreme Court issued an order stating "Notice.for a date in office. In the
meantime, the petitioners6 shall not be executer:f' [Volume 1/ Annex 35/page 1 J -
thereby staying the carrying out of the death sentence in respect of 'Fazal Rabi'.
43. In January 2016, a writ petition was filed before the Lahore High Court by Muhammad
Liaqat, the fathcr of' Shafaqat Farooq i', challcnging the conviction and death sentence
handed down by the Military Court in respect ofhis son. On 13 December 2016, the
6 The refcrcnce to 'petitioner' is clearly intended to be a reference to the convicted person and the benefïciary or
the stay ordcr
Page 14 of 74
· .. ·~
~ ..
Lahore High Court gave judgment dismissing the challenge. A petition was subsequently
filed by Muhammad Liaqat seeking leave to appeal to the Supreme Court of Pakistan
against thejudgment of the Lahore High Court [Volume 1/Annex 36]. On 22 January
2018, a two-judge bench of the Supreme Court issued an order stating "Notice. ln the
meantime, the sentence of death shall not be executed till further orders" [Volume
1/Annex 37/page 1/paragraph 2J - thereby staying the carrying out of the death
sentence in respect of 'Shafaqat Farooqi'.
44. On 8 May 2018, the father of 'Burhan-ud-Din' filed a writ petition before the Peshawar
High Court challenging his son's conviction/sentence and seeking, by way of interim
relief, that "operation of execution of death sentence of convict/ detenue namely Burhanud-
Din may kindly be suspended till the final decision of instant writ petition" [Volume
1/Annex 38/page 4]. On 9 May 2018, the Chief Justice of the Peshawar High Court
issued an order stating "The execution of death sentence awarded to the convict by the
Military Court is suspendecf' [Volume 1/ Annex 39] - thereby staying the carrying out of
the death sentence in respect of 'Burhan-ud-Din' within 1 day of the filing of a challenge
to the sentence.
Page 15 of 74
III. INDIA CONTINUES TO REFUSE TO ENGAGE WITH THE
PASSPORT ISSUE
45. In its Reply, India yet again seeks to deflect attention from a fundamental question- one
that bas been repeatedly raised with lndia by Pakistan and one which India has
continually refused to answer.
46. That fundamental question (identified by Pakistan in its Counter-Memorial at paragraph
121 as a "central question") is this:
how is it that Commander Jadhav (an individual that Jndia admits was a member of its
armedforces, but (conveniently) suggests retired short/y prior to his arrest) was able to
travelfrequently to andfrom India using an authentic Indian passport bearing afalse
identity in a Muslim name? <t==
47. This question itself raises yet further highly material questions. Ali of these questions
have been repeatedly raised with India since 31 May 2017. India could easily answer
them. It refuses to do so and seeks to wish them away as being "irrelevant"
(Reply/paragraph 97) or "mischievous ... propaganda" [Volume 1/Annex 17/pages 2-
3/paragraph (iv)]. India's response as such is telling and can only be incriminatory.
48. Pakistan reiterates that at the time of his arrest Commander Jadhav was in possession of
an Indian passport (number L9630722, issued on 12 May 2014, valid until 11 May 2024)
bearing the Muslim name 'Hussein Mubarak Patel' ("the Passport").
49. As was set out in the Counter-Memorial (at paragraphs 206-209), Pakistan has repeatedly
requested and India has obstinately refused ta provide information relating to the
Passport. Instead, India has deployed distractions, diversions, deflections, and deafening
silence.
(A) THE SIX REOUESTS TO INDIA SIN CE 31 MA Y 2017 TO ADDRESS THE
PASSPORT ISSUE.
• Note Verbale from Pakistan's Ministry of Foreign Affairs to the High Commission
of the Republic of lndia in Islamabad dated 31 May 2017 (ref: No.Ind(l)-
5/20/2017) !CM/Volume 2/Annex 42]
• Note Verbale from Pakistan's Ministry of Foreign Affairs to the High Commission
of the Republic of India in Islamabad dated 30 August 2017 (ref: No.Ind(l)-
5/20/2017) !CM/Volume 2/Annex 43]
• Note Verbale from Pakistan's Ministry of Foreign Affairs ta the High Commission
of the Republic of India in Islamabad dated 26 October 2017 (ref: No.IND(I)-
5/20/2017) [CM/Volume 2/Annex 44)
Page 16 of 74
~!
• Note Verbale from Pakistan's Ministry of Foreign Affairs to the High Commission
of the Republic of India in Islamabad dated 19 January 2018 (ref: No.Ind(I)-
5/20/2018) [Volume 1/Annex 16)
• Note Verbale from Pakistan's Ministry of Foreign Affairs to the High Commission
of the Republic oflndia in Islamabad dated 16 April 2018 (ref: No.Ind(I)-
5/20/2018) [Volume 1/Annex 18)
• Note Verbale from Pakistan's Ministry of Foreign Aff airs to the High Commission
of the Republic of India in Islamabad dated 3 May 2018 [Volume 1/Annex 19]
50. Pakistan has aooexed all the said requests and the replies (insofar as made by lndia). At
no stage has India sought to engage with the legitimate and simple questions which India
should easily be able to answer (if such answers were trouble free for India).
51. Instead, what is clear is as follows:
(1) Pakistan referred to the Passport in Commander Jadhav's possession as reflecting a
patently false identity (a Muslim name) [CMNolume 2/Annex 42/page 1/paragraph
(c)]. India engaged in its characteristic spin to assert that Pakistan was asserting that
Commander Jadhav was in possession of a ''.fa/se" passport [CMNolume 2/Annex
33/page l /paragraph (iii)].
(2) By way of purported reply to a very detailed request sent on 30 August 2017
[CMNolume 2/Annex 43] and then repeated on 26 October 2017 [CMNolume
2/Annex 44), India's Note Verbale dated 11 December 2017 stated that Pakistan was
repeatedly asking for an explanation:
"in respect of a purported document that looks like a passport, and which, on the
allegations made by Pakistan is clearly aforgery ... Pakistan has raised questions on the
provenance of the document that looks like passporl and ... seeks explanationsfrom lndia
in relation to the same document".
[Volume 1/Annex 15/page 2/second paragraph]
India was quite right and plainly undcrstood that Pakistan was seeking an explanation in
respect of the Passport. However, lndia (for the first time) identified the Passport as
"clearly ajorgery" [Volume 1/Annex 15/page 2/second paragraph) - without any
evidence to substantiate such an important evidential asse11ion.
(3) By a Note Verbale dated 19 January 2018, India was asked, inter a lia, to explain how
the Passport could be described by India as ·'clearly aforgery" !Volume 1/Annex
16/pages 2-3/paragraphs un der heading (B)].
(4) By this time, India had received the independent expert report of Mr. David Westgate
(whîch was procluced as Annex 141 of Pakistan's Counter-Memorîal on 13 Dcccmbcr
2017). ln its Counter-Memorial, Pakistan set out (at paragraph 169) a summary of the
Page 17 of 74
conclusions of the Westgate Report, arrived at after a thorough examînation of the
Passport, inter alia, as follows:
"The pas sport is a genuine and authentic Indian travel document and nota
counterfeit (paragraph 9 of Mr. Westgate 's report);
The laminate has a securily 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
Mr. Westgate 's report);
"From my knowledge and understanding of the airport immigration system in Jndia,
the immigration counters are connected to 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 exit [Mr. Westgate having
earlier observed that it had been used thus on at least 17 occasions] is very
supportive evidence of the authentic nature of the passport. ln addition, ifthere were
issues concerning the holder of an authentic passport, such as an Interpol 124/7
notice, and lndian central watch-list enhy, criminal proceedings, issues relating to
identity, the se i,vould be very likely to be !)potted at the point of encounter with the
immigration authorities when the passporl 1vas scrutinised by the officiais in Jndia.
Such ofjicials would be examining hundreds of passports on a daily basis, and would
thus have considerably more experience in respect of such documents (paragraph 15
of Mr. Westgate 's report)".
(5) Hov,' did India respond? By its Nole Verbale dated 11 April 2018, Indîa asserted that
Pakistan's questions relating to the Passport were "aimed at propagatingfalsehood and
propaganda by Pakistan in the matter" [Volume 1/Annex 17/page 1/second
paragraphJ. With respect, this is unintelligible if it is intended to be a straightforward
and honest response to the said queries, not to mention the compeJiing expert opinion
provided to lndia. India did not stop there. India further asserted that Pakistan itself had
described the Passport as "patent/y false" [Volume 1/Annex 17/page 1/paragraph
(i)/lines 1-6] - which it must be observed was a patently false assertion. India also sought
to escape the logic of its own stance (that the Passport was "clearly aforgery" [Volume
1/Annex 15/page 2/second paragraph}) by denying that Commander Jadhav had been
in possession of a forged passport [Volume 1/ Annex 17 /pages 1-2/paragra ph (i) l, and
suggesting this vvas "mischievous and yet another measure ofpropaganda" [Volume
1/Annex 17/pages 2-3/paragraph (iv)].
( 6) On 16 April 2018, Pakistan sent India a Note Verbale reminding India that a
substantive response was expected on the Passport Issue in the Reply [Volume 1/Annex
18/page 1/sixth paragraph]. Nothing remotely rescmbling this features in the Reply.
The Nore Verbale was otherwise ignored, as indccd was a further .Note Verbale dated 3
May 2018 rc-iterating the said queries [Volume 1/Annex 19].
Page 18 of 74
(B) INDIA'S STANCE IS MANIFESTL Y UNTENABLE
52. To the extent that lndia makes any effort at all to engage with and/or address the Passport
Issue in its Reply, Pakistan respectfully submits that lndia's position is (at best)
manifestly inadequate and inconsistent.
53. On the one hand, India, in its Reply, asserts (at paragraph 2) that the Passport Issue is
irrelevant or "unrelated to the issues in the present proceedings". Pakistan respectfully
submits that, as was made clear in its Counter-Memorial, the Passport Issue is directly
relevant to the issues of whether the Court should exercise jurisdiction and/or whether
any relief should be granted in light oflndia's abuse ofrights and/or illegality/unclean
hands (undoubtedly, an issue in the present proceedings).
54. On the other hand, India, in its Reply, baldly asserts (at paragraph 6) that the Passport is
"facially ... a.forge1T because it had afalse Muslim identity". Such a statement requires
evidential support, not least in the face of the clear and compelling Westgate Report.
55. Furthermore, India's Reply (paragraph 92 thereot) itself appears to constitute an
admission which (at the very least) requires further explanation7•
56. India, in its Reply, seeks to create confusion in the matter by asserting ( at paragraph 14,
footnote 3) that Pakistan's own description of the Passport as an authentic passport with
a false identity is: "A contradiction in terms". It is a simple, clear and accurate statement
of fact. A passport can be an authentic document and yet carry a false identity. This is of
course rare, because it would be highly împroper for an authentic passport carrying a
false identity to be made available by any UN Member State. The nefarious intent and
purpose underpinning such a document (vvhich seeks to disguise the true identity of its
carrier) is all too obvious.
57. India still ignores that which Pakistan had repeatedly sought clarity upon and lndia has
continually refused to explain (but which is now confirmed by the Westgate Report
[CM/Volume 7/Annex 141])- namely that the Passport was an authentic (namely real
or genuine) passport issued by the competent authorities in India but issued in a different
(Muslim) name to that of Commander Jadhav (wherein lies the falsity).
58. Pakistan observes that, since 13 December 2017, India has been provided with a copy of
the Westgate Report [CM/Volume 7/Annex 141 ]. However, India has made no attempt
whatsoever ( either in correspondence with Pakistan or in its pleadings filed with the
7 At paragraph 92 of the Reply (perhaps unwittingly) ln dia appears to acknowledge that the Passport is prima
facie evidence of espionagc/terrorisrn: "what ,1,as the other evidence (apart /rom the patentfv contrived
COJ?fésion and the forged passpor/) fi·om w./iich it could be estab/ished that Jadhav was engaging in acls o(
spvinv and terrorism" (emphasis added)
Page 19 of74
Court) to engage with and/or address (never mind substantively contradict) the
conclusions reached in the Westgate Report.
59. lnstead, in its Reply, India (at paragraph 97) makes a meaningless reference to "a
purported Expert Report as to the passport which if [Pakistan] has unilaterally
obtainecf'. (emphasis added)
60. To the extent that India's reference to Mr. Westgate as a "purported" expert is intended
to cast aspersions upon Mr. Westgate's expertise, Pakistan draws attention to Mr.
Westgate's qualifications and expertise as set out in his report and extracted below at
paragraphs 65-67.
61. To the extent that India seeks to level criticism against Pakistan for having engaged Mr.
Westgate "unilaterally", Pakistan notes that India has been on notice of the Passport ;,,.,c
Issue since 25 March 2016 [CMNolume 2/Annex 12], or at the latest since 23 January i~X
2017 [CMNolume 2/Annex 17/pages 12-14]. More specifically, since 31 May 2017
[CMNolume 2/Annex 42], Pakistan has repeatedly requested India to provide
information relating to the Passport (which would be very simple for India (as the issuing
authority for Indian passports) to obtain and provide to Pakistan and to the Court), yet
India has continually refused to do so. With respect, it defies belief that India cannot
accessits own database and State resources to provide the necessary explanations in
respect of the Passport Issue. The reality is simple. lndia will not do so, for reasons
which must be all too clear to India (and to the Court).
62. lndeed, as the provenance and authenticity of the Passport has now been established by
an independent and highly experienced expert, the burden falls on India to rebut the
irresistible inferences that flow therefrom. Instead, lndia evades and (with respect)
blusters. Why? Pakistan observes that there are two separate questions which rnight
engage the Passport:
(1 ). What evidence did India provide to Pakistan to establish that Commander Jadhav
was indeed an Indian national entitled to diplomatie protection - the answer is none.
India's retort in its Reply (at paragraph 100) that the Pakistani authorities had stated to
the international comrnunity in March 2016 that Commander J adhav "had been sent by
Jndia to actas a spy" cannot amount to waiver/estoppel (if it be sa contended). This
cannot be embraced as a clear and unequivocal acceptance of Indian nationality. It
clearly means 'a spy for India'. If India wished ta contend that Commander Jadhav was
an lndian but nota spy, it was incumbent upon lndia to explain how he possessed and
used a passp01i with a false (Muslim) identity. lndia steadfastly avoids doing so, and
Pakistan can well understand why it does not wish to dig a deeper hole for itself in this
regard.
(2). Givcn the manifest illegality underpinning the Passport Issue (false name/issued by
the Indian authorities/used frequently/in possession whcn apprehended in Pakistan), it is
Page 20 of 74
incumbent upon India to explain the same, as it has been repeatedly called upon to do.
Put another way, lndia's hands are not only unclean, and not only is its Application
before the Court tainted by serious illegality on its part, there is a manifest absence of
good faith in this regard on the part of India.
63. Furthermore, Pakistan submits that for lndia to assert, in the face of the Westgate Report
(and without providing, or even attempting to provide, any evidence or substantiation for
the assertion), that the Passport is a forgery is, with respect, untenable. This may be a
simple and attractive diversion for India, but it cries out for an explanation.
64. Pakistan respectfully repeats that India's refusal and/or failure to address the Passport
Issue is all the more troubling in the context of questions which are straightforward and
simple for India to answer.
65. Mr. Westgate set out his expertise and qualifications in his report, stating (at paragraph
2) [CMNolume 7/Annex 141/page 1] as follows:
"! served as part of the United Kingdom Home Office and Immigration intelligence for
more than 27 years, during which time I obtained considerable experience of border
control procedures and document ver!fication. During the whole of my service I handled
travel documents on a daily basis. I have been a member of the Heathrow Terminal 4
Jorgery team, jrom 1990 until 2001 and then served on attachment to the Foreign and
Commonwealth Office as Immigration Airline Liaison Ojjicer based in New Delhi
serving the whole of northern Jndia and Nepal advising airlines and border security
control officiais onforgery andfraud in travel documents. 1 have also served as a visa
ofjicer on secondment to the Foreign and Commonwealth Office in Karachi, Pakistan.
On return to the UK in 2004 until I left the Home Office in February 2017 1 served as
Chief Immigration Officer at the National Document Fraud Unit, (NDFU). The NDFU is
the centre of knowledge and information for the Home Office.for travel documents. I
have provided evidence in hoth Crown and Magistrates courts representing the Home
Office in cases involving documentfraud'.
