TABLE OF CONTENTS

…………………………………………………………Paragraphs

1. Chronology of the procedure…………[ILM Page 196]

2. I. Factual Background…………[ILM Page 200]

3. II. Jurisdiction…………[ILM Page 202]

4. III. Admissibility…………[ILM Page 203]

   1. A. First objection: abuse of process…………[ILM Page 203]

   2. B. Second objection: abuse of rights…………[ILM Page 205]

   3. C. Third objection: India's alleged unlawful conduct…………[ILM Page 206]

5. IV. The alleged violations of the Vienna Convention on Consular Relations…………[ILM Page 207]

   1. A. Applicability of Article 36 of the Vienna Convention on Consular Relations…………[ILM Page 207]

      1. 1. Alleged exception to Article 36 of the Vienna Convention based on charges of espionage…………[ILM Page 207]

         1. (a) Interpretation of Article 36 in accordance with the ordinary meaning of its terms…………[ILM Page 208]

         2. (b) The travaux préparatoires of Article 36…………[ILM Page 209]

            1. (i) International Law Commission (1960)…………[ILM Page 209]

            2. (ii) The Vienna Conference (1963)…………[ILM Page 210]

      2. 2. Alleged espionage exception under customary international law…………[ILM Page 211]

      3. 3. Relevance of the 2008 Agreement on Consular Access between India and Pakistan…………[ILM Page 211]

   2. B. Alleged violations of Article 36 of the Vienna Convention on Consular Relations…………[ILM Page 213]

      1. 1. Alleged failure to inform Mr. Jadhav of his rights under Article 36, paragraph 1 (b)…………[ILM Page 213]

      2. 2. Alleged failure to inform India, without delay, of the arrest and detention of Mr. Jadhav…………[ILM Page 214]

      3. 3. Alleged failure to provide consular access…………[ILM Page 216]

   3. C. Abuse of rights…………[ILM Page 217]

6. V. Remedies…………[ILM Page 218]

7. Operative clause…………[ILM Page 222]

INTERNATIONAL COURT OF JUSTICE

2019 17 July General List No. 168

YEAR 2019

17 July 2019

JADHAV CASE (INDIA v. PAKISTAN)

Factual background — Arrest and detention by Pakistan of an individual named Mr. Kulbhushan Sudhir Jadhav — Mr. Jadhav accused of involvement in espionage and terrorism activities — Criminal proceedings instituted — Mr. Jadhav sentenced to death by military court in Pakistan.

*

Jurisdiction of the Court — Dispute relates to interpretation and application of Vienna Convention on Consular Relations — The Court has jurisdiction under Article I of Optional Protocol to Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.

*

Admissibility of India's Application.

First objection of Pakistan to admissibility — Alleged abuse of process — No basis to conclude that India abused its procedural rights when it requested indication of provisional measures — Articles II and III of Optional Protocol do not contain preconditions to the Court's exercise of its jurisdiction — First objection to admissibility rejected.

Second objection of Pakistan to admissibility — Alleged abuse of rights — Contention by Pakistan that India failed to prove Mr. Jadhav's nationality — No room for doubt that Mr. Jadhav is of Indian nationality — Other arguments advanced by Pakistan based on alleged breaches of India's international obligations under Security Council resolution 1373 (2001) — Allegations to be examined below as part of the merits — Second objection to admissibility rejected.

Third objection of Pakistan to admissibility — India's alleged unlawful conduct — Pakistan's objection based on “clean hands” doctrine rejected — No explanation how alleged unlawful conduct by India prevented Pakistan from providing consular access — Pakistan's objection based on principle of “ex turpi causa non oritur actio” cannot be upheld — Principle “ex injuria jus non oritur” inapposite in present case — Third objection to admissibility rejected.

India's Application admissible.

*

Applicability of Article 36 of Vienna Convention.

Alleged exception based on charges of espionage — No reference in Vienna Convention to cases of espionage — Article 36 does not exclude from its scope persons suspected of espionage — Consular access expressly regulated by Article 36, and not by customary international law — Relevance of 2008 Agreement on Consular Access between India and Pakistan — No restriction on rights guaranteed by Article 36 in 2008 Agreement — 2008 Agreement constitutes a subsequent agreement within meaning of Article 73, paragraph 2, of Vienna Convention — Point (vi) of 2008 Agreement does not displace obligations under Article 36 — None of arguments concerning applicability of Article 36 of Vienna Convention can be upheld — Vienna Convention applicable in present case.

Alleged violations of Article 36 of Vienna Convention.

Alleged failure of Pakistan to inform Mr. Jadhav of his rights under Article 36, paragraph 1 (b) — Allegation not contested by Pakistan — Mr. Jadhav not informed of his rights — Finding that Pakistan breached its obligation to inform Mr. Jadhav of his rights under Article 36, paragraph 1 (b).

Alleged failure of Pakistan to inform India, without delay, of arrest and detention of Mr. Jadhav — Pakistan under obligation to inform India's consular post of arrest and detention of Mr. Jadhav — Notification some three weeks after his arrest — Finding that Pakistan breached its obligation to inform India “without delay” of Mr. Jadhav's arrest and detention.

Alleged failure of Pakistan to provide consular access — Consular access to Mr. Jadhav not granted by Pakistan — Finding that Pakistan breached its obligations under Article 36, paragraph 1 (a) and (c) by denying consular officers of India access to Mr. Jadhav.

Abuse of rights.

No basis under Vienna Convention for a receiving State to condition fulfilment of its obligations under Article 36 on the sending State's compliance with other international law obligations — Pakistan's contentions based on abuse of rights rejected.

*

Remedies.

Pakistan under obligation to cease internationally wrongful acts of a continuing character — Mr. Jadhav to be informed without further delay of his rights — Indian consular officers to be given access to him and be allowed to arrange for his legal representation.

Appropriate remedy is effective review and reconsideration of conviction and sentence of Mr. Jadhav — Full weight to be given to the effect of violation of rights set forth in Article 36 — Choice of means left to Pakistan — Pakistan to take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation — Continued stay of execution constitutes condition for effective review and reconsideration of conviction and sentence of Mr. Jadhav.

JUDGMENT

Present: President Yusuf; Vice-President XUE; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Jillani; Deputy-Registrar Fomété.

In the Jadhav case,

between

the Republic of India,

represented by

the Islamic Republic of Pakistan,

represented by

1. On 8 May 2017, the Government of the Republic of India (hereinafter “India”) filed in the Registry of the Court an Application instituting proceedings against the Islamic Republic of Pakistan (hereinafter “Pakistan”) alleging violations of the Vienna Convention on Consular Relations of 24 April 1963 (hereinafter the “Vienna Convention”) “in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav”, sentenced to death by a military court in Pakistan.

2. In its Application, India seeks to found the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes (hereinafter the “Optional Protocol”).

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

4. The Registrar immediately communicated to the Government of Pakistan the Application, in accordance with Article 40, paragraph 2, of the Statute of the Court, and the Request for the indication of provisional measures, pursuant to Article 73, paragraph 2, of the Rules of Court. He also notified the Secretary-General of the United Nations of the filing of the Application and the Request by India.

5. By a letter dated 9 May 2017 addressed to the Prime Minister of Pakistan, the President of the Court, exercising the powers conferred upon him under Article 74, paragraph 4, of the Rules of Court, called upon the Pakistani Government, pending the Court's decision on the Request for the indication of provisional measures, “to act in such a way as will enable any order the Court may make on this Request to have its appropriate effects”. A copy of that letter was transmitted to the Agent of India.

6. By letter dated 10 May 2017, the Registrar informed all Member States of the United Nations of the filing of the Application and the Request for the indication of provisional measures by India.