66. Thus, Mr. Westgate was not only a long-standing and highly experienced senior official
in the UK immigration authorities, but was responsible for the organisation dealing
specifically with fraud detection in travel documents (namcly, the NDFU).
67. In addition, and equally importantly, Mr. Westgate spent 3 years in India as Immigration
Intelligence Liaison Manager which, as described in the Curriculum Vitae appended to
his report (CM/Volume 7/Annex 141/page 10], involved:
"Working close/y with lndian Intelligence Officers, police, UK Security Service and the
visa sections across the whole of north Jndia and 1Vepal. Advising lndian and l'v'epal
border contrai on documen1a1;on and securiry".
Page 21 of 74
68. It is perhaps because of Mr. Westgate's special and undoubted expertise that India, rather
than contest his expert evidence, seeks to 'bury it under the carpet'.
69. Furthermore, given the existence in India of a computerised central immigration database
[CM/Volume 7/Annex 141/page 7/paragraph 15], it would be a very simple matter for
India to input the serial number of the Passport into its database, and then to inform
Pakistan and the Court as to whether such a passport with such a serial number exists on
lndia's records.
70. Even if such a passport with such a serial number does not exist on India's records, it is
incumbent upon India to explain how (as Mr. Westgate has found) the Passport was able
to be used to pass through immigration counters for entry or exit through India on at least
17 occasions [CMNolume 7/Annex 141/page 7/paragraph 14]. On each such
occasion, any CCTV or other cameras at/near the immigration counter would have
captured and recorded the image of the persan that presented the Passport, as well as the
precise time and date.
71. Furthermore, many international airports are equipped with fingerprinting technology
and passengers entering or exiting through such an airport are required to submit to a
fingerprint scan8• A fingerprint scan produces a record for the competent authorities.
72. Moreover, as was observed by Mr. Westgate, the Passport contained valid Iranian visas
[CM/Volume 2/Annex 141/page 3/paragraph llJ. The visa application process for Iran
requires the submission of a form with accompanying documentation [Volume 1/Annex
31]. It would be perfectly possible for India to ascertain whether the visas for Iran were
obtained by Commander Jadhav (masquerading as 'Hussein Mubarak Patel') in an
improper manner.
73. N otwithstanding the simplicity of such investigative steps, and the ease with which the y
could be undertaken by India, India has consistently refused and/or failed to engage with
and/or address these issues. Pakistan submits that such refusal and/or failure is, with
respect, telling.
74. ln light of the clear, reliable and cogent findings contained in the independent Westgate
Report, Pakistan maintains that lndia supplied Commander Jadhav with the Passport, and
thus (most regrettably) equipped him to carry out illegal acts in a manner that is not
objectively different to supplying him with weapons. The Court will recall Articles 2(g)
and 3(a) of UN Security Council Resolution 1373 (2001) [CM/Volume 5/Annex 89],
which emphasised the importance of ensuring travel documents were not abused but
8 lt is understood from a Times ofîndia article that lndian international airports installcd (or were soon to install)
fingerprint scanners from at least around May 20 l l onwards precisely to combat identity rclated travel
document abuse, and use offorged travel documents !Volume 1/Annex 30J
Page 22 of 74
subject to rigorous scrutiny, in the context of their use to facilitate grave acts of
terrorism.
75. By supplying Commander Jadhav with the Passport, India materially enabled, and
therefore must bear responsibility for, the illegal acts committed by Commander Jadhav
in and against Pakistan and its citizens.
76. Moreover, the Passport is clear, cogent and compelling evidence of Commander
Jadhav's clandestine and illegal activity, and it is evidence whose authorship and
provenance lies in the hands of the Indian authorities. In light of that fact, it is regrettable
(although wholly unsurprising) that lndia seeks to avoid addressing any aspect of the
Passport.
77. In its Counter-Memorial, Pakistan (in Section III(C)) set out in detail its submissions on
lndia's illegality, including (at paragraph 2 I 9) its submission "that Jndia is guilty of
egregious illegal conduct in providing Commander Jadhav with an authentic passport
and fa/se identity, and despatching him to carry out acts of espionage and terrorism in
Pakistan in contravention of the Charter of the United Nations". Thus, Pakistan invited
the Court to declare India's claim inadmissible and/or otherwise unacceptable on the
basis of the doctrines of illegality and/or clean hands and/or the principle of ex injuria jus
non orilur. The egregious conduct oflndia is either the operative cause for the
proceedings before the Court, or it otherwise has the effect of barring any form of relief
being available to India.
78. In correspondence and in its Reply, India has not sought to engage with this central
submission. lndia's assertion to the contrary in its Reply (at paragraph 56) that it has
given a "detailed response" to Pakistan's MLA Request by virtue of its Note Verbale
dated 11 December 2017 (Volume 1/Annex 15] is manifestly untenable.
79. India continues to avoid the issue, including by continuing to assert in its Note Verbale
dated 11 April 2018 that the Passport is a "forgery" [Volume 1/ Annex 17 /pages 2-
3/paragraph (iv)J (despite the clear and cogent findings of the Westgate Report).
80. Furthermore, India has sought to describe Pakistan's legitimate concerns and queries in
respect of the Passport as "'propaganda" [Volume 1/Annex 17/pages 2-3/paragraph
(iv)], ''farcical" [Volume 1/Annex 15/pagc 2/second paragraph and Volume 1/Annex
17/page 3/second paragraph], "mischievous" [Volume 1/Annex 17/pagcs 2-
3/paragraph (iv)J and (Reply/paragraph 39) part of a "litany <?ffalse allegations".
Page 23 of 74
(C) PAKISTAN IS NOT ALONE IN QUESTIONING INDIA ON THE PASSPORT
ISSUE
81. Pakistan is not the only party which is seeking explanations from India. Senior and
respected Indianjoumalists are asking very similar questions and being (at best)
stonewal1 ed.
82. India, in its Reply, says (at paragraph 50) as follows:
"It is correct that some Indian journalists made the comments conveniently relied upon
by Pakistan. That is a measure of the freedom of press in Jndia., where no curbs are
placed upon expression of individual opinions even if they be contrary to the slated
position of the Government of lndia".
83. It is assumed (because India has omitted to give any specific reference) that this is a
reference to the article written by the highly respected Indian journalist Mr. Karan
Thapar on 21 April 2017 (referenced by Pakistan in its Counter-Memorial at paragraph
85 and Annex 28). In fact at least 3 senior Indian joumalists have separately and
publically raised similar questions in this regard without any substantive response from
the lndian authorities. The issue is not one of freedom to express an opinion. It is about a
State providing (or, more accurately, refusing to provide) answers to legitimate
questions.
84. lndeed, India's response seeks to completely obscure the point. There are simple (and
determinative) questions regarding the Passport held by Commander Jadhav at the time
of his mTest (bearing the name 'Hussein Mubarak Patel') that India has the ability to give
the answers to - but refuses to do so.
The Quint - 5 January 2018
85. In this regard, Pakistan notes that on 6 January 2018, it was widely reported [Volume
1/Annex 21] that The Quint9 had been forced to retract a story it had publîshed on 5
January 2018 conceming Commander Jadhav written by its editor Mr. Chandan Nandy 10
[Volume 1/ Annex 20]. The Quint is yct to provide any explanation as to the reasons for
the sudden removal of the story. Pakistan is m,vare of media reports suggesting pressure
9 An lndian online news platform founded by Mr. Ragav Bahl - a founder and former managing director of the
Networkl 8 Group (a leading lndian news televisinn netwwk) !Volume 1/Anncx 231
10 Mr. Chandan Nandy has been the Political and Opinion Editor at The Quint since May 2015 !Volume
1/Anncx 22]. He was formerly Senior Assistant Editor at 'The Times Group', which owns the Times q/1ndia
(the largest circulation F.nglish language newspaper in Jndia and one of India 's newspapcrs of record)
Page 24 of 74
was brought to bear upon The Quint but, absent any explanation from The Quint itself,
the matter cannot be taken any further 11 •
86. That story (entitled 'Senior RAW 0.fficers Were Not in Favour of Jadhav') quoted "two
former RA W senior officers, including one secretary who headed India 's externat
intelligence agency afier 2008" [Volume 1/Annex 20/page 1/second paragraph] as
stating that Commander Jadhav's recruitment by RA W was one of:
''a few differenl attempts to launch renewed efforts to use human sources as "deep
penetration" agents in Pakistan, where most intelligence assets, both HUMJNT and
SJGJNT, were wound up during the prime ministership ofJK Gujral in the late 1990s".
[Volume 1/Annex 20/page 1/last paragraph]
8 7. The article further stated:
"The clearest evidence that Jadhav operated for the RA 1'V came to the fore only afier his
cover - as a businessman who would jj·equent Iran, especially Chabahar was blown
and he ,vas captured by the Pakistan, following which a former RA ~V chief, besides at
least two other senior ojjicers, ca/led his Mumbai-based parents to "advise" them ta not
speak about their son 's case to anyone.
The other evidence was the second passport, with the name Hussein Mubarak Patel, that
he carriecl, which shows that il ivas originally issued in 2003 and ivas renewed in 2014.
The second passport (no 19630722) was issued in Thane on 12 A1ay 2014 and was due to
expire on 11 A1ay 2024.
While one passport (no E6934766) is in his name, lhe second one raises more questions,
especially the date of its issue and why he signed as Hussein Mubarak Patel to enter into
a property deal (with his mother) in Mumbai where he lived with his parents, wijè, and
children before he was nabbed by the Pakistan Inter-Services Intelligence (!SI)".
[Volume 1/Annex 20/page 2/third to fifth paragraphs]
88. lndia, in its Reply, seeks (at paragraph 50) to sweep aside Pakistan's reference to Mr.
Karan Thapar' s research by dismissing it as 'convenient'. Yet, the fact that multiple
senior and respected Indianjournalists are drawing attention to key factual issues in this
case, including, inter alia, Commander Jadhav' s possession of an authentic passport
bearing a false identity, suggests (at the very lcast) that Pakistan's enquiries oflndia in
respect of the same were j ustified and legitimatc.
11 Severa[ Jndian media sources have reported that a crirninal cornplaint for sedition under Section 124A of the
Penal Code of lndia was filed against Mr. Chan dan Nandy and The Quint for this "anti-national article"
!Volume 1/Annex 241
Page 25 of 74
Frontline -31 January 2018
89. On 31 January 2018, the highly respected Indianjoumalist Mr. Praveen Swami12
published an article in Frontline13 entitled 'India 's secret war' [Volume 1/ Annex 25]. In
the article, Mr. Swami states:
"In principle, there should be no difficulty in settling the truth of the claims that Jadhav
still serves with the Indian Navy. The Gazette of Jndia records, among other things, the
commissioning, promotions and retirements of military and civilian officiais in granular
detail. Inducted into the Navy in 1987, with the service number 415582, Kulbhushan
Sudhir Jadhav would likely have been promoted to the rank of commander afler 13 years
ofservice, in 2000.
But the digital archive o[the Gazette of!ndia, a public document, has removed ail files
relating to the Defence Ministrv for several months in 2000. Files in subsequent years
bear no record of Jadhav 's retirement - though the Gazette is far from being immune to
errors and omissions.
The government of India has told the International Court of Justice that Jadhav was a
retired naval officer - a question that is, in any case, irrelevant to the proceedings there
- but it has declined to state exact/y when he retired.
ln response to a written question jrom this writer, the Naval Headquarters declined to
conjirm or deny whether Jadhav was a serving naval oj]icer. Instead, it referred this
writer to the Minislry of Externat Affairs. The Ministry, in turn, said it had "nothing to
add to whatever is already in the public domain "". (emphasis added)
[Volume 1/Annex 25/page 1/eighth to eleventh paragraphs]
90. The approach of avoiding or evading simple and legitimate questions conceming
Commander Jadhav (from respected lndian journalists as well as Pakistan), as has been
demonstrated by the Government of lndia repeatedly in this matter, is, Pakistan submits,
as telling as it is unacceptable.
91. The article goes on to state most significantly with regard to Commander Jadhav's
pas sports:
12 Mr. Praveen Swami is an independent journa\ist who was formcrly the Diplomatie Editor of The Dai/y
Telegraph in London (2010-2011 ), the Resident Editor of Iï1e Hindu (2011-2013), and the National Editor
(Strategic & International Affairs) of The !ndian Express (2014-2017) [Volume 1 /Annex 27]
u Frontline is a fortnightly English-language current affairs magazine published by 'The Jlindu Group' from
Chennai, lndia which owns The Hindu (the second-largest circulation English language newspaper in lndia and
one of Jndia' s newspapers of record)
Page 26 of 74
"In December 2003, Jadhav travelled to Iranfrom Pune on a passport (E6934766) that
identified him as Hussein Mubarak Pat el. The pas sport identified "Patel" as a resident
of the Marland Cooperative Housing Society in Pune but gave no apartment number.
There has been no official investigation into how the passport was issued.
The Pune pas sport office records show the pas sport was earlier held by another
individual, but the files contain no address. The Jndian government has ojfered no
explanation of how this pas sport was obtained by Jadhav".
[Volume 1/Annex 25/page 2/seventh and eighth paragraphs]
92. The article adds:
"In 2014, Jadhav obtained the passport (L9630722) he was eventually arrested with in
Pakistan, which was issued in Thane. This time, he identified himse({as a resident c~{the
Jasdanwala Complex on the old Afumbai-Pune road cutting through Navi Mumbai. The
fiat, municipal records show, was otvned b.v his mother, Avanti Jadhav".
[Volume 1/ Annex 25/page 3/seventh paragraph]
93. Perhaps predictably, on 3 February 2018, India's Ministry ofExtemal Affairs' Official
Spokesperson dismissed Mr. Swami's article as "concocted and mischievous" [Volume
1/ Annex 29] - rather than seeking to rebut any of its content. This tone has a very
familiar ring to it, mirroring the response to Pakistan in this regard.
94. Indeed, l\.fr. Swami and Frontline were criticised heavily in India in the mainstream
media and social media following the publication of the article described above. On
occasion such criticism was accompanied by calls for a tough response from the
Government of India to journalists whose writings "undermine national interest and
wittingly or unwittingly, aidforeign enemiesfrom Jndian soi!" (Volume 1/Annex
28/page 4/last paragraph].
95. Pakistan draws attention to these matters simply to illustrate that Jndia's approach in this
context has bccn to {i) say nothing (ii) attack (iii) deflect - whether challenged by
Pakistan or its own independent and respectedjournalists.
Observations
96. Upon suhmission of this Rejoinder, formal pleadings are closed. Despite insisting upon a
further round of'pleadings to engage in "effective rebuttal'' [Volume 1/Annex 3/pages 5-
6/paragraph 17], India has shown a marked unwillingness to engage with this issue and
the independent expert report which calls for a substantive answer.
Page 27 of 74
97. Pakistan will invite the Court to accept the evidence ofMr. David Westgate (however
regrettable and significant the consequences of doing so from India's perspective).
India's failure to respond in this regard cannot be camouflaged as a plea on relevance, let
alone as denying "propaganda" [Volume 1/Annex 17/pages 2-3/paragraph (iv)]. lt is
precisely because the Passport Issue is highly relevant (if not determinative) of the facts
and matters founding Pakistan's core submissions before the Court that, Pakistan submits
with respect, the Court can and must consider whether the Passport was:
(1) An authentic Indian passport
(2) Issued by the Indian authorities
(3) In a false Muslim name
(4) Used extensively by Commander Jadhav to enter and leave India as well as to obtain
foreign visas
(5) Purposefully provided in violation of the duty of good faith of all UN Member States, =:=
and/or abuse of rights and/or illegally and/or to facilitate grave illegality including ""'""
violations of the fondamental principles of the UN Charter rooted in non-interference,
respect for territorial integrity and sovereignty, as well as the jus cogens prohibition of
terrorism (State-sponsored or otherwise ).
98. Furthermore:
(1) The possession of the said Passport and the abject refusai ofindia to explain the same
(as it could so easily) is clear, compelling evidence of its nefarious purpose, the most
obvious being facilitation of Commander Jadhav's clandestine/illegal presence in foreign
jurisdictions which must be for illegal purposes, including commission of acts of
espionage and/or terrorism.