7. In conformity with Article 40, paragraph 3, of the Statute of the Court, the Registrar later notified the Members of the United Nations, through the Secretary-General, of the filing of the Application, by transmission of the printed bilingual text.

8. By an Order of 18 May 2017, the Court indicated the following provisional measures:

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

9. By a letter of 8 June 2017, the Co-Agent of Pakistan informed the Court that “the Government of the Islamic Republic of Pakistan ha[d] instructed the relevant departments of the government to give effect to the Order of the Court dated 18 May 2017”.

10. By an Order dated 13 June 2017, the President of the Court fixed 13 September 2017 and 13 December 2017 as the respective time-limits for the filing of a Memorial by India and of a Counter-Memorial by Pakistan. Those pleadings were filed within the time-limits so fixed.

11. Since the Court included upon the Bench no judge of Pakistani nationality, Pakistan proceeded to exercise the right conferred upon it by Article 31, paragraph 2, of the Statute to choose a judge ad hoc to sit in the case; it chose Mr. Tassaduq Hussain Jillani.

12. Pursuant to the instructions of the Court under Article 43, paragraph 1, of the Rules of Court, the Registrar addressed to States parties to the Vienna Convention and to States parties to the Optional Protocol the notifications provided for in Article 63, paragraph 1, of the Statute of the Court.

13. By an Order dated 17 January 2018, the Court authorized the submission of a Reply by India and a Rejoinder by Pakistan and fixed 17 April 2018 and 17 July 2018 as the respective time-limits for the filing of those pleadings. The Reply and the Rejoinder were filed within the time-limits thus fixed.

14. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court, after ascertaining the views of the Parties, decided that copies of the pleadings and documents annexed would be made accessible to the public on the opening of the oral proceedings.

15. By letters received in the Registry on 18 February 2019, the first day of hearings, Pakistan informed the Court of its intention to call an expert and to present audio-visual material during the oral proceedings. Further, Pakistan expressed its intention to produce a new document. By letters dated 19 February 2019, the Registrar informed the Parties that the Court, having ascertained the views of India, had decided that it would not be appropriate to grant Pakistan's requests in the circumstances of the case.

16. Public hearings were held from 18 to 21 February 2019, at which the Court heard the oral arguments and replies of:

*

17. In the Application, the following claims were made by India:

1. (1) A relief by way of immediate suspension of the sentence of death awarded to the accused.

2. (2) A relief by way of restitution in integrum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36 paragraph 1 (b), and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention; and

3. (3) Restraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan.

4. (4) If Pakistan is unable to annul the decision, then this Court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian national forthwith.”

18. In the written proceedings, the following submissions were presented by the Parties:

On behalf of the Government of India,

in the Memorial:

“For these reasons, the submissions of the Government of India, respectfully request this Court to adjudge and declare that Pakistan acted in egregious breach of Article 36 of the Vienna Convention on Consular Relations, in:

1. (i) Failing to inform India, without delay, of the arrest and/or detention of Jadhav,

2. (ii) Failing to inform Jadhav of his rights under Article 36 of the Vienna Convention on Consular Relations,

3. (iii) Declining access to Jadhav by consular officers of India, contrary to their right to visit Jadhav, while under custody, detention or in prison, and to converse and correspond with him, or to arrange for his legal representation.

And that pursuant to the foregoing,

1. (i) Declare that the sentence of the Military Court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36 paragraph 1 (b), and in defiance of elementary human rights of Jadhav, which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention;

2. (ii) Declare that India is entitled to restitutio in integrum;

3. (iii) Restrain Pakistan from giving effect to the sentence or conviction in any manner, and direct it to release the Indian National, Jadhav, forthwith, and to direct Pakistan to facilitate his safe passage to India;

4. (iv) In the alternative, and if this Court were to find that Jadhav is not to be released, then restrain Pakistan from giving effect to the sentence awarded by the Military Court, and direct it to take steps to annul the decision of the military court, as may be available to it under the laws in force in Pakistan, and direct a trial under the ordinary law before civilian courts, after excluding his confession that was recorded without affording consular access, in strict conformity with the provisions of the ICCPR, with full consular access and with a right to India to arrange for his legal representation.”