(2) India has been afforded every possible opportunity to explain the Passport Issue. A
lack of adjudication and determination on this question (which India no doubt will strive
for) can but condone such blatant violations oflnternational Law.
(3) India's conduct in this matter is wholly abusive and even if no espionage exception
existed as a matter of Customary International Law, or the 2008 Agreement did not have
the effect contended for (neither proposition being sustainable on the materials placed
before the Court by Pakistan), India's raie in this regard precludes the grant of any relief
by the Court at India's behest - whether as a matter of admissibility, merits or otherwise.
Page 28 of 74
IV. INDIA HAS MISREPRESENTED THE BILATERAL 2008
AGREEMENT ON CONSULAR ACCESS
99. lndia appears to have misleadingly sought to elide distinct and separate provisions of the
2008 Agreement to support its construction of the same.
100. In its Reply, India asserts (as the heading toits Section VIII) that the 2008 Agreement
"HAS NO BEARING ON THE PRESENT DISPUTE'. Pakistan respectfully submits that
it is untenable to assert that a carefully negotiated, detailed bilateral agreement
(specifica11y on the provision of consular access) signed by bath India and Pakistan can
have "no bearing" on a dispute between India and Pakistan concerning consular access.
101. Indeed, India is now belatedly driven to accept (as it must) that the 2008 Agreement
has legal meaning and effect. It is another matter that India seeks to misrepresent the
same.
102. In its Reply, India asserts (at paragraph 144) that:
"The phrase ··examine the case on its merits" [in Article (vi) of the 2008 Agreement}
makes it apparent that it applies to the agreement to release and repatriate persans
within one month of the confirmation oftheir national status and completion of
sentences. As an exception to this, Jndia and Pakistan reserve the right to examine on
merits f~f the release and repatriation of persans upon complet ion oftheir sentences,
where their arrest, detention or sentence was made on political or security grounds''.
103. However, it is, in fact, Article (v), and not Article (vi), of the 2008 Agreement that
governs the situation of release and repatriation of persans after completion of their
sentences.
104. Article (vi) refers to a different situation entirely- namely, the arrcst, detention and
sentence of persans on political or security grounds. This is the provision engaged in the
present circumstances. lndia's (with respect) crass attempt to denude and distort the plain
meaning of the agreement that India itself proposed and agreed ta is most unfortunate.
105. It is perhaps necessary to quote the 2008 Agreement again in this regard, to illustrate
that India's contention is simply untenable unless the 2008 Agreement is deliberately
misread.
"Agreement on Consular Access
The Government of Pakistan and the Government of India, desirous (dfurthering the
ohjective ofhumane treatment ofnalionals ofeither country, arrested, detained or
imprisoned in the other country have agreed to reciprocal consular (acilities as [àllcnFs:
Page 29 of 74
(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 1 st July each year.
(ii) lmmediate notification of any arrest, detention or imprisonment of any persan of the
other country shall be provided to the respective High Commission.
(iii) Each Government undertakes to expeditiously in.form the other of the sentences
awarded to the convicted nationals of the other country.
(iv) Each Government shall provide consular access within three months to nationals of
one country under arrest, detention or imprisonment in the other country.
(v) Both Governments agree to release and repatriate persans within one month of
confirmation o{their national status and completion of sentences.
(vi) ln case of'arrest, detention, or sentence made on political or security grounds, each
sicle mav examine the case on its merits.
(vii) ln .special cases, which callfor or require compassionate and humanitarian
considerations, each side may exercise its discret ion subject ta its laws and regulation to
allow early release and repatriation of persans.
This agreement shall came intofàrce on the date of ils signing.
Done at Islamabad on 21 May, 2008 in two originals, in English language, each text
being equally authentic. '' ( emphasis added)
106. In its Memorial, India asserted (at paragraph 92) as follows:
"The 2008 Agreement, was entered into (or "furthering the obiective o{humane
treatment o{nationals ofeither country arrested, detained or imprisoned in the other
country .... ", and bv which the flvo signatorv States, lndia and Pakistan, agreed to
certain measures. These included the release and repatriation of persans vvithin one
month of confirmation of their national stalus and completion of sentences. The
Agreement recognised that in case of arrest, detention or sentence made on political or
security grounds, each side may examine the case on its own merits, and that in special
cases which cal! for or require compassionate and humanitarian cons ide rations, each
side may exercise its discretion su~ject to its laws and regulations ta allo-..v early release
and repalriation o.f persans. Jndia does nol seek early release or repatriation ofJadhav.
as contemplated by the 2008 Agreement". (emphasis added)
107. lnsofar as one reads paragraph 92 oflndia's Memorial (above) with reference to
Article (v) and Article (vi) separately (as one must), this is correct. The mischief is
present in the i 11 line thereof where the text el ides Article (vi) and Article (v), by the
simple device of a comma and convenient failure to mention that the se provisions are
distinct and separate.
Page 30 of 74
108. Nevertheless, India's standpoint is (with respect) now significantly clearer.
109. India began somewhat dismissively by asserting at the Provisional Measures stage
that the 2008 Agreement was "irrelevant" [CM/Volume 1/Annex 5.1/page
17/paragraph 15 and page 34/paragraph 66], that "Jndia does no! seek to rely upon
this Bilateral Agreement" [CM/Volume 1/Annex 5.1/page 17/paragraph 14] and that
the 2008 Agreement was "not registeredwith the United Nations under Article 102 of the
Charter" [CM/Volume 1/Annex 5.1/page 17/paragraph 16; see also page
34/paragraph 66(b)].
110. Perhaps upon some limited reflection, in its Memorial, lndîa asserted (at paragraph
91) that "ln any event, the question of consular access sought under Article 36 being
denied or being subjected to the provisions of some bilateral treaty does not arise" and
(at paragraph 93) that the existence of the 2008 Agreement was "irrelevant".
111. Now, finally, India accepts that the 2008 Agreement was intended to and does indeed
have legal effect. However, India seeks to negate the legal effect of Article (vi) of the
2008 Agreement by eliding it with Article (v). :!:
112. Pakistan maintains that, where the VCCR 1963 preserved the position as a matter of
Customary International Law as at 1963, where there was no State practice to suggest
that a primafacie case of espionage engages the facilities afforded by Article 36(1)
VCCR 1963, it was and remains open for States to arrive at and agree a bilateral
approach in this regard.
113. Given the tense and (unfortunately) often violent and belligerent nature of the
relationship between India and Pakistan since 1947, the 2008 Agreement (initiated by
India) is intelligible, vital and legally effective. It was meant to have the effect that its
words carry.
Page 31 of 74
V. PRIMA FACIE CASES OF ESPIONAGE ARE AN
EXCEPTION TO ARTICLE 36 VCCR 1963 AS A MATTER
OF CUSTOMARY INTERNATIONAL LAW
114. Pakistan re-iterates its submissions as reflected in the Counter-Memorial and develops
the same herein with reference to the approach elucidated by the Court when evaluating
and determining the existence and content of Customary International Law in a specific
context.
(A) IDENTIFICATION AND/OR DETERMINATION OF RULES OF CUSTOMAR Y
INTERNATIONAL LAW
115. In its Reply, India (at Section VII) rejects Pakistan's submissions in respect of a rule
of Customary International Law as at 1963 concerning an exception to Article 36 VCCR
1963, as regards an individual evidencing, from their conduct and materials in their
possession, a prima facie case of espionage. As the Preamble to the VCCR 1963 made
clear, it was:
"Affirming that the ru/es of customary international law continue to govern matters not
express/y regulated by the provisions of the present Convention,"
[CMNolume 5/Annex 88/page 2]
Respected Academic Commentators
116. As Pakistan observed in its Counter-Memorial (at paragraph 317), by 1961, the State
practice on consular access in espionage cases had led Professor Luke T. Lee14 (the
leading authority on the subject of the VCCR 1963) to the clear conclusion that:
"A frequent exception to the consular righl to protect nationals and visit them in prison
is the case ofspies".
[CMNolume 5/Annex 112.1/page 125]
117. Furthermore, as noted by Pakistan in its Counter-Memorial (at paragraph 318) it
appears that (soon after the VCCR 1963 was adopted) the same understanding was also
held by Biswanath Sen, an Honorary Legat Adviser to India's Ministry of External
Affairs ( 1954-1964) who wrote in bis A Diplomar 's Handbook of International Lau.' and
Practice (1965) (at page 233):
"Afrequenl exception to the consular righls to protect nationals and visit them in prison
is the case ofpersons ·who are held on charge of e:,,pionage as evidenced by the practice
ofstates".
H Dr. Luke T. Lee (d.2015) servcd as a Mernber of the Senior Executive Service at the US State Depa11ment, as
well as being a former Chairrnan of the International Law Association 's Cornmittee on the Legal Status of
Refugees, and Ad_junct Professor of Law at the American University in Washington lJC !Volume 2/Annex 581
Page 32 of 74
[CM/Volume 5/Annex 117]
118. Pakistan submits that the observations ofthese leamed and respected authorities are of
great significance, if not conclusive in the absence of any credible and material
statements to the contrary (which Pakistan has not found, nor, it seems, has India).
119. Nevertheless, in the interests of completeness, Pakistan outlines hereinbelow how the
Court itself bas evaluated the existence and content of Customary International Law, as
has been encapsulated in statements propounded by the International Law Commission
("the ILC") in 2016 (and revised in March 2018). In this regard, Pakistan refers to the
draft conclusions of the ILC as stated in the 701h session (17 May 2018) (A/CN.4/L.908)
[Volume 2/Annex 55} and further explained by the Chair of the ILC Drafting Committee
on 25 May 2018 [Volume 2/Annex 56] 15 .
120. Pakistan enumerates fourteen observations in respect of the identification and/or
determination of rules of Customary International Law by the Court. The materials
referred to herein and the principles are all very familiar to the Court.
121. Pakistan submits that the approach of the Courtis fully reflected in the commentaries
above. Likewise such State practice as was visible in the context of the clandestine,
necessarily concealed (if not illegal or murky) activity of espionage as at 1963 underpins
the seminal commentaries identified at paragraphs 116-117 above.
i). The Two Elements of a Rule ofCustomary International Law
122. Article 3 8( 1 )(b) of the Statute of the Court pro vides as follows:
"Article 38
1. The Court, whose fùnction is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules express/y
recognized hy the contestin;; states;
b. international custom, as evidence ofa general practice accepled as law;
c. the general principles of law recognized by civilized naOons,·
d. su~ject to the provisions of Article 59, judicial decisions and the teachings of the most
highly quali(ted publicists of rhe various nations, as subsidiary me ans for the
determination of ru les of lai+·.
15 As can be seen from the Draft Conclusions, almost all of the suggestions of the Special Rapporteur wcre
adopted
Page 33 of 74
>
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto".
123. Article 38(1)(b) of the Statute of the Court thus clearly establishes that there are two
elements to the identification and/or determinatîon of a rule of Customary International
Law: (1) the identifiable existence of a 'general practice'; (2) that is accepted as law, in
the sense that it is carried out by States with a sense of legal right or duty (namely that it
is accompanied by opinio juris ). Such a position is borne out in the case law of the Court.
124. In North Sea Continental Shelf (Germany/Denmark; Germany!Netherlands),
Judgment, JCJ Reports 1969, page 3, by a special agreement dated 20 February 1967,
proceedings were instituted requiring the Court to state the applicable rules of
international law and to carry out a delimitation of the continental shelf on the basis of
those rules.
125. In its Judgment of 20 February 1969, the Court held (at paragraph 77) [Volume
2/Annex 40) as follows:
"77. The essential point in this connection-and it seems necessary to stress it-is that
even ifthese instances of action by non-parlies to the Convention were much more
numerous than they infact are, they would not, even in the aggregate, suffice in
themselves to constitute the opinio juris;-for, in order to achieve this result, two
conditions must be fu!filled. Not only must the acts concerned amount to a settled
practice, but they must also be such, or be carried out in such a wav, as to be evidence of
a belie(that this practice is rendered obligatory by the existence of a rule o(law
requiring it. The needfor such a beliej,' i.e., the existence of a su~jective element, is
implicit in the very notion of the opinio juris sive necessiratis. The States concerned must
therefore jèel that they are conforming to what amounts to a le gal obligation. The
frequency, or even habitua! character of the acts is not in itse(f enough. There are many
international acts, e.g., in the field ofceremonial and protocol, which are performed
almost invariably, but which are motivated only by considerations qf courte~y,
convenience or tradition, and not by any sense of legal duty". (emphasis added)
126. In Continental Shelf (Libyan A rab Jamahiriya/Malta), Judgment, ICJ Reports 1985,
page 13, by a special agreement dated 26 July 1982, proceedings were instituted
requiring the Court to delimit the continental shelf between Libya and Malta.
127. In its Judgment of3 June 1985, the Court held (at paragraph 27) [Volume 2/Annex
41] as follows:
"27. lt is a/course axiomatic that the material o[customan, international law is to be
looked fàr primarilv in the actual practice and opinio furis o(States. even though
mul!ilateral conventions may have an important role lo play in recording and defining
rules derivingji·om custom, or indeed in developing them". (emphasis added)
Page 34 of 74
128. More recently, in Jurisdictional lmmunities of the State (Germany v ltaly: Greece
intervening), Judgment, ICJ Reports 2012, page 99, by an application dated 23
December 2008, Germany instituted proceedings against Italy seeking a declaration from
the Court that Italy had failed to respect Germany's State immunity by allowing civil
damages actions against the German State in the Italian courts arising out of acts
committed during World War Two.
129. In its Judgment of 3 February 2012, the Court, citing its judgment in North Sea
Continental Shelf, held (at paragraph 55) [Volume 2/Annex 42] as follows:
"the existence of a rule of customary international law requires that there be "a settled
practice" together with opinio juris".
13 O. In Right of Passage over lndian Territory (Portugal v Jndia), Judgment, ICJ Reports
1960, page 6, by an application dated 22 December 1955, Portugal instituted proceedings
claiming that it had a right of passage over two enclaves (Dadra and Nagar-A veli) and
that India had prevented Portugal's exercise of that right contrary to a previously
followed practice.
131. In its Judgment of 12 April 1960, the Court held (at pages 42-43) [Volume 2/Annex
431 as follows:
"lt would thus appear that, during the British and post-British periods, Portuguese
armed forces and armed police did no! pass between Daman and the enclaves as of right
and that, qfter 18 78, such passage could on/y take place with previous authorization by
the British and later by lndia, accorded either under a reciprocal arrangement already
agreed Lo. or in individual cases. Having regard to the special circumstances of the case,
this necessityfor authorization be/ore passage could take place constitutes, in the view of
the Court, a ne galion of passage as of right. The practice predicates that the territorial
sovereign had the discretionarv power to withdraw or to refuse permission. Il is argued
that permission was always granted, but this does nol, in the opinion o[the Court, affect
the legal position. There is nothing in the record ta show that grant ofpermission was
incumbent on the British or on Jndia as an obligation". (emphasis added)
132. In Legalily ofthe Threat or Use ofNuclear Weapons, Advisory Opinion, ICJReports
1996, page 226, the UN General Assembly rcquested an advisory opinion from the Court
in respect of the question: "ls the thrcat or use of nuc/ear weapons in any circumstance
permitted under international law ?"
133. In its Advisory Opinion of 8 July 1996, the Court held (at paragraphs 72-73) [Volume
2/ Annex 44] as follows:
Page 35 of 74
>
"72. The Courtfurther notes that thefirst of the resolutions of the General Assembly
express/y proclaiming the illegality of the use ofnuclear weapons, resolution 1653 (XVI)
of 24 November 1961 (mentioned in subsequent resolutions), after referring to certain
international declarations and binding agreements, from the Declaration of St.
Petersburg of 1868 to the Geneva Protocol of 192 5, proceeded to qualify the le gal
nature of nuclear weapons, de termine their e_ffects, and apply general rules of customary
international law to nuclear weapons in particular. That application by the General
Assembly of general rules of customary law to the particular case ofnuclear weapons
indicates that, in ifs view, there was no specific rule of customary law which prohibited
the use ofnuclear weapons; if such a rule had existed, the General Assembly could
simply have referred to it and would not have needed to undertake such an exercise of
legal qualification.