These submissions were confirmed in the Reply.

On behalf of the Government of Pakistan,

in the Counter-Memorial:

in the Rejoinder:

19. At the oral proceedings, the following submissions were presented by the Parties:

On behalf of the Government of India,

1. (1) The Government of India requests this Court to adjudge and declare that, Pakistan acted in egregious breach of Article 36 of the Vienna Convention on Consular Relations, 1963 (Vienna Convention) in:

   1. (i) Failing to inform India, without delay, of the detention of Jadhav;

   2. (ii) Failing to inform Jadhav of his rights under Article 36 of the Vienna Convention on Consular Relations, 1963;

   3. (iii) Declining access to Jadhav by consular officers of India, contrary to their right to visit Jadhav, while under custody, detention or in prison, and to converse and correspond with him, or to arrange for his legal representation.

And that pursuant to the foregoing,

1. (1) Declare that:

   1. (a) the sentence by Pakistan's Military Court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36 paragraph 1 (b), and in defiance of elementary human rights of Jadhav, which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights (ICCPR), is violative of international law and the provisions of the Vienna Convention;

   2. (b) India is entitled to restitutio in integrum;

2. (2) Annul the decision of the Military Court and restrain Pakistan from giving effect to the sentence or conviction in any manner; and

3. (3) Direct it to release the Indian National, Jadhav, forthwith, and to facilitate his safe passage to India;

4. (4) In the alternative, and if this Court were to find that Jadhav is not to be released, then

   1. (i) annul the decision of the Military Court and restrain Pakistan from giving effect to the sentence awarded by the Military Court, or in the further alternative,

   2. (ii) direct it to take steps to annul the decision of the military court, as may be available to it under the laws in force in Pakistan, and in either event,

   3. (iii) direct a trial under the ordinary law before civilian courts, after excluding his confession that was recorded without affording consular access, and in strict conformity with the provisions of the ICCPR, with full consular access and with a right to India to arrange for his legal representation.”

On behalf of the Government of Pakistan,

*

* *

I. Factual background

20. The Court observes that the Parties disagree on several facts relating to the dispute before it. Their points of disagreement will be mentioned where necessary.

21. Since 3 March 2016, an individual named Kulbhushan Sudhir Jadhav (hereinafter “Mr. Jadhav”) has been in the custody of Pakistani authorities. The circumstances of his apprehension remain in dispute between the Parties. According to India, Mr. Jadhav was kidnapped from Iran, where he was residing and carrying out business activities after his retirement from the Indian Navy. He was subsequently transferred to Pakistan and detained for interrogation. Pakistan contends that Mr. Jadhav, whom it accuses of performing acts of espionage and terrorism on behalf of India, was arrested in Balochistan near the border with Iran after illegally entering Pakistani territory. Pakistan explains that, at the moment of his arrest, Mr. Jadhav was in possession of an Indian passport bearing the name “Hussein Mubarak Patel”. India denies these allegations.

22. On 25 March 2016, Pakistan raised the issue with the High Commissioner of India in Islamabad and released a video in which Mr. Jadhav appears to confess to his involvement in acts of espionage and terrorism in Pakistan at the behest of India's foreign intelligence agency “Research and Analysis Wing” (also referred to by its acronym “RAW”). The circumstances under which the video was recorded are unknown to the Court. On the same day, Pakistan notified the permanent members of the Security Council of the United Nations of the matter.

23. Also on the same day, by means of a Note Verbale from the High Commission of India in Islamabad to the Ministry of Foreign Affairs of Pakistan, India noted the “purported arrest of an Indian” and requested consular access “at the earliest” to “the said individual”. Subsequently, and at least until 9 October 2017, India sent more than ten Notes Verbales in which it identified Mr. Jadhav as its national and sought consular access to him.