7 3. Having said this, the Court points out that the adoption each year by the General
Assembly, by a large majority, of resolutions recalling the content of resolution 1653
(XVI), and requesting the member States to conclude a convention prohibiting the use of
nuclear weapons in any circumstance, reveals the desire of a very large section of the
international community to take, by a specffic and express prohibition of the use of
nuclear weapons, a significant stepforward along the road to complete nuclear
disarmament. The emergence, as !ex lala, ofa customary rule speci/ically prohibiting the
use ofnuclear weapons as such is hampered bv lhe continuing tensions between the
nascent opinio ;uris on the one hand, and the still strong adherence to the practice of
deterrence on the other". (emphasis added)
134. Thus, if the Court finds it is unable to establish that a general practice accepted as law
exists, then it is likely to conclude that a rule of Customary International Law has not
been proven.
135. Put another way, in this context, unless the Court can be satisfied that States generally
accepted that there was a right to consular access as a matter of Customary International
Law, unless expressly provided for in the VCCR 1963, the position as a matter of
Customary International Law would continue to prevail. lndeed, Pakistan maintains that
State practice as at 1963 evidences that there was no Customary International Law
obligation to provide consular access where a primafacie case of espionage was
manifest.
136. The Court has helpfully addressed the level of uncertainty that precludes the existence
of Customary International Law. In Asylum (Colombia/Peru), Judgment of 20 1\/ovember
1950. ICJ Reports 1950, page 266, proceedings wcre instituted whereby Colombia
asserted that Peru was bound to give guarantees nccessary for the safe departurc of a
refugee (accused of instigating a political rebcllion) who had claimed asylum in the
Colombian Embassy in Peru.
Page 36 of 74
137. In its Judgment of 20 November 1950, the Court, having analysed the relevant State
practice, held (at page 277) [Volume 2/Annex 45] as follows:
"Finally, the Colombian Government has referred to a large number of particular cases
in which diplomatie asylum was infact granted and respected. But it has not shown that
the alleged rule of unilateral and definitive qualification was invoked or-if in some cases
if was infact invoked-that it was, apartfrom conventional stipulations, exercised by the
States granting asylum as a right appertaining to them and respected by the territorial
States as a duty incumbent on them and not merely for reasons ofpolitical expediency.
The facts brought to the knowledge of the Court disclose so much uncertainty and
contradiction, so much fluctuation and discrepancy in the exercise of diplomatie asylum
and in the official views expressed on various occasions, there has been so much
inconsistency in the rapid succession of conventions on asylum, ratified by some States
and rejected by others, and the practice has been so much influenced by considerations
ofpolitical expediency in the various cases, that il is no! possible to discern in al! this
any constant and uniform usage, accepted as law, wilh regard to the alleged rule of
unilateral and definitive qualification ofthe ojfence". (emphasis added)
ii). The ILC 's Draft Conclusions on the Identification ofCustommy International Lmv
138. It is apparent from the above that it is now clear and settled that the identification
and/or determination of a rule of Customary International Law requires the establishment
of two elements, namely: (1) a general practice; (2) that is accepted as law (i.e. opinio
juris).
139. This position is now reflected in the Draft Conclusions on the Identification of
Customary International Law drafted by the Drafting Committee, with the assistance of
the Special Rapporteur Sir Michael Wood16, and adopted by the ILC in 2016 ("the Draft
Conclusions") [Volume 2/Annex 53], wherein Draft Conclusion 2 provides as follows:
"To determine the existence and content ofa rule of customary international law, il is
necessary to ascertain whether there is a general practice that is accepted as law (opinio
juris)".
!Volume 2/Annex 53/page 82]
140. ln the Commentary ta Draft Conclusion 2, the Special Rapporteur explains (at
paragraph (1 )) [Volume 2/Annex 53/pagc 82] that these arc "two dislincl, ye1 related,
questions".
ir, Sir Michael Wood was the principal Le gal Ad viser to the UK Foreign & Commonwealth Office ( 1999-2006)
and has been a member of"the International Law Commission since 2008
Page 37 of 74
>
141. The Special Rapporteur further explains (at paragraph (2)) [Volume 2/Annex 53/page
82} that these two elements "are the essential conditions for the existence of a rule of
customary international law" and that their presence in any given case must be identified
after "a close examination of available evidence".
142. In the Commentary to Draft Conclusion 2, the Special Rapporteur explains (at
paragraph (2)) [Volume 2/Annex 53/page 83] that what the Court embarks upon in
identifying rules of Customary International Law is "a search for a practice that has
gained such acceptance among States that it may be considered to be the expression of a
legal right or obligation (namely, that it is required, permitted or prohibited as a matter
oflaw). The test must always be: is there a general practice that is accepted as law?"
iii). Assessment of the Evidence
143. It is apparent that, in the course of assessing evidence for the identification and/or
determination of a rule of Customary International Law, it is a requirement to take into
account the broader context as well as the nature of the rule contended for and the
circumstances in which the relevant evidence is to be found.
144. In North Sea Continental Sheff (Germany!Denmark; Germany/Netherlands), in his
Dissenting Opinion to the Court's Judgment of20 February 1969, Judge Tanaka (Japan)
held (at pages 175-176) [Volume 2/Annex 46] as follows:
"Ta decide whether these Iwo factors in the formative process of a customary law exist
or not, is a delicate and difjicult malter. The repetition, the number of examples of State
practice, the duration of time required for the generation of customary law cannot be
mathematically and uniformly decided. Each fact requires to be evaluated relative/y
according to the di{ferent occasions and circumstances. Nor is the situation the same in
diffèrent fields oflaw such asfamily law, property law, commercial law, constilulional
law, etc. lt cannot be denied that the question of repetition is a malter <~( quantity;
therejore there is no alternative to denying the formation of customary law on the
continental shelf in general and the equidistance principle ff this requirement of quantity
is notjùljilled. What I want to emphasize is that what is important in the malter at issue
is not the number or.figure of ratifications of and accessions to the Convention or of
examples of subsequent State practice, hui the meaning which they would imply in the
particular circumstances. We cannot evaluate the rat[fication of the Convention by a
large maritime country or the State practice represented by ils concluding an agreement
on the basis of the equidistance principle, as having exact/y the same importance as
similar acts by a land-locked country which possesses no parlicular inlerest in the
de/imitation of the continental she(f'. (cmphasis added)
iv). Application of underlying principles of Public International La'v\,
145. Pakistan submits that the applicability of any underlying principles of Public
International Law should be taken into account by the Court within the contcxtual
Page 38 of74
>
assessment of the evidence for the identification and/or determination of a rule of
Customary International Law. Thus, by way of an example which it is assumed is
uncontroversial, the principles enshrined within the UN Charter must provide the 'four
corners' for any Customary International Law.
146. In Jurisdictional Jmmunities of the State (Germany v ltaly: Greece intervening}, the
Court, in its Judgment of 3 February 2012, held (at paragraph 57) [Volume 2/Annex 42]
as follows:
"57. The Court considers that the rule of State immunity occupies an important place in
international law and international relations. lt derives (rom the principle o(sovereign
equality of States. which, as Article 2, paragraph 1, ofthe Charter o(the United Nations
makes clear, is one o[the (undamental principles ofthe international le gal order. This
principle has to be viewed together with the principle that each State possesses
sovereignty over its own territory and that there.fl.owsfrom that sovereignty the
jurisdiction of the State over events and persans within that terri tory. Exceptions to the
immunity of the State represent a departure from the principle of sovereign equality.
lmmunity may represent a departure from the principle of territorial sovereignty and the
jurisdiction whichflowsfrom it". (emphasis added)
14 7. In that case the Court considered State immunî ty as a rule of Customary International
Law "derive[d]" from the underlying fondamental Public International Law principle of
sovereign equality of States, as enshrined in Article 2(1) of the UN Charter
[CM/Volume 5/Annex 102]. >
148. In the joined cases of Certain Activities carried out by Nicaragua in the Border Area
(Costa Rica v Nicaragua) and Construction ofa Road in Costa Rica along the San Juan
River (Nicaragua v Costa Rica), proceedings were instituted conceming, inter alia,
Nicaragua's daim that Costa Rica was performing extensive road construction along the
border area that had significant environmental ramifications.
149. In her Separate Opinion to the Court's Judgment of 16 December 2015, Judge
Donoghue (USA) held (at paragraph 3) [Volume 2/Annex 47] as follows:
"3. An assessmenf of"the existence and content (~f customary international law norms is
often challenging Over the years, some have seized on the 1927 stalement of the
Permanent Court of International Justice that "[r]estrictions upon the independence of
States cannol. _ . he presumed'' ("Lotus", Judgment No. 9, 1927, P.C.I..J, Series A, No.
10, p. 18) to support lhe assertion that. where evidence (4'S1ate practice and opiniojuris
is incomplete or inconsislent. no norm of customary international !cn-v constrains a
State 'sfeedom of action. Such an assertion, an aspect of the so-called "Lotus"
principle. ignores lhefàct that the identification ofcuslomarv international law must
take account o{lhe fimdamental parameters ofthe international legal order. These
include the hosic characterisrics ofinter-State relafions. such as territorial sovereignty.
Page 39 of 74
and the norms embodied in the Charter o[the United Nations, including the sovereign
equality o(States (Article 2, paragraph 1, o(the Charter ofthe United Nations)".
( emphasis added)
150. Having referred to the approach taken by the Court in Jurisdictional lmmunities of the
State (Germany v Jtaly: Greece intervening), Judge Donoghue continued (at paragraph 5)
as follows:
"5. The Court 's approach in Jurisdictional lmmunities o{the State, which grounds the
analysis in fimdamental background principles, applies with equal /Orce to the
consideration o(the existence and content o(customary international law regarding
transboundary environmental harm. If a party asserts a particular environmental norm
withoul evidence of general State practice and opinio juris, the "Lotus" presumption
would lead to a conclusion that customary international law imposes no limitation on the
State of origin. As in Jurisdictional Jmmunities ofthe State, however, the appraisal of the
existence and content ofcustomarv international law regarding transboundary
environmental harm must begin bv grappling with the tension beflveen sovereign
equalitv and territorial sovereignty". (emphasis added)
151. Pakistan respectfully re-iterates that, in the instant case, the underlying fundamental
Public International Law principles of refraining from the use of force against the
territorial integrity of another State (as enshrined in Article 2( 4) of the UN Charter) and
non-intervention in another State's interna] matters (as enshrined in Article 2(7) of the
UN Charter) !CM/Volume 5/Annex 102] provide the essential legal and factual matrix
for the Court. Therein, the Court must assess the position as a matter of Customary
International Law as advanced by Pakistan in respect of consular access, in cases of an
individual demonstrating from their conduct and possessions aprimafacie involvement
m esp10nage.
v). Consideration of the Availability!Lack ofAvailabili(v of Evidence in the
Circumstances
152. Furthermore, the Court's contextual assessment must evaluate the type of evidence
that it receives with reference to the situation before it, and due regard must be had to the
relative availability or lack of availability of such evidcnce in the circumstances.
153. In Jurisdictional lmmunities o_fthe State (Germany v ltaly: Greece intervening), in its
Judgment of 3 Fcbruary 2012, the Court held (at paragraph 55) (Volume 2/Annex 42) as
follows:
"ln the present context. Stole practice o(particular significance is to be found in the
judgments o[national courts fàced v,1ifh the question whether a /Oreign Slale is immune,
the legfa'lation o(those States tt'hich have enacted statures dealing with immunitv. the
claims to immunirv advanced hv States hefore forâgn courts and the statemenls made bv
Page 40 of 74
>
States, first in the course ofthe extensive study o(the subiect by the International Law
Commission and then in the context ofthe adoption of the United Nations Convention.
Opinio Juris in this context is rejl.ected in particular in the assertion by States claiming
immunity that international law accords them a right to such immunity from the
Jurisdiction of other States; in the acknowledgment, by States granting immunity, that
international law imposes upon them an obligahon to do so; and, converse/y, in the
assertion by States in other cases of a right to exercise jurisdiction overforeign States".
( emphasis added)
154. In that case, the Court was able to identify where the best available evidence was
likely to corne from according to the circumstances of that case. Pakistan respectfully
submits, since matters conceming espionage are typically zealously guarded (if not
concealed) by States, official documentary and public records will be a rarity.
155. Nevertheless, sufficient credible and consistent publically available rnaterial has been
placed before the Court by Pakistan to establish a general State practice as at 1963: No
acceptance of consular access, and a consistent practice of denial of consular access in
the context of a prima facie case of espionage, and/or significant lapse of time be fore
some form of limited and highly controlled forrn of engagement or interaction is
provided with consular officiais from the 'sending State' with their individual national
who is accused of espionage.
vi). Consideration of the Nature of the Rule of Customary International Law contended
for
156. In the Commentary to Draft Conclusion 3 (which provîdes for the need for a
contextual assessrnent when identifying and/or determining a rule of Customary
International Law- extracted below), the Special Rapporteur explains (at paragraph (4))
[Volume 2/Annex 53/page 86] that:
"In particular, where prohibitive ru/es are concerned (such as the prohibition of torture)
it may sometimes be dif]icult tofi.nd positive State practice (as opposed to inaction):
cases involving such rules will most like~v turn on evaluating whether the practice (being
deliberate inaction) is accepted as law".
157. Whilst (unsurprisingly, given the approach of States to this subject), it has never been
determined by the Court that the activity of espionage is contrary to international law
(nor is that strictly necessary in this case), leamed academic commentary at the time the
VCCR 1963 was being negotiated provides clarity on the question. ln 1962, Profèssor
Quincy Wright 17 observed that "In rime o(peace ... espionage and, in.fac!, any
17 Prof essor Quincy Wright (d. 1970) was a member of the üepartment of Social Sciences at the Un ivcrsity of
Chicago ( 1923-1956) and then Profcssor of International Law at the Woodrow Wilson Depa1tment of Foreign
Aff airs at the University of Virginia ( 1951-1961 ). He was also President of the American Society of
International Law ( 1955-1956) and a member of the editorial board of the Amcrican Association of International
Page 41 of 74
>
penetration of the territory of astate by agents of another state in violation of the local
law, is also a violation of the rule of international law imposing a duty upon states to
respect the territorial integrity and political independence of other states" [Volume
2/Annex 57/page 12/third paragraph].
vii). The Court must conduct separate inquiries as to 'general practice ' and 'opinio
juris'
158. 1t is apparent that the Court's assessment of whether there is a general practice
together with opinio juris should take the form of two separate inquiries - one for
general practice and one for opinio juris (albeit that there is likely to be some overlap in
terms of the material used for each inquiry).
159. The position above is now reflected in the Draft Conclusions on the Identification of
Customary International Law adopted by the ILC in 2016, wherein Draft Conclusion 3
provides as follows [Volume 2/Annex 53/page 84]:
"1. In assessing evidence for the purpose of ascertaining whether there is a general
practice and whether that practice is accepted as law (opinio juris), regard must be had
to the overall context, the nature of the rule, and the particular circumstances in which
the evidence in question is to be found.
2. Each of the two constituent elements is to be separately ascertained. This requires an
assessment of evidence for each element".
160. In the Commentary to Draft Conclusion 3, the Special Rapporteur explains (at
paragraph (6)) [Volume 2/Annex 53/page 86] that "While the constituent elements may
be intertwined in fact (in the sense that practice may be accompanied hy a certain
motivation), each is conceptually distinct.for pur poses of identifying a rule ofcustomary
international law".
161. In the Commentary to Draft Conclusion 3, the Special Rapporteur explains (at
paragraph (2)) [Volume 2/Annex 53/page 85] that there is "an overarching principle"
that "the assessment of any and ail availahle evidence must be careful and contextual".
The Special Rapporteur further explains that
"Whether a general practice thal is accepted as law (accompanied by opinio juris) exists
must be carefitlly investigated in each case, in the light of the relevant circumstances".
[Volume 2/ Annex 53/page 85]
Law ( 1923-1970). Additionally, he served as an advisor to Justice Robert H. Jackson at the Nuremberg Trials
and as an advisor to the US State Depai1ment
Page 42 of 74
viii). Assessment of 'General Practice'
162. As explained above, it may be that, given the nature of the underlying subject matter,
positive State practice is inherently difficu1t to identify. Nevertheless, it is accepted that
deliberate inaction by a State in the face of a certain set of circumstances can contribute
to its 'practice'.