24. On 8 April 2016, Pakistani police authorities registered a “First Information Report” (hereinafter “FIR”), which is an official document recording information on the alleged commission of criminal offences. Pakistan explains that, once registered, a FIR enables police authorities to initiate an investigation. In this case, the FIR gave details of Mr. Jadhav's alleged involvement in espionage and terrorism activities and stated that he was “under interrogation” by Pakistani military authorities. A supplementary FIR was said to have been registered on 6 September 2016. On 22 July 2016, Mr. Jadhav made a confessional statement, which was allegedly recorded before a magistrate.

25. The trial of Mr. Jadhav started on 21 September 2016 and, according to Pakistan, was conducted before a Field General Court Martial. Various details of the trial were made public by means of a press release and a statement dated 10 and 14 April 2017 respectively. On the basis of this information (from the only source made available to the Court), it appears that Mr. Jadhav was tried under Section 59 of the Pakistan Army Act of 1952 and Section 3 of the Official Secrets Act of 1923. According to Pakistan, after the trial had begun, he was given an additional period of three weeks in order to facilitate the preparation of his defence, for which “a law qualified field officer” was specifically appointed. All witness statements were allegedly recorded under oath in the presence of Mr. Jadhav, who was allowed to put questions to the witnesses. During the trial, a law officer of Pakistan's Judge Advocate General Branch “remained a part of the Court”.

26. On 2 January 2017, the Adviser to the Prime Minister of Pakistan on Foreign Affairs sent a letter to the Secretary-General of the United Nations informing him of Mr. Jadhav's arrest and confession, which, in his view, confirmed India's involvement in activities aimed at “destabilizing Pakistan”.

27. On 23 January 2017, the Ministry of Foreign Affairs of Pakistan sent a “Letter of Assistance for Criminal Investigation against Indian National Kulbhushan Sudhair Jadhev” to the High Commission of India in Islamabad, seeking, in particular, support in “obtaining evidence, material and record for the criminal investigation” of Mr. Jadhav's activities. The letter referred to India's “earlier assurances of assistance, on a reciprocal basis, in criminal/terrorism matters”, as well as resolution 1373 (2001) adopted by the Security Council concerning measures to prevent and suppress threats to international peace and security caused by terrorist acts. Pakistan claims that, despite reiterated reminders, prior to the hearings before the Court, it has received no “substantive response” from India regarding this request. India, for its part, refers to two Notes Verbales dated 19 June and 11 December 2017, respectively, in which it stated that Pakistan's request had no legal basis and was not, in any event, supported by credible evidence.

28. On 21 March 2017, the Ministry of Foreign Affairs of Pakistan sent a Note Verbale to the High Commission of India in Islamabad indicating that India's request for consular access would be considered “in the light of Indian side's response to Pakistan's request for assistance in investigation process and early dispensation of justice”. On 31 March 2017, India replied that

29. On 10 April 2017, Pakistan announced that Mr. Jadhav had been sentenced to death. This was followed by a press statement issued on 14 April 2017 by the Adviser to the Prime Minister on Foreign Affairs. In addition to the above-mentioned details of Mr. Jadhav's trial (see paragraph 25 above), the statement referred to the availability of the following means of redress: an appeal before a Military Appellate Court within 40 days of the sentence; a mercy petition addressed to the Chief of Army Staff within 60 days of the Military Appellate Court's decision; and a similar petition addressed to the President of Pakistan within 90 days of the decision of the Chief of Army Staff.

30. On 26 April 2017, the High Commission of India in Islamabad transmitted to Pakistan, on behalf of Mr. Jadhav's mother, an “appeal” under Section 133 (B) and a petition to the Federal Government of Pakistan under Section 131 of the Pakistan Army Act. India asserts that, because Pakistan denied it access to the case file, both documents had to be prepared on the sole basis of information available in the public domain.

31. On 22 June 2017, the Inter Services Public Relations of Pakistan issued a press release announcing that Mr. Jadhav had made a mercy petition to the Chief of Army Staff after the rejection of his appeal by the Military Appellate Court. India claims that it has received no clear information on the circumstances of this appeal or the status of any appeal or petition concerning Mr. Jadhav's sentence. The above-mentioned press release also referred to another confessional statement by Mr. Jadhav recorded on a date and in circumstances that remain unknown to the Court.

32. On 10 November 2017, Pakistan informed India of its decision to allow Mr. Jadhav's wife to visit him on “humanitarian grounds”. The offer was extended to Mr. Jadhav's mother on 13 November 2017. At India's request, Pakistan gave assurances that it would ensure the free movement, safety and well-being of the visitors and allow the presence of a diplomatic representative from India. The visit took place on 25 December 2017; however, the Parties disagree over the extent to which Pakistan gave effect to its assurances.

II. Jurisdiction

33. India and Pakistan have been parties to the Vienna Convention since 28 December 1977 and 14 May 1969 respectively. They also were, at the time of the filing of the Application, parties to the Optional Protocol without any reservations or declarations.

34. India seeks to found the Court's jurisdiction on Article 36, paragraph 1, of the Statute and on Article I of the Optional Protocol, which provides:

35. The present dispute concerns the question of consular assistance with regard to the arrest, detention, trial and sentencing of Mr. Jadhav. The Court notes that Pakistan has not contested that the dispute relates to the interpretation and application of the Vienna Convention.

36. The Court also notes that, in its Application, written pleadings and final submissions, India asks the Court to declare that Pakistan has violated Mr. Jadhav's “elementary human rights”, “which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights” (hereinafter the “Covenant”). The Covenant entered into force for India on 10 July 1979 and for Pakistan on 23 September 2010. In this respect, the Court observes that its jurisdiction in the present case arises from Article I of the Optional Protocol and therefore does not extend to the determination of breaches of international law obligations other than those under the Vienna Convention (cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), pp. 45–46, para. 85, and p. 68, para. 153).

37. This conclusion does not preclude the Court from taking into account other obligations under international law in so far as they are relevant to the interpretation of the Vienna Convention (cf. ibid., pp. 45–46, para. 85).

38. In light of the above, the Court finds that it has jurisdiction under Article I of the Optional Protocol to entertain India's claims based on alleged violations of the Vienna Convention.

III. Admissibility

39. Pakistan has raised three objections to the admissibility of India's Application. These objections are based on India's alleged abuse of process, abuse of rights and unlawful conduct. The Court will now address each of these in turn.

IV. The alleged violations of the Vienna Convention on Consular Relations

67. The Court recalls that Pakistan does not expressly raise any objection to the jurisdiction of the Court. It notes, however, that Pakistan does advance several contentions concerning the applicability of certain provisions of the Vienna Convention to the case of Mr. Jadhav. The Court considers it appropriate to address these arguments first.

V. Remedies

125. The remedies requested by India in its final submissions have already been set out (see paragraph 19 above). In summary, India requests the Court to adjudge and declare that Pakistan acted in breach of Article 36 of the Vienna Convention on Consular Relations. Pursuant to the foregoing, India asks the Court to declare that the sentence of Pakistan's military court is violative of international law and the provisions of the Vienna Convention, and that India is entitled to restitutio in integrum. It also requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, to direct Pakistan to release Mr. Jadhav and to facilitate his safe passage to India. In the alternative, and if the Court were to find that Mr. Jadhav is not to be released, India requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence awarded by that court. In the further alternative, India asks the Court to direct Pakistan to take steps to annul the decision of the military court. In either event, it requests the Court to direct a trial under ordinary law before civilian courts, after excluding Mr. Jadhav's confession and in strict conformity with the provisions of the International Covenant on Civil and Political Rights, with full consular access and with a right for India to arrange for Mr. Jadhav's legal representation.