163. This position is now reflected in the Draft Conclusions on the Identification of
Customary International Law adopted by the ILC in 2016, wherein Draft Conclusion 6
provides as follows [Volume 2/Annex 53/page 91]:
"]. Practice may take a wide range of forms. lt includes bath physical and verbal acts. It
may, under certain circumstances, include inaction.
2. Forms ofState practice include, but are not limited to: diplomatie acts and
correspondence; conduct in connection with resolutions adopted by an international
organization or at an intergovernmental conference; conduct in connection with treaties;
executive conduct, including operational conduct "on the ground"; legislative and
administrative acts; and decisions of national courts.
3. There is no predetermined hierarchy among the variousjàrms ofpractice". (emphasis
added)
164. By way of update, Pakistan observes that, in bis Fifth Report dated 14 March 2018, >
the Special Rapporteur, having regard to the comments made by States, suggested (at
paragraph 55) !Volume 2/Annex 54/page 25] that Conclusion 6(1) could be amended so
that it read as follows:
"I. Practice may take a wide range of forms. It may include bath physical and verbal
acts, as well as deliberate inaction". (emphasis added)
165. Pakistan respectfully submits that the evidence it has advanced concerning material
State practice establishes that (as is relevant for present purposes, in the period before the
VCCR 1963 was adopted) States generally acted in a manner not inconsistent with an
acceptance that they would not be entitled as of right to be allowed consular access to
individuals who were accused, on the basis of their conduct and possessions, of
exhibiting a primafacie case of espionage.
ix). The Court must assess ail availahfe general practice as a whole
166. I t is clear that the Court' s asscssment of the practice of a State must have regard to ail
available practice and. furthcr, that the same is to be assessed as a wholc.
Page 43 of 74
167. In Jurisdictional lmmunities of the State (Germany v Italy: Greece intervening), in its
Judgment of 3 February 2012, the Court held (at paragraph 76) [Volume 2/Annex 42) as
follows:
"that Greek State practice taken as a whole actually contradicts, rather than supports,
Italy 's argument". ( emphasis added)
168. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
States of America), Judgment, JCJ Reports 1986, page 14, by an application dated 9
April 1984, Nicaragua instituted proceedings against the United States of America
conceming a dispute relating to responsibility for the use of force against Nicaragua.
169. In its Judgment of27 June 1986, the Court held (at paragraph 186) [Volume 2/Annex
48] as follows:
"186. lt is not lo be expected that in the practice o,f States the application of the rules in
question should have been perjèct, in the sense that States should have refrained, with
complete consistency, /rom the use of force or from intervention in each other 's internai
affairs. The Court does not consider that, for a rule to be established as customary, the
corresponding practice must be in absolutelv rigorous conformitv with the rule. ln order
to deduce the existence of customary rules, the Court deems it sufficient that the conduct
of States should, in general, be consistent with such rules, and that instances of 5'tate
conduct inconsistent with a given rule should generally have been treated as breaches of
that rule, notas indications of the recognition ofa new rule. ff a State acts in a way
primafacie incompatible with a recognized rule, but de.fends its conduct by appealing to
exceptions orjust(fications contained within the rule itse{f, then whether or no! the
State 's conduct is in fact justifiable on that basis, the significance of that attitude is to
confirm rather than to weaken the rule". ( emphasis added)
170. Thus, Pakistan respectfully submits that the fact that there are some instances where a
receiving State has allowed a sending State consular access toits national accused of
espionage (alrnost always under restrictive conditions) does not detract from the
identification of the rule of Customary International Law advanced by Pakistan - that
prima facie cases of espionage constitute an exception to the consular access that would
otherwise be required by Article 36 VCCR 1963.
x). Inconsistency in pructice does not necessarily require the practice ta be given
reduced weight
171. Furthermore, it is clear that inconsistency in the practice of a particular State does not
necessarily lead to the conclusion that that State 's practice will have a reduced ( or no)
weight before the Court.
Page 44 of 74
172. In Fisheries (United Kingdom v Nonvay), Judgment, JCJ Reports 1951, page 116, by
an application dated 28 September 1949, the United Kingdom instituted proceedings
against Norway claiming that a Norwegian decree stipulating a methodology for drawing
baselînes for the calculation of the width ofNorwegian territorial waters was unlawful.
173. In its Judgment of 18 December 1951, the Court held (at page 138) [Volume 2/Annex
49] as follows:
"The Court considers that too much importance need not be attached to thefew
uncertainties or contradictions, real or apparent, which the United Kingdom
Government claims to have discovered in Nonvegian practice. They may be easily
understood in the lighl of the variety of the facts and conditions prevailing in the long
period which has elapsed since 1812, and are not such as ta modify the conclusions
reached by the Court".
174. Likewise, Pakistan respectfully submits that the fact that there are some
inconsistencies in the practice of certain States as regards allowing a sending State
consular acoess to its national accused of espionage (mostly under restrictive conditions),
does not detract from the identification of the mle of Customary International Law
advanced by Pakistan - that primafacie cases of espionage constitute an exception to the
consular access that would otherwise be required by Article 36 VCCR 1963.
175. The position above is now reflected in the Draft Conclusions on the Identification of
Customary International Law adopted by the International Law Commission in 2016,
wherein Draft Conclusion 7 provides as follov,'s [Volume 2/Annex 53/pages 92-93):
"1. Account is to be taken of ail available practice of a particular State, which is to be
assessed as a whole.
2. Where the practice of a particular State varies .. the weight lo be given to that practice
may be reduced'.
176. In the Commentary to Draft Conclusion 7, the Special Rapporteur explains (at
paragraph (2)) [Volume 2/Annex 53/page 93J that:
"This means that the practice examined should be exhaustive, within the limits o(its
availability, that is. including the relevant practice (~( ail of the State 's organs and ail
relevant practice of a particular organ. The paragraph states, moreover, that such
practice is to be assessed as a whole: only then can the ac tuai position of the State be
de!erminecf'. ( emphasis added)
177. As a furthcr update, Pakistan observes that, in bis Fifth Report datcd 14 March 2018,
the Special Rapporteur, taking note of the comments made by States, suggested (at
Page 45 of 74
paragraph 62) [Volume 2/Annex 54/page 28] that Conclusion 7(2) could be amended so
that it read as follows:
"2. Where the practice of a particular State varies, the weight to be given to that practice
may, depending on the circumstances, be reduced".
xi). What is meant by 'general practice '
178. lt is clear that the Court's inquiry as to 'general practice' is aimed at assessing the
existence of a practice that, inter alia, is followed by a sufficiently widespread and
representative number of States.
179. In North Sea Continental Shelf (Germany!Denmark; Germany!Netherlandj), in its
Judgment of20 February 1969, the Court held (at paragraph 74) [Volume 2/Annex 40]
as follows:
"7 4. As regards the time element, the Court notes that if is over ten years since the
Convention [1958 Geneva Convention on the Continental Shelj] was signed, but that it is
even now less thanfive since it came into force in June 1964, and that when the present
proceedings were brought it was less than three years, while less than one had elapsed at
the lime when the rejpective negotiations between the Federal Republic and the other
two Parties for a complete de/imitation broke down on the question of the application of
the equidistance principle. Although the passage of only a short period of time is not
necessarily, or ofitselj,' a bar to the.formation of a new rule of customary international
law on the hasts of what was originally a pure/y conventional rule, an indispensable
requirement would be that within the period in question, short though it might be, State
practice, including that of States whose interests are specially ajfected, should have been
bath extensive and virtuallv uni[Orm in the sense of the provision invoked;-and should
moreover have occurred in such a way as to show a general recognition that a rule of
law or legal obligation is involved'. (emphasis added)
180. The Court continued (at paragraph 77) that what is required is a "settled practice" by
States.
xil). Which States have relevant practice?
181. As the Court has made clear, it is important to have regard to the practice of the States
which are or have been particularly involved in the relevant underlying activity or are
most likely to be concemed with it (namely, in this case, cspionage or the
capture/detention of foreign espionage agents). In North Sea Continental Shelf"
(Germany/Denmark; Germany!NelherlandJ), in its Judgment of 20 February 1969, the
Cami held (at paragraph 74) [Volume 2/Annex 40] as fo!Jows:
Page 46 of74
>
"'an indispensable requiremenl would be that within the period in question, short though
it might be, State practice, including that of States whose interests are speciallv atfected,
should have been both extensive and virtually uniform". (emphasis added)
182. Pakistan submits that, notwithstanding the inherent unavailability of publically
available official records in respect of the capture/detention of espionage agents, the
State practice placed in evidence by Pakistan to date does illustrate the practice of a
sufficiently wide group of States, including States often accused of engaging in
espionage or having claîmed from time to time to have captured a foreign espionage
agent.
183. Furthermore, it is clear that the Court's înquiry as to 'general practice' is aimed at
assessing the existence of a practice that, in addition to being practised by a sufficiently
widespread and representative number of States, is also consistent.
184. Pakistan of course accepts that, where the Court considers that the relevant acts of
States are divergent to such an extent that it cannot discem any particular pattern of
behaviour or trend, it will not find that a rule of Customary International Law has been
established.
185. In Fisheries (United Kingdom v Norway), in its Judgment of 18 December 1951, the
Court held (at page 131) [Volume 2/ Annex 49] as follows:
"In these circumstances the Court deems it necessary to point out that although the tenmile
rule has been adopted hy certain States both in their national law and in their
treaties and conventions, and although certain arbitral decisions have applied it as
between these States, other States have adopted a different limil. Consequently, the tenmile
rule has not acquired the authority of a general rule of international law".
186. In De limitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United
States of America), .Judgment, JCJ Reports 1984, page 246, by a special agreement dated
25 November 1981, Canada and the United States of America referred the issue of
delimiting the maritime boundary dividing the continental shelf and fisheries zones in the
area of the Gulf of Maine.
187. In its Judgment of 12 October 1984, a Cham ber of the Court held ( at paragraph 81)
[Volume 2/Annex 50] as follows:
"81. In a malter o.f this kind, international law and in this respect the Chamber has
logically to refer primarily to customary international law - can of"its nature only
provide afov basic legal principles, which lay down guidelines to he.followed with a
vieu· to an essential oh;ective. Jt cannot also be expecled to specifj.J the equitable criteria
to be applied or the practica!. often technical, melhods to be usedfàr attaining rhat
objective - which remain simply criteria and melhods even where they are also, in a
Page 47 of 74
different sense, called "principles ". Although the practice is still rather sparse, owing to
the relative newness of the question. it too is there to demonstrate that each specific case
is. in the final analysis, diffèrent (rom ail the others, that it is monotypic and that, more
often than not, the most appropriate criteria, and the method or combination of methods
most likely to yield a result consonant with what the law indicates, can only be
determined in relation to each particular case and its specific characteristics. This
precludes the possibility of those conditions arising which are necessary for the
formation of principles and rules of customary law giving specific provisions for subjects
like those Just mentioned''. ( emphasis added)
188. As cited above, in Asylum (Colombia/Peru), in its Judgment of 20 November 1950,
the Court held (at page 277) [Volume 2/Annex 45] as follows:
"The facts brought to the knowledge of the Court disclose so much uncertainty and
contradiction, so much.fluctuation and discrepancy in the exercise of diplomatie asylum
... that it is not possible to discern in ail this any constant and uniform usage ... with
regard to the alleged rule of unilateral and definitive qualification of the offence".
189. Yet, it is not a requirement that the practice of a particular State be completely
consistent. Whilst the Court will look for substantial uniformity in State practice, it is not
the case that inconsistent or even contradictory practice will be an insuperable obstacle to
satisfaction of the requirement that there be a 'general' practice.
190. As cited above, in Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States of America), in its Judgment of 27 June 1986, the Court held
(at paragraph 186) [Volume 2/Annex 48] as follows:
"186. It is not to be expected that in the practice of States the application o(Jhe ru les in
question should have been perfect, in the sense that States should have refrained, with
complete consistency, from the use offorce or frorn intervention in each other 's interna!
affairs. The Cour/ does not consider that, for a rule ta be estahlished as customary, the
corresponding practice must be in absolutely rigorous conformity with the rule. ln order
to deduce the existence o_f customary ru/es, the Court deems il su.lficient that the conduct
o_fStates should, in general, be consistent with such rules, and that instances o_f State
conducl inconsistent with a given rule should generally have been treated as breaches of
that rule, no/ as indications of the recognition of a new rule. !fa State acts in a way
prima fàcie incompatible ·with a recognized rule, but defend~ ils conduct by appealing to
exceptions or justifications contained within the rule itsefl" then whether or not the
State 's conduct is in tact justifiable on that hasts. lhe signi/icance ofthat attitude is to
confirm rather than to weaken the rule". (cmphasis added)
191. Thus, even where inconsistent practice by a State is manifèsted by that Statc's breach
of the rule of Customary International Law contended for, a general practice may still be
established.
Page 48 of 74
192. The position above is now reflected in the Draft Conclusions adopted by the ILC in
2016, wherein Draft Conclusion 8 provides as follows [Volume 2/Annex 53/page 94]:
"J _ The relevant practice must be general, meaning that it must be sufficiently
widespread and representative, as well as consistent.
2. Provided that the practice is general, no particular duration is required'.
193. By way ofupdate, Pakistan observes that, in his Fifth Report dated 14 March 2018,
the Special Rapporteur, taking note of the comments made by States, suggested (at
paragraph 69) [Volume 2/Annex 54/page 31] that Conclusion 8(1) could be amended so
that it read as follows:
"I. The relevant practice must be general, meaning that it must be sufficiently
widespread and representative, as 1vell as virtually uniform".
xiii). Assessment of 'Opinio Juris'
194. As regards the requirement that the general practice must be accompanied with opinio
juris, it is clear that this entails that the practice must have been undertaken with a sense
of legal right or duty, namely that States consider their practice to be carried out because
it was compelled or entitled by reason of a rule of Customary International Law.
195. In l>lorth Sea Continental Shell(German_v!Denmark; Germany!Netherlands), in its
Judgment of 20 February 1969, the Court held (at paragraph 76) [Volume 2/Annex 40]
as follO\vs:
"76. To begin with, over hall the States concerned, whether acting unilaterally or
conjoint/y, were or short/y became parties to !he Geneva Convention, and were therefore
presumably, so far as they were concerned, acting actually or potentially in the
application ofthe Convention. From their action no inférence could legitimately be
drawn as to the existence of a rule c~{cuslomary international law infavour of the
equidistance principle. As regards lhose States, on the other hand, which were not, and
have not become parties to the Convenlion, the basis of their action can only be
prohlematical and must remain entirely .\peculative. Clearly, they were not applying the
Convention. But ji'om that no infèrence could fustifiablv be drawn that thev believed
themselves to be applying a mandatorv rule o(customarv international law. There is no/
a shred of evidence that they did and, as has been seen (paragraphs 22 and 23), there is
no lack c?{olher reasonsfor using the equidistance method, so that acting, or agreeing to
act in a cerlain way, does not ol itself demonsrrate anylhing ofa juridical nature".
(emphasis added)
Page 49 of 74
196. It is clear that practice motivated solely by other considerations such as comity,
convenience or political expediency will not constitute opinio juris.
197. InAsylum (Colombia!Peru), in its Judgment of20 November 1950, the Court held (at
page 286) [Volume 2/Annex 45] as follows:
"The facts which have been laid before the Court show that in a number of cases the
persans who have enjoyed asylum were not, at the moment at which asylum was granted,
the abject of any accusation on the part of the judicial authorities. ln a more general
way, cons ide rations of convenience or simple political expediency seem to have led the
territorial State ta recognize asylum without that decision being dictated by any feeling
of!egal obligation". (emphasis added)
198. In The Case of the S.S. "Lotus" (France v Turkey) (1927) PCIJ (Series A), No. 10,
following a collision on the high seas between a French vessel and a Turkish collier,
Turkey caused the officer of the French vessel to be arrested and prosecuted before a
Turkish criminal court. Following France's rejection of the competence of the Turkish
court, the matter of competence was referred to the Permanent Court of International
Justice by a special agreement dated 12 October 1926.