126. India argues that, in order to fashion an appropriate remedy that would meet the high standards of international human rights law, “of which Article 36 is . . . a significant element”, the Court should take into account the nature and extent of the violations, the degree of injury suffered, and the extent to which the trial did not follow the norms of due process. It maintains that where the breach of Article 36 of the Vienna Convention has resulted in the violation of the right under Article 14 of the Covenant, the principles of State responsibility must recognize the “synergy” between Article 14 and Article 36 and must therefore address the serious consequences of the breach of Article 36 which results in the violation of the right under Article 14 of the Covenant.

127. India seeks to distinguish the present case from the LaGrand and Avena cases, in which, according to India, the Court granted only review and reconsideration of the conviction and sentence, because it accepted the assertion of the United States that its criminal justice system was fully compliant with due process. India argues that Pakistan's criminal justice system by way of trial in the military courts does not satisfy the minimum standards of due process in its application to civilians. It contends that “relief by way of review and reconsideration” is “highly inadequate” as a remedy in the case of Mr. Jadhav. Referring to a judgment rendered by the Pakistan Supreme Court in 2016 in Said Zaman Khan et al. v. Federation of Pakistan (see paragraph 141 below), it contends that the remit of judicial review in Pakistan is narrow, because convictions by the military courts “can only be assailed on the ground of coram non judice, absence of jurisdiction, mala fide and malice in law”. While acknowledging that a judgment rendered by the Peshawar High Court in 2018 appears to have taken “a broader view”, India stresses that the Government of Pakistan has filed an appeal against that judgment and that the Supreme Court has suspended the operation of the judgment pending the appeal.

128. In support of its argument on an appropriate remedy, India refers to reports of certain international and non-governmental organizations on the military justice system in Pakistan.

*

129. Pakistan, for its part, contends that the relief sought by India (the annulment of a domestic criminal conviction, the annulment of a domestic criminal sentence, the release of a convicted prisoner) could only be granted by an appellate criminal court. According to Pakistan, granting such relief would transform the Court into a court of appeal of national criminal proceedings. It submits that the Court has repeatedly and consistently affirmed the principle that it does not have the function of a criminal appellate court and maintains that restitution to the status quo ante is not an appropriate remedy for a breach of Article 36 of the Vienna Convention, because, unlike legal assistance, consular assistance is not regarded as a predicate to a criminal proceeding.

130. Pakistan maintains that the appropriate remedy in this case would be, at most, effective review and reconsideration of the conviction and sentence of the accused, taking into account the potential effects of any violation of Article 36 of the Vienna Convention. It refers to the decision rendered by the Peshawar High Court in 2018, which set aside more than 70 convictions and sentences handed down by military courts. It contends that its domestic legal system provides for an established and defined process whereby the civil courts can undertake a substantive review of the decisions of military tribunals, in order to ensure procedural fairness has been afforded to the accused, and that its courts are well suited to carrying out a review and reconsideration that gives full weight to the effect of any violation of Article 36 of the Vienna Convention.

131. Pakistan further notes that clemency procedures can act as an appropriate supplement to judicial procedures for review and reconsideration, and points out that, at all material times, both judicial review and clemency procedures have been available to Mr. Jadhav and his family.

132. Pakistan adds that the conduct of India and Mr. Jadhav must be taken into account in any consideration of relief the Court undertakes, including whether the conduct is of such grave illegality that it militates against the granting of any relief at all.

* *

133. The Court has already found that Pakistan acted in breach of its obligations under Article 36 of the Vienna Convention,

1. (i) by not informing Mr. Jadhav of his rights under Article 36, paragraph 1 (b);

2. (ii) by not informing India, without delay, of the arrest and detention of Mr. Jadhav; and

3. (iii) by denying access to Mr. Jadhav by consular officers of India, contrary to their right, inter alia, to arrange for his legal representation (see paragraphs 99–119 above).