199. In its Judgment of 7 September 1927, the Permanent Court oflnternational Justice
held (at page 28) [Volume 2/Annex 51] as follows:
"Even if the rarity of the judicial decisions to befound among the reported cases were rt>
sufficienl lo prove in point of fact the circumstance alleged by the Agent for the French
Government, it would merely show that States had ofien, in practice, abstainedfrom
instiluting criminal proceedings, and no! that they recognized themselves as being
obliged to do so; for on/y if such abstention were hased on their being conscious of
having a duty to abstain would it be possible to speak ofan international custom. The
alleged jàct does not allow one to infer tha! States have been conscious of having such a
duty; on the other hand, as will presently be seen, there are other circumstances
calculated to show that the contrary is lrue''.
200. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
States of America), in its Judgrnent of 27 June 1986, the Court held (at paragraph 207)
[Volume 2/Annex 48] as follows:
"207. ... Reliance by a S'tate on a nove! right or an unprecedented exception to the
principle might, (f shared in principle hy other States, tend towards a mod[ficalion of
customary international lcrw. lnjucl hmvever the Courtfinds that Srates have not
just(fied their conduc! hy reference to a new right of inrervent ion or a neiv exception to
lhe principle of its prohibition. The l.Jnited States authorities have on some occasions
clearly stated their groundsjrJr inlervening in the affairs of aforeign Swtej()r reasons
connected i1 1ithfor example, the domeslic policies ofthat country, ils ideoloj:.,ry, the level
Page 50 of 74
of its armaments, or the direction of its foreign policy. But these were statements of
international policy, and not an assertion of ru les of existing international law".
201. It is clear that opinio juris is to be sought both as regards the States engaging in the
relevant underlying practice and the States in a position to react toit. As cited above, in
Military and Paramilitary Activities in and against Nicaragua, in its Judgment of 27
June 1986, the Court held (at paragraph 207) [Volume 2/Annex 481 as follows:
"Either the States taking such action or other States in a position to react to it, must have
behaved so that their conduct is
'evidence of a belief that this practice is rendered obligatory by the existence of a rule
of law requiring it. The needfor such a belieJ; i.e., the existence of a subjective
element, is implicit in the very notion of the opinio juris sive necessitatis. " (1 C.J
Reports 1969, p. 44, para. 77.)".
202. Whilst it is not necessary to establish that ail States have opinio juris as regards the
rule of Customary International Law contended for, it is a requirement that there be
broad acceptance along with little or no objection.
203. In Legality of the Threat or Use of Nuclear Weapons, in its Advisory Opinion of 8
July 1996 the Court held (at paragraph 67) [Volume 2/Annex 44] as follows:
"67. The Court does not intend lo pronounce here upon the practice known as the
"policy of deterrence ". Jt notes that it is a fàct that a number of States adhered ta that
practice during lhe greater part of the Cold War and continue to adhere to it.
Furthermore, the members of the international community are profoundly divided on the
matter of whether non-recourse tu nuclear weapons over the past 5 0 years constitutes
the expression of an opinio juris. Under the.se circumstances the Court does not consider
itself able tofind that there is such an opinio juris".
204. If the requirement of opinio juris is lacking then any 'general practice' identified will
be classified as mere habit or usage, because States considering themselves to be legally
free either to follow or disregard the practice contendcd for cannot be said to be a
reflection of a rule of Customary International Law.
205. The position above is now retlected in the Draft Conclusions adopted by the ILC in
2016, wherein Draft Conclusion 9 pro vides as follows [Volume 2/ Annex 53/page 97]:
"J. The requirement, as a constituent element o(customary international law, thal the
general practice he accepted as law (opiniojuris) means that the practice in question
must be undertaken vFilh il sense of!egill righr or obligafion.
Page 51 of 74
2. A general practice that is accepted as law (opinio juris) is to be distinguished from
mere usage or habit".
xiv). Failure ta react over time as evidence as 'opinio juris'
206. It is clear that a State's failure to react over time to a general practice may in certain
circumstances serve as evidence of that State' s opinio juris.
207. In The Case of the SS "Lotus" (France v Turkey), in its Judgment of 7 September
1927, the Permanent Court oflntemational Justice held (at page 29) [Volume 2/Annex
51] as follows:
"the Court feels called upon to lay stress upon the fact that it does not appear that the
States concerned have o~jected to criminal proceedings in respecl of collision cases
before the courts of a country other than thal the jlag of which was jlown, or that they
have made protests: their conduct does not appear ta have differed appreciably from that
observed hy them in al! cases of concurrent jurisdiction. This fact is directly opposed to
the existence of a tacit consent on the part of States to the exclusive Jurisdiction of the
State whosejlag isjlown, such as the Agent for the French Government has thought il
possible ta deduce from the injrequency of questions ofjurisdiction before criminal
courts. Jt seems hardly probable, and it would not be in accordance wilh international
practice, that the French Government in the Ortigia-Oncle-Joseph case and the German
Government in the Ekbatana-West-Hinder case would have omitted to protes! against
the exercise of criminal Jurisdiction by the ltalian and Belgian Courts, ifthey had really
thought that this was a violation of international law".
208. In Fisheries (United Kingdom v Norway), in its J udgment of 18 December 1951, the
Court held (at page 139) [Volume 2/Annex 49] as follows:
"The Court notes that in respect of a situation which could only be strengthened with the
passage oftime, the United Kingdom Government refrainedfromformulating
reservations.
The notoriety of the jàcts, the general toleration of the international community, Great
Britain 's position in ihe North Sea, her own interest in the question, and her prolonged
abstention would in uny case ·warrant Norway ·s enforcement of her system against the
United Kingdom.
The Court is rhus led lo conclude that the method ofstraight fines, estahlished in the
Norwegian system, was imposed hy the peculiar geography of the Norwegian coast: that
even before the dispute arose, this method had been consolidated by a constant and
si{fficiently long praclice, in thefàce ofivhich rhe atfitude of governments bears ivitness
to thefè,ct that they did nol consider if lo he col1lrary ta international law''.
Page 52 of 74
209. Deliberate inaction may constitute opinio juris provided that the State concemed was
in a position to react and the circumstances called for a reaction.
21 O. In Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
(Malaysia/Singapore), Judgment, ICJ Reports 2008, page 12, by a special agreement
Malaysia and Singapore referred to the Court a dispute between them as to which had
sovereignty over certain areas.
211. In its Judgment of23 May 2008, the Court held (at paragraph 121) [Volume 2/Annex
52] as follows:
"The absence of reaction may well amount to acquiescence ... That is to sav, silence mav
also speak, but only i(the conduct ofthe other State calls fàr a response". (emphasis
added)
212. The position above is now reflected in the Draft Conclusions adopted by the ILC in
2016, wherein Draft Conclusion 10 provides as follows [Volume 2/Annex 53/page 99]:
"1. Evidence of acceptance as law (opinio juris) may take a wide range offorms.
2. Forms of evidence of acceptance as law (opinio juris) include, but are not limited to:
public statements made on behalf of States; official publications; government legal
opinions; diplomatie correspondence; decisions of national courts; treaty provisions;
and conduct in connection with resolutions adopted by an international organization or
at an intergovernmental conference.
3. Failure to react over time to a practice may serve as evidence of acceptance as law
(opinio juris), provided that States were in a position to react and the circumstances
calledfor some reaction".
Observations
213. For the reasons stated in the Counter-Memorial and as outlined above, Pakistan reiterates
that, as at 1963, it cannot be said that there was a Customary International Law
acceptance by States that consular access was obligatory in the case of individuals
accused of espionage based upon prima.facie evidence.
214. Indeed, the learned academic commentaries and State practice Pakistan has referred to
on the part of States (rightly or wrongly) associated with the activity of espionage
pro vides a pmverful illustration of how such States took this malter "off the table'' in
terms of any form of le gal obligation to providc consular access prior to the adoption of
the VCCR 1963. Time and again, consular access was refused or some form of highly
controlled and attenuated engagement was provided in a case where primafacie
espionage activity was allegedly involvcd.
Page 53 of 74
215. Accordingly, since the VCCR 1963 came into force, it has been open to States to
modify and/or expressly state their practice in this regard. With respect, the 2008
Agreement on consular access expressly entered into between India and Pakistan
(specifically Article (vi) thereof) provides an illustration of how this has been done as
between these two States.
(B) INDIA'S MISCONCEIVED CRITICISM OF CERTAIN EXAMPLES OF
ESPIONAGE CASES CITED BY PAKISTAN
216. In its Reply, India selects and (wrongly) criticises (at paragraph 126) a few of the
examples of espionage cases cited by Pakistan in its Counter-Memorial.
217. Pakistan's response to India's criticisms is as follows:
217.1. As regards the case ofMikhail Garin, India's statement in its Reply (at
paragraph 126(a)) that .. it is not known whether or not the US denied him consular
access" misses the point. As was made clear by Pakistan in its Counter-Memorial (at
paragraph 315 .1 ), the Soviet Vice-Consul was permitted to see Mikhail Garin -
however, the US State Department insisted that a Russian-speaking US Naval
Intelligence officer should be present in the room during the meeting [CMN olume
7/Annex 146]. Mikhail Gorin's case is thus an illustration of the point made by
Pakistan in its Counter-Memorial (at paragraph 319) that States, in the time before
the VCCR 1963, were typically extremely reticent to provide any form of consular
access to suspected espionage agents or, if it were granted, then very strict limits
were imposed upon the grant of consular access.
217.2. As regards the case of Gary Powers, the fact that his father attended his trial in
Moscow is not relevant to the issue of whether or not Gary Powers was entitled to or
did receive consular access. In its Reply, lndia asserts (at paragraph 126(b)) that "as
per other material in the public domain, the American ambassador was invited to
view the trial" -however, India makes no citation of any material at all in this
respect. Apparently, according to an interview with one Vladimir L Toumanoff18,
after President Khrushchev announced in a public speech that Gary Powers' U-2
plane had been shot clown, the US Ambassador was invited to attend his show trial
and, instead, two ofhisjunior officers (including Mr. Toumanoff) attended [Volume
2/Annex 61/page 5/paragraph 3). However, it cannot be suggested that this
amounted to the grant of consular access. Furthermore, Mr. Toumanoff makes no
reference in this interview to ever having been allowed contact with Gary Powers
prior to or during the course of the trial - indeed, he states that, at the time of the
trial, Gary Powers "had been heldfor something liloe three months with no access to
18 A US official serving as a political counsellor in Moscow at the time of Gary Powers' trial [Volume 2/Annex
61/page 2/paragraph 4]
Page 54 of74
anyone except Soviet authorities, interrogators, and a "planted" cellmate. No
Americans nor anyforeigners" [Volume 2/Annex 61/page 5/last paragraph].
217.3. lndia's further comment regarding Gary Powers' case in its Reply (at
paragraph 126(b)) that "lt also appears that this was prior ta the Vienna Convention"
is perhaps (with respect) an indicator that India has not addressed the point that, by
virtue of the Preamble to the VCCR 1963, it is Customary International Law then
existing before 1963 that must be identified to determine a matter not expressly
provided for by the terms of the VCCR 1963 itself.
217.4. As regards the case of Professor Frederick Barghoom, lndia, in its Reply,
asserts ( at paragraph 126( c)) that "There is no material to suggest that after the 16
days he was denied consular access". However, the letter from the US State
Department to Senator Clifford P. Hansen extracted by Pakistan in its CounterMemorial
(at paragraph 322.1) states "We were never permitted access to Pro/essor
Barghoorn prior to his expulsionfrom the Soviet Union" [CMNolume 7/Annex
151/page 7041/third paragraph ofletter to Senator Hansen] (emphasis added).
lndia complains that Pakistan has not produced sufficient official records in support
of its arguments regarding espionage practice, yet ignores a near-contemporaneous
account emanating from the US State Department adduced in evidence by Pakistan.
217.5. As regards the case of Hanson Huang, the fact that a friend might have been
able to visit him is irrelevant to the issue of whether or not Hanson Huang was
entitled to or did receive consular access. In its Reply, India asserts (at paragraph
126(d)) that "An article in the New York Times suggests that no diplomatie action
was taken to gain access to him since he was nota US citizen''. lndia further asserts:
"This represents yet another instance of the problem ofrelying on newspaper reports
to build up a case rather than on actual records which would establish whether or
not consular access was sought, and if it was denied, the grounds for the denial".
However, whilst it is lndia, in respect of Hanson Huang, wbich itself relies upon a
newspaper article, the evidence put forward by Pakistan in respect of Hanson Huang
is an extract from the Historical Dictionary ofChinese Intelligence (2010)
[CMNolume 7/Annex 152] written by experts I.C. Smith19 and Nigel West20.
217.6. As regards the case of Harry Wu, lndia, in its Reply, asserts (at paragraph
126(e)) that "lt is not known whether US was notified earlier, and whether it sought
L9 I.C. Smith served as a FBI counterintelligence officer (1973-1998), as part of the FBI'S Senior Executive
Service (1990), as the US State Department's Chiefoflnvestigations, Counterintelligence Programs &
Diplomatie Service (1990), and as the FBI's Section Chief for Analysis, Budget & Training in the National
Security Division ( 1991) (where he was the principal FBI representative for the US intelligence community and
the primary FBI liaison contact with foreign intelligence and security agencies) [Volume 2/Annex 621
20 Nigel West is an author specialising in security, intelligence, secret service and espionage issues. He is the
European editor of the World Intelligence Review [Volume 2/Annex 63/page 1)
Page 55 of74
access to its national". However, the reports put in evidence by Pakistan in respect of
Harry Wu make reference to US "consular officiais being kept from seeing Mr. Wu
until yesterday" [CMNolume 7/Annex 153/first page/third paragraph] (emphasis
added). These words imply prevention by the receiving State authorities against the
sending State's efforts to gain access - indicating that the US did seek access to
Harry Wu. Nevertheless, in its Reply India (wrongly) further asserts (at paragraph
126(e)) that "this example negates any suggestion that consular access is not
available where the charges are those of espionage". Pakistan respectfully submits
that Harry Wu's case is an example demonstrating that major powers (in this case
China) never consistently operated on the basis that they were legally bound to
provide immediate consular access to an espionage agent.
217.7. As regards paragraph 126(g) oflndia's Reply, it is assumed (because India has
omitted to give any specific reference) that this refers to the cases cited at paragraph
349 of Pakistan's Counter-Memorial. The cases cited there demonstrate the point
being made in Pakistan's Counter-Memorial (at paragraph 348) that espionage agents
are often despatched under diplomatie cover and, if and when caught, are declared
persona non grata by the receiving State before being expelled. India, too, recognises
this point in its Reply (at paragraph 112).
(C) INDIA WRONGL Y SUGGESTS THAT PROFESSOR LEE W AS IN CONSISTENT
OR CONTRADICTED HIS STATEMENT THAT ESPIONAGE WAS A
"FREQUENT EXCEPTION'' TO CONSULAR ACCESS
218. In its Counter-Memorial, Pakistan, having explained that, because of the Preamble to
the VCCR 1963, it was necessary to examine Customary International Law as it existed
in 1963 in order to determine a matter not expressly governed by the terms of the VCCR
1963 itself, cited (at paragraph 317) the 1961 edition of Professor Luke T. Lee's
Consular Law and Practice. In that edition, it was stated (at page 125) [CM/Volume
5/ Annex 112.1] that:
"A .frequent exception to the consular right to protect na!ionals and visit them in prison
is the case ofspies".
219. In its Reply (at paragraph 128(c)), India cites a later writing by Professor Lee
published in 1966 and quotes the following passage:
"Jt may be observed that no exception is made ta persons charged wirh espionage
activilies, whether in the 1933 agreement, the Soviet-Uniled States Convention, or the
Vienna Convention".
220. If India's intention was to submit that Profcssor Lee altered his position in respect of
this point following the promulgation of the VCCR 1963, then Pakistan respectfully
subrnits that that is incorrect
Page 56 of 74
221. The above statement by Professor Lee cornes directly after his discussion of how in
cases of espionage, States including major Powers would consistently (despite the
existence of treaties in place to deal with the issue of consular access to detained foreign
nationals in general) refuse to allow consular access to the detained individual.
222. Ali of the above is also perfectly consistent with (and indeed adds further support to)
the extract from Professor Lee's Consular Law and Practice (1961) cited by Pakistan in
its Counter-Memorial as a statement of State practice/Customary International Law
principles in 1963.