134. The Court considers that the breaches by Pakistan set out in (i) and (iii) in the paragraph above constitute internationally wrongful acts of a continuing character. Accordingly, the Court is of the view that Pakistan is under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Vienna Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraph 1 (a) and (c).

135. With regard to India's submission that the Court declare that the sentence handed down by Pakistan's military court is violative of international law and the provisions of the Vienna Convention, the Court recalls that its jurisdiction has its basis in Article I of the Optional Protocol. This jurisdiction is limited to the interpretation or application of the Vienna Convention and does not extend to India's claims based on any other rules of international law (see paragraph 36 above). India refers to Article 14 of the International Covenant on Civil and Political Rights to support its requests for remedies. In accordance with the rule reflected in Article 31, paragraph 3 (c), of the Vienna Convention on the Law of Treaties, the Covenant may be taken into account, together with the context, for the interpretation of the Vienna Convention on Consular Relations. The Court notes, however, that the remedy to be ordered in this case has the purpose of providing reparation only for the injury caused by the internationally wrongful act of Pakistan that falls within the Court's jurisdiction, namely its breach of obligations under Article 36 of the Vienna Convention on Consular Relations, and not of the Covenant.

136. As regards India's claim based on the Vienna Convention, the Court considers that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of the provisions of the Vienna Convention. In the Avena case, the Court confirmed that “the case before it concerns Article 36 of the Vienna Convention and not the correctness as such of any conviction or sentencing”, and that “it is not the convictions and sentences of the Mexican nationals which are to be regarded as a violation of international law, but solely certain breaches of treaty obligations [on consular access] which preceded them” (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 60, paras. 122–123).

137. With regard to India's contention that it is entitled to restitutio in integrum and its request to annul the decision of the military court and to restrain Pakistan from giving effect to the sentence or conviction, and its further request to direct Pakistan to take steps to annul the decision of the military court, to release Mr. Jadhav and to facilitate his safe passage to India, the Court reiterates that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention. The Court also recalls that “[i]t is not to be presumed . . . that partial or total annulment of conviction or sentence provides the necessary and sole remedy” in cases of violations of Article 36 of the Vienna Convention (ibid., p. 60, para. 123). Thus, the Court finds that these submissions made by India cannot be upheld.

138. The Court reaffirms that “it is a principle of international law . . . that any breach of an engagement involves an obligation to make reparation” and that “reparation must, as far as possible, wipe out all the consequences of the illegal act” (Factory at Chorzów (Claim for Indemnity), Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, pp. 29, 47). The Court considers the appropriate remedy in this case to be effective review and reconsideration of the conviction and sentence of Mr. Jadhav. This is consistent with the approach that the Court has taken in cases of violations of Article 36 of the Convention (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 514, para. 125; Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), pp. 65–66, paras. 138–140 and p. 73, para. 153). It is also in line with what the Applicant asks the Court to adjudge and declare in the present case. In the Court's view, India ultimately requests effective remedies for the breaches of the Convention by Pakistan. The Court notes that Pakistan acknowledges that the appropriate remedy in the present case would be effective review and reconsideration of the conviction and sentence.

139. The Court considers that a special emphasis must be placed on the need for the review and reconsideration to be effective. The review and reconsideration of the conviction and sentence of Mr. Jadhav, in order to be effective, must ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined. It presupposes the existence of a procedure which is suitable for this purpose. The Court observes that it is normally the judicial process which is suited to the task of review and reconsideration (see Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), pp. 65–66, paras. 138–140).

140. In the present case, the death sentence imposed on Mr. Jadhav by the Field General Court Martial of Pakistan was confirmed by the Chief of Army Staff on 10 April 2017. The evidence suggests that Mr. Jadhav appealed to the Military Appellate Court