223. Thus, the extract from Professor Lee in 1966, read in context, is simply a statement
that the VCCR 1963, and the other treaties referred to, contained no express exception in
respect of espionage - a point that is not in dispute. India itself therefore begs the
question - then why were States refusing consular access? Pakistan submits that it has
provided the compelling answer, to which India cannot respond- because there was no
obligation to do so as a matter of Customary International Law. Or, put another way,
Customary International Law recognised an exception to consular access in such
circumstances (which were, and are, very rare).
Page 57 of 74
>
VI. INDIA HAS FAILED TO ENGAGE WITH PAKISTAN'S
ARGUMENTS ON THE OPTIONAL PROTOCOL
224. In its Reply, India has refused and/or failed to engage with a key point raised by
Pakistan concerning abuse of process by India.
225. In its Counter-Memorial, Pakistan set out in detail (at paragraphs 142-149) its
argument that India had delîberately avoided and/or refrained from invoking the
alternative dispute resolution mechanisms of the Optional Protocol [CM/Volume
5/Annex 87] to the VCCR 1963. In so doing, India had committed an abuse of process
when it ambushed Pakistan with its Application/Request for the Indication of Provisional
Measures on 8 May 2017.
226. The Optional Protocol provides as follows:
"Optional Protocol concerning the Compulsory Settlement of Disputes
Done at Vienna on 24 April 1963
The States Parties to the present Protocol and to the Vienna Convention on Consular
Relations, hereinafler rejèrred to as ''the Convention", adopted by the United Nations
Conference held at Viennafrom 4 March to 22 April 1963,
Expressing their i,vish to resort in al! matters concerning thern in respect of any dispute
arising out of the interpretation or application oflhe Convention to the compulsory
jurisdiction of the International Court of.Justice, unless some other form of seulement
has been agreed upon by the parties within a reasonable period
Have agreed as follows:
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 to the
di.5pute being a Party to the present Protocol.
Article 11
The parties may agree, within a period of two months after one partv has noti/ied ifs
opinion to the other that a dispute exists, to resort not to the international Court of
Justice but to an arbitral tribunal. A/fer the expin1 o[lhe said period, either party mav
bring the dispute be(ôre lhe Court bv an application.
Article 111
!. 'fVithin the same period o[IH'o months. the parties may agree to adopl u conciliation
procedure befOre resorOng to the International Court of Justice.
Page 58 of 74
2. The conciliation commission shall make its recommendations withinfive months after
its appointment. If its recommendations are not accepted by the parties to the dispute
within two months after they have been delivered, either party may bring the dispute
before the Court by an application.
Article IV
States Parties to the Convention, to the Optional Protocol concerning Acquisition of
Nationality, and to the present Protocol may at any lime declare that they will extend the
provisions of the present Protocol to disputes arising out of the interpretation or
application of the Optional Protocol concerning Acquisition ofNationality. Such
declarations shall be notified to the Secretary-Genera/ of the United Nations.
Article V
The present Protocol shall be open for signature by al! States which may become Parties
to the Convention as follows: until 31 October 1963 at the Federal Afinistry for Foreign
Affairs t~lthe Republic of Austria and. subsequently, until 31 lvfarch 1964, at the United
Nations Headquarters in New York.
Article VI
The present Protocol is subject to rat(fication. The instruments of ratUîcation shall be
deposited with the Secretary-General of the United Nations.
Article VII
The present Protocol shall remain open for accession by all States which may become
Parties ta the Convention. The instruments of accession shall be deposited with the
Secretary-General of the United Nations.
Article VIII
l. The present Protocol shall enter into force on the same day as the Convention or on
the thirtieth dayfollowing the date of deposil of the second instrument of ratification or
accession to the Protocol with the Secretmy-General of the United Nations, whichever
date is the later.
2. For each State ratifaing or acceding to the present Protocol a.fier ils entry into.force in
accordance with paragraph 1 of this article, the Protocol shall enter into force on the
thirtieth day after deposit by such State o/its instrument of ratUîcation or accession.
Article IX
The Secretary-Genera/ of"the United Nations shall inform ail S!aies H'hich may become
Parties to the Convenl ion:
(a) ofsiinatures to Jhe present Proto col and of the deposit of instruments o(ratffication
or accession. in accordance with articles V, VI and VJJ:
Page 59 of 74
(b) of declarations made in accordance with article IV of the present Protocol;
(c) of the date on which the present Protocol will enter into force, in accordance with
article VIII.
Article X
The original of the present Protocol, of which the Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the Secretary-General of the
United Nations, who shall send certified copies thereof to all States referred to in article
V.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being du/y authorized
thereto by their respective Governments, have signed the present Protocol.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred and sixtythree".
( emphasis added)
227. Pakistan and India acceded to the Optional Protocol on 29 March 1976 and 28
November 1977 respectively. Neither Pakistan nor lndia filed any reservation to the
Optional Protocol [Volume 2/Annex 64].
(A) THE COURT'S NOTIFICATIONS TO STATES PARTIES TO VCCR 1963 AND
THE OPTIONAL PROTOCOL
228. Article 63 of the Statute of the Court provides as follows:
"l. Whenever the construction of a convention to which states other than those
concerned in the case are parties is in question, the Registrar shall notify al! such states
forthwilh.
2. Every state so notified has the right to intervene in the proceedings; but ifit uses this
right, the construction given by thejudgment will be equally binding upon it".
229. On 20 November 2017 [Volume 1/ Annex 8] and 18 January 2018 [Volume 1/ Annex
9], the Court issued notifications under Article 63 of the Statute of the Court to the States
Parties to the VCCR 1963 and to the Optional Protocol, in light of the fact that the Court
considered that thcrc were issues of construction of the terms of the VCCR 1963 and of
the Optional Protocol that were in question in these proceedings.
230. In respect of the Optional Protocol, Pakistan respectfully observes that the questions
in this regard may well include:
(1) What minimum form and content should notification of a dispute take (Article Il)?
(2) Whether notification is manda tory or permissive, what is the effect of a failure to
effect notification as aforesaid?
Page 60 of 74
(3)What is the effect of the two month period provided for in Article II and/or Article
III?
(4)What is the consequence of a failure to comply with the two month provision as
aforesaid?
231. Despite the strong indicator from the Court (îssued 89 days before the filing of India's
Reply) that the terms of the Optional Protocol will, or are likely to be considered in these
proceedings, India has refused and/or failed in its Reply to address the issues raised by
Pakistan conceming the Optional Protocol in any manner whatsoever.
232. Pakistan notes India's assertion to the Court on 10 January 2018, as part of its
justification for the need for a further round of pleadings, was that the matters raised by
Pakistan in its Counter-Memorial "would have to be (ully rebuttec!' (emphasis added)
[Volume 1/Annex 3/page 3/paragraph 5].
233. Having sought the Court's authorisation of a further round ofpleadings on the basis
that it needed to ''Jully" rebut Pakistan's arguments as presented in the CounterMemorial,
Pakistan respectfully observes that lndia's manifest failure to even mention
(let alone rebut) such an important aspect of the Counter-Memorial constitutes a further
example oflndia's approach in this case.
234. This is all the more striking, given that it was at lndia's insistence that the more
detailed jurisdictional provision contained in the Optional Protocol was adopted.
(B) INDIA WAS A DRIVING FORCE BEHIND THE ADOPTION OF THE
OPTIONAL PROTOCOL AT THE UN VIENNA CONFERENCE ON CONSULAR
RELATIONS
235. Article 72 (settlement of disputes) of the draft Vienna Convention on Consular
Relations prepared by the Drafting Committee provided as follows [Volume 2/Annex
65]:
"1. Any dispute arisingfrom the interpretation or application of the present Convention
shall be submitted at the request of either of lhe Parties to the International Court of
Justice unless an alternative method of seulement is agreed upon.
2. Any Contracting Party may, at the time o_(signature or ratfjying the present
Convention or of acceding thereto, declare that il does not consider itself bound by
paragraph 1 of this article. The other Contracting Parties shall not be bound by the said
paragraph with respect to any Contracting Party which has made such a declaration".
236. At the twenty-first plenary meeting of the UN Conference on Consular Relations on
22 April 1963 at 10:45am, India's represcntative (Mr. Krishna Rao21 ) recommended that
' 1 Dr. K. Krishna Rao was a Lcgal Adviser to lndia's Ministry ofExternal Affairs at the time
Page 61 of74
Article 72 "be replaced by an optional protocol on the compulsory seulement of
disputes" [Volume 2/Annex 66/page 88/paragraph 10].
237. Interestingly, he also observed (at paragraph 3) as follows [Volume 2/Annex
66/pages 87-88]:
"3. The impression had been created that the Court was a perfect instrument for the
purpose of deciding all legal disputes and that any criticism of the Court should not be
tolerated. He couldfully understand the attitude of some European countries which
genuinely placed their faith in the Court. However, he could not accept that great
concernfor the Court should be expressed by States which., in their declarations under
article 36, paragraph 2, of the Statute, denied the Court the right to decide its own
jurisdiction, as set forth in paragraph 6 of the same article 36. The record of Jndia in
that respect was much better than that of the latter group of countries. ln that connexion.
it was not inappropriate to cite the dictum o(English law that "those who corne to equity
should came with clean hands ". He agreed that every endeavour should be made to
encourage as many States as possible to accept the jurisdiction of the Court. At the same
time, however, an effort should be made to ascertain the reasons i.,vhy so many States did
not accept that jurisdiction and ta remec{v any defects which might thus be revealecf'.
( emphasis added)
238. It would appear that the leamed and respected representative for lndia was alluding to
the need for the jurisdiction of the Court to be clearly articulated. It would appear that
concems were being expressed as to the reticence of some States to confer jurisdiction
upon the Court. This may well have been due to the 'Cold V\l'ar' climate prevalent at the
time.
239. What is particularly striking is that the Optional Protocol provîdes for what would be
described as a 'multi-tier' dispute resolution process. Such provisions are commonplace
in the 21 st century, and are a reflection of a desire to avoid contentious dispute resolution
and the concomitant escalation which ensues. Considerations of this nature are even
more pressing in the context of diplomatie relations and issues as to consular access.
240. The Optional Protocol is thus a reflection of the agreement between the States Parties
thereto to seek (in good faith) to avoid 'rushing' to the Court, and to allow less
formal/confidential processes an opportunity to yield an acceptable outcome.
241. It is in that context that Pakistan observes India's conduct is all the more troublesomc:
( l) A voiding notification of a dispute to Pakistan.
(2) Thereby seeking to avoid arbitration/conciliation.
(3) Waiting for more than 1 year and then ambushing Pakistan with an application for
Provisional Measures (whose equivalent could equally if not more expeditiously have
Page 62 of74
been granted by the High Court of Pakistan) to set the stage for political theatre and
sensationalist as well as grossly distorted Indian media coverage.
242. Precisely (perhaps) the type of events that the drafters of the Optional Protocol were
seeking to avoid.
(C) "NOTIFICATION"
243. Pakistan observes that the Optional Protocol does not make any express provision for
the fonn that notification under the Optional Protocol is required to take.
244. Nevertheless, it is well-established that the concept of "'notification" in the context of
the law of treaties denotes a formai notification required to trigger certain legal events or
time periods. The UN Treaty Collection's Glossary provides, as regards "notification", as
follows [Volume 2/Annex 67/page 2}:
"'The term "notification" refèrs to a formality through which astate or an international
organization communicates certain facts or events o[legal imporlance. Not~(ication is
increasingly resorted to as a me ans of expressing final consenl. Jnstead ofopting for the
exchange of documents or deposit, states ma._v be contenl to notify their consent to the
other party or to the depositary. However, ail other acts and instruments relating to the
life of a treaty may also callfor not(fications" (emphasis added)
245. Furthem10re, in Protèssor Oliver Dorr and Kirsten Sclunalenbach's Vienna
Convention on the Law ofTreaties: A Commentary (2018), Professor Helmut Tichy22
and Dr. Philip Bittner23 state (at paragraph 6) [Volume 2/Annex 59/page 1328] in their
commentary to Article 78 VCLT 1969 (which concems notifications and
communications under that Convention) as follO\vs:
"Generally, notification may be understood as "a forma!, unilateral act in international
law, by a State infàrming other States or organizations oflegally relevantfacts "".
246. ln Professor Olivier Corten and Professor Pierre Klein's The Vienna Conventions on
the Law ofTreaties: A Cornmentary (Volume Il) (2011 ), Dr. Riad Daoudi24 states (at
paragraph 2) [Volume 2/ Annex 60/pages 1758-1759] in his commcntary to Article 78
VCLT 1969 as follows:
"2. The Dictionnaire de la terminologie du droit international defines noti(icaJion as the
'action to o(ficially infOrm a third party o(a (act, a situation, an action. a document in
2" Ambassador Prof. Dr. Helmut Tichy has served in Austria's Federal Ministry for Foreign Affairs (now the
Federal Ministry for European & International Affairs) since 1983 and as Le gal Adviser since 201 O. He is also
Professorat the lnstitute of International Law & International Relations at the University of Graz
:, Dr. Philip Bittner has served as Counsellor (Lcgal /\ffairs) in Austria's Permanent Rcpresentation to the
European Union
"~Dr.Riad Daoudi served as a Member of the lnternational Law Commission (:2002-2006)
Page 63 of 74
order to ensure that the obiect ofthe notification becomes henceforward legal/y known
by the State to which it is addressed'. For this reason, any notification is sub;ect to
formai requirements. It is made in writing and must be signed by an authority
empowered to express the consent of the State to be bound by a treaty as per Article 7 of
the Vienna Convention of 1969. Otherwise full powers are required (rom the person
signing the notification". (emphasis added, footnotes omitted)
24 7. Thus Pakistan submits that the inclusion of a provision for a formai notification of a
dispute in the Optîonal Protocol, together with the existence of alternative forms of
dispute resolution mechanisms intended to be used prior to engaging the Court' s
jurisdiction, is highly significant.
248. In the face oflndia's failure and/or refusai to engage with this issue, Pakistan reserves
its right to expand and/or develop its submissions at the oral hearing phase.
249. ln summary, Pakistan submits: (1) India was required to provide and/or should have
provided clear wTitten notification to Pakistan as to the existence (and nature) of a
dispute with reference to the VCCR 1963; (2) such notification (if sent) would engage
the conciliation/arbitration processes provided for by Articles II and III of the Optional
Protocol; (3) the Court's jurisdiction could not be invoked prior to steps (1) and (2)
above.
250. Altematively, in the light of the facîlity provided for by Articles I and II of the
Optional Protocol, lndia's recourse to the Court was done in bad faith and militates
against the grant of any relief, whether vie,ved in isolation or in the context of the other
matters set out in the Counter-Memorial and herein.
Page 64 of 74
VII. DISTRACTIONS GENERA TED BY INDIA
251. India asserts in its Reply (at paragraph 28) that much of the factual background
presented by Pakistan in its Counter-Memorial at paragraph 22 et seq is "entirely
irrelevant and beyond the scope of these proceedings". However unacceptable this stance
may be, India does not shy away from littering these proceedings with mischievous,
utterly baseless and irrelevant distractions. Pakistan refers to one by way of example.
(A) INDIA'S UNFOUNDED ALLEGATION THAT COMMANDER JADHAV WAS
''KIDNAPPED FROM !RAN"
252. In its Reply, India asserts (at paragraph 29) that Commander Jadhav was "kidnapped
/rom Iran". lndia puts forward as 'evidence' a transcript of an interview given to CNN
News 18 (an lndian TV network) by one 'Marna Qadir' (who identifies himselfto be the
Vice-Chairman of the organisation 'Voice for Baloch Missing Persans') on 18 January
2018. Apart from curious issues such as the convenient timing of the interview, and its
source, the transcript purports to show that Marna Qadir (as well as serving up serious
and unsubstantiated allegations against various Pakistani authorities) makes several
statements conveniently and belatedly adopted by lndia as the sole support for its
allegation that Commander Jadhav was abducted from Iranian territory.
253. Pakistan notes that this is not the first occasion that India has made or adopted this
palpably feeble and false allegation. On 11 April 2017, India's Minister of Extemal
Affairs said, in a speech to the Rajya Sabha, that Commander Jadhav "was doing
business in Iran and was kidnapped and taken to Pakistan" - yet gave no evidence in
support ofthat assertion [CMNolume 2/Annex 21/page 1/paragraph 2]. More thana
year later, India simply repeats its allegation in the hope that it w11l transmute into hard
fact. It does so, but only as another illustration of India's approach.
254. ln its Memorial, India asserted the alJegation of kidnapping from Iran at paragraphs
41, 57, 133 and 206(a) - yet failed to advance cven a scintilla of evidence in support.
India even went so far as to assert in the Memorial (at paragraph 206(a)) that "A former
official of the Pakistan Army also purportedly stated on electronic media that Jadhav
had been taken /rom Iran" - yet, again, India failed to cite anything at all in support of
that assertion.
255. Perhaps unsurprisingly, Pakistan has not located any publically available official
statements (let alone evidence) suggesting that India has at any point intime made any
official rcquest to the authorities in Iran in respect of Commander Jadhav and his alleged
"kidnapping". In any event, the suggestion that Commander Jadhav was kidnapped from
Iran is, at best, far-fetched.
Page 65 of 74
(B) TELLINGLY, INDIA DID NOT TAKE THE OPPORTUNITY TO RAISE THE
MATTER OF THE ALLEGED "KIDNAPPING'' WITH IRAN AT THE HIGHEST
LEVELS
256. Indeed, despite such sweeping assertions, it is curious (to say the least) that a very
recent opportunity to seek assistance or information from the competent authorities of
Iran was not taken advantage of. In this regard, Pakistan makes reference to the visit by
the President oflran to India in February 2018. This was the subject of a detailed
Ministry ofExternal Affairs Media Briefing on 17 February 2018.
257. The official transcript of the briefing dated 19 February 2018 shows that at least 4
different questions were posed by the media in respect of Commander Jadhav, no doubt
in response to the assertion that lndia had been publically projecting, namely that he had
been abducted from Iran. On each occasion, the representative for India's Ministry of
External Affairs (who is also India's Agent in these proceedings) confirmed that the
issue had not been raised with the Iranian authorities (despite the c1ear opportunity to do
so at the highest level) [Volume 2/ Annex 68/page 4/third-fourth paragraphs and page
4/ninth-tenth paragraphs and page 7/sixth-seventh paragraphs and page 8/fifthsixth
paragraphs]:
"Question: You mentioned about the security cooperation and information exchange. Did
we raise the issue of Kulbhushan.Jadhav 's abduction /rom Iran and ajier the ratification
of extradition treaty as it happened today, will we ask Iranians to prosecute those who
have aided and abated his kidnapping in Iran?
Jt. Secretary (PAi), Dr. Deepak Mittal: This issue did notjigure in the discussions.
Question:Is there any reason why the Jadhav issue did not corne up, why did we not
bring il up in our discussions?
Jt. Secretary (PAi), Dr. Deepak Mittal: Il is nol a bilateral malter with Iran in any case.
Question:Iran had said that they would probe how Kulbhushanladhav was kidnapped
from Iran and fast that we have lerned that they were not getting any cooperationfrom
Pakistan on that.front to be able to probe it. Have they ever gotten back to India and
whether they probed that issue at al!, have they officially communicated anything at any
level?25
25 With regard to the premise of the question, Pakistan has not been able to identify any official public statement
from any Iranian authority to suggest that Iran at any point accepted that Commander Jadhav had bccn
"kidnappedji·om Iran". The question thus appcars to be based solely upon the assertion advanccd by lndia.
Indecd, the lndian media rep011ed on 12 April 2017 that Iran 's Arnbassador to lndia, Gholamrcza An sari, said
Page 66 of 74
Jt. Secretary (PA!), Dr. Deepak Mittal: I thought we are ta/king about the ongoing visit,
as I mentioned this was not the topic of discussion today.
Question:When the areas offocus were being decided between India and Iran in the run
up to the President 's visit you mentioned that Kulbhushanladhav was not discussed but
was it our decision that we did not want to include Kulbhushanladhavin one of the areas
during the visit or we wanted it but Iran didn 't want? ...
Jt. Secretary (PA!), Dr. Deepak Mittal: ... the answer would be no and as I mentioned
this is nota bilateral issue in any way between India and Iran".
258. Pakistan submits that the statement by India's representative that this was "nota
bilateral malter with Iran in any case" [Volume 2/Annex 68/page 4/tenth paragraph]
is a most puzzling statement, given the serious allegation made against Pakistan, and the
manner in which this matter has been amplified and elevated within the Indian media.
Pakistan observes that India displayed strikingly less conviction in its assertion when it
could have so easily sought to buttress the same, if 1t was in any way credible or serious.
259. Pakistan had explained at the Provisional Measures Hearing as well as in its CounterMemorial
(at paragraph 69) why India's unsubstantiated allegations of kidnap/abduction
from Iran are farcical. India therefore has been on notice for some time that it must (as is
said in England) 'put up or shut up' - substantiate or desist.
that "Tehran ·was probing into the c:use o/alfeged lndian spy Kulbhushun Judhav and his business activities in
Chabahar" [Volume 2/Anncx 691
Page 67 of 74
CONCLUDING OBSERVATIONS
260. For the reasons set out in this Rejoinder, as well as those set out in the CounterMemorial,
Pakistan requests the Court to adjudge and declare that the claims oflndia, as
advanced through its Application, its Memorial and its Reply, are rejected.
261. Pakistan reserves the right to supplement or amend the present submissions.
17 July 2018
Page 68 of 74
SUBMISSION
I have the honour to submit this Rejoinder and the documents exhibited hereto on behalf of
the Islamic Republic of Pakistan.
Islamic Republic of Pakistan
CERTIFICATION
I have the honour to certify that this Rejoinder and the documents exhibited hereto are true
copies and conform to the original documents.
4MADFA1SAL
Co-Agent of he lslamic Republic of Pakistan
Page 69 of74
>--·
ANNEX: LIST OF EXHIBITS
(1) VOLUME 1 (ANNEXURES 1 - 39)
ANNEX DESCRIPTION
COURT PROCEDURE
CORRESPONDENCE CONCERNING FURTHER PLEADINGS
1 19/12/2017 - India' s letter to the Court regarding further pleadings
2 05/01/2018 - Pakistan' s letter to the Court regarding further p 1 eadings
3 10/01/2018 - India's further letter to the Court regarding further
pleadings
4 15/01/2018 - Pakistan's further letter to the Court regarding further
pleadings
5 17/01/2018 - Court' s Procedural Order authorising further pleadings
6 05/06/2018-Note Verbale from Pakistan's Ministry of Foreign
Affairs to the High Commission of the Republic of India in Islamabad
requesting lndia's confirmation of the accuracy of the contents of the
Reply
7 27/06/2018 - Note Verbale from India's Ministry of External Affairs
to the High Commission of the Islamic Republic of Pakistan in Ne\v
Delhi failing and/or refusing to answer the queries raised in Pakistan's
Note Verbale dated 5 June 2018
ARTICLE 63 NOTIFICATION
8 20/11/2017 - Court's notification under Article 63 of the Statute of
the Court in respect of the VCCR 1963
9 18/0l/2018 - Court' s notification under Article 63 of the Statute of
the Court in respect of the Optional Protocol
FACTUALBACKGROUND
FAAf!LY VISJT
10 24/12/2017 - Note Verbale from Pakistan's Ministry of Foreign
Aff airs to the Iligh Commission of the Republic oflndia in Islamabad
regarding the Family Visit
11 Curriculum Vitae of Dr. Uwc Johannes Nellessen
12 22/12/2017 - Independent Medical Report
~
13 25/12/2017 Tndia's and the Family's express written consent for
. - security measures dl_lring the Family Visit
Page 70 of 74
14 UK Ministry of Justice: 'Management of Security at Visits'
THE PASSPORT ISSUE
LETTERS FROM PAKISTAN TO INDIA ON THE PASSPORT ISSUE AND JNDIA 'S
PURPORTED RESPONSES
15 11/12/2017 -Note Verbale from India's Ministry of Extemal Affairs
to the High Commission of the lslamic Republic of Pakistan in New
Delhi
16 19/01/2018-Note Verbale from Pakistan's Ministry of Foreign
Affairs to the High Commission of the Republic of India in Islamabad
17 11/04/2018 -Note Verbale from India's Ministry of External Affairs
to the High Commission of the lslamic Republic of Pakistan in New
Delhi
18 16/04/2018 -Note Verbale from Pakistan's Ministry of Foreign
Affairs to the High Commission of the Republic of India in Islamabad
19 03/05/2018 - Note Verbale from Pakistan's Ministry of Foreign
Affairs to the High Commission of the Republic of India in Islamabad
INDIAN JOURNAL!STS SEEK!NG ANSWERS TO THE PASSPORT ISSUE
20 05/01/2018 - Mr. Chandan Nandy's article in The Quint entitled 'Two
Ex-RA W Chief, Did Not T,Vant Kulbhushan Jadhav Recruited As Spy'
21 06/01/2018 - media reports from NewsLaundry (an Indian digital
media portal run by the founding editor of lndia Today, one oflndia's
leading news magazines/television news channels) and Oplndia.com
(an English-language Indian blog owned by the Swarajya media
group) that Mr. Chaudan Nandy's article had been retracted
22 Mr. Chandan Nandy's Linkedln profile
23 Description of The Quint
24 11-15/01/2018 media reports from LatestLaws.com (an lndian
website commenting on legal news in India) and Nett•sLaundry that a
criminal corn plaint for sedition under Section 124A of the Penal Code
of Tndia was filed against Mr. Chandan Nandy and The Quint for his
"anti-national article"
25 31/01/2018 - Mr. Praveen Swami' s article in Frontline entitled
'Jndia 's secret tvar'
26 03/02/2018 - Mr. Praveen Swami 's Twitter post of comments
concerning him being made on a public forum following the
publication of his Frontline article
27 Mr. Praveen Swami's Linkedln profile
28 02/02/2018 - Article published by 'Nithesh S', ajournalist at
Oplndia.com, criticisingjournalists for publishing a11icles about this
matter that ar~ contrary to the Government oflndia's position
29 03/02/201 8 - Government of lndia' s Official Spokesperson dismissed
Mr. Swami's article as "concocted and mischievous"
1 30 02/05/2011 Times o/Jndia article entitlcd 'Fingerprinl sc_anner at -
Page7lof74
airport to check illegal migration'
31 Iranian Ministry of Foreign Affairs visa application website providing
specifications for the submission of passport copies and other
documents required for an lranian visa
PAKISTANI HIGH COURT/ SUPREME COURT REVIEW JURISDICTION
'Muhammad Imran' (case name: Muhammad Ayaz v The Superintendent District Jail,
Timergara and others)
32 25/05/2017 - Judgment of the Chief Justice of the Peshawar High
Court in the case of 'Muhammad Imran'
'Fazal Rabi' (case name: Fazal Ghafoor slo Abdul Manan, father of Fazal Rabi "Convie!",
Rio Mohallah Barpalo Road, Saugar, Tehsil Matta, District Swat v Federation of Pakistan
through Ministry of lnterior and others)
33 20/09/2016 - order of Chief Justice of the Peshawar High Court
continuing the 29 August 2016 stay order issued in respect of the
death sentence in the case of 'Fazal Rabi'
34 June 201 7 - 'Fazal Rabi' petition seeking leave to appeal to the
Supreme Court of Pakistan against the judgment of the Peshawar High
Court
35 19/07/2017 - Supreme Court stay order in respect of 'Fazal Rabi'
'Shafaqat Farooqi' (case name: A1uhammad Liaqat v The State and others)
36 2017 'Shafaqat Farooqi' petition seeking leave to appeal to the
Supreme Court of Pakistan against the judgment of the Lahore High
Court
37 22/01/2018- Supreme Court stay order in respect of 'Shafaqat
Farooqi'
'Burhan-ud-Din' (case name: Umardaraz son of Muhammad Ayaz Rio iVazakay Tehsil Salarzai
Bajaur Agency v Secretary Defence, Federation of Pakistan through Pak Secretariat,
!Ylamabad and others)
38 08/05/2018 - 'Burhan-ud-Din' petition before the Peshawar High
Court
39 09/05/2018 - Peshawar High Court stay order in respect of' Burhanud-
Din'
Page 72 of74
(2) VOLUME 2 (ANNEXURES 40 - 69)
ANNEX DESCRIPTION
AUTHORITIES
CASE LAW
40 North Sea Continental Shelf (Germany/Denmark;
Germany/Netherlands), Judgment of 20 February 1969, paragraph 74
1117611177
41 Conhnental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 3
June 1985, paragraph 27
42 Jurisdictional lmmunities of the State (Germany v Jtaly: Greece
intervening), Judgment of3 February 2012, paragraph 551115711176
43 Right of Passage over Jndian Territory (Portugal v Jndia), Judgment
of 12 April 1960, pages 42-43
44 Legality o_fthe Threat or Use of Nuclear TYeapons, Advisory Opinion
of 8 July 1996, paragraphs 67 111 72-73
45 Asylum (Colombia/Peru), Judgment of20 November 1950, page 277
111286
46 North Sea Continental Shelf (Germany!Denmark,·
Germanyl,Vetherlands), Judgment of 20 February 1969, Dissenting
Opinion of Judge Tanaka, pages 1 75-176
47 Certain Activities carried out by Nicaragua in the Border Area (Costa
Rica v Nicaragua) and Construction o.f a Road in Costa Rica along
the San Juan River (J,,licaragua v Costa Rica), Judgment of 16
December 2015, Separate Opinion of Judge Donoghue, paragraph 3 Ill
5
48 Afilitary and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States a/America), Judgment of 27 June 1986,
paragraph 186111207
49 Fisheries (United Kingdom v Norway), Judgment of 18 December
1951, page 131111138111139
50 De/imitation of the Maritime Boundary in the Gulf of Maine Are a
(Canada/United States o_f America), .Tudgment of 12 October 1984,
paragraph 81
51 The Case of the S.S. "Lotus" (France v Turkey) (1927) PCIJ (Series
A), No. 10, Judgment of 7 Septcmber 1927. page 28 Ill 29
52 Sovereignly over Pedra Branca!Pulau Batu Puteh, Middle Rocks and
S'outh Ledge (lvlalaysia!Singapore), Judgment of 23 May 2008,
paragraph 121
ILC - JDENTI FICA TION OF C USTOMAR Y !NlER!'v'A TJO,VA L LAW
i C 53 Draft Conclusions on the Identification of Customary International
Law adopttd by the International Law Commission at its 68th session
Page 73 of 74
in 2016 (plus commentaries)
54 14/03/2018 - Fifth Report of Special Rapporteur Sir Michael Wood
55 17/05/2018 -Draft Conclusions of the ILC as stated in the 70th
session (A/CN .4/L.908)
56 25/05/2018 - Statement by the Chairman of the ILC Drafting
Committee on 25 May 2018
ACADEMIC MATER/AL
57 Wright Q, 'Espionage and the Doctrine of Non-Intervention in
Internai Afjàirs' in Stanger Rand Wright Q et al (eds), Essays on
Espionage and International Law ( 1962)
58 Biographical information for Dr. Luke T. Lee
59 Tichy H and Bittner P, 'Article 78' in Dorr O and Schmalenbach K
(eds), Vienna Convention on the Law ofTreaties: A Commentary
(2018)
60 Daoudi R, '1969 Vienna Convention - Article 78' in Corten O and
Klein P (eds), The Vienna Conventions on the Law ofTreaties: A
Commentary (Volume II) (2011)
61 Interview with Vladimir I. Toumanoff
62 Biographical information for I.C. Smith
63 Biographical information for Nigel West
OPTIONAL PROTOCOL
64 UN Treaty Collection webpage showing accessions and reservations
to the Optional Protocol
65 Article 72 of the draft Vienna Convention on Consular Relations
prepared by the Drafting Committee
66 Statement by India's representative at the twenty-first plenary meeting
of the UN Conference on Consular Relations on 22 April l 963 at
10:45am recommending Article 72 (settlement of disputes) "be
replaced by an optional protocol on the compulsory seulement of
disputes"
67 UN Treaty Collection's Glossary entry regarding "Notification"
IRRELEV ANT DISTRACTION DEPLOYED BY INDIA
68 19/02/2018 - Official Transcript of Ministry of Extemal Affairs
Media Briefing on the occasion of the visit to Jndia by the President of
Iran
69 12/04/2017 - media repo1t from The Indian Express concerning a
statement reportedly made by Iran's Ambassador to India concerning
Commander J adhav
1 ih July 2018
Page 74 of 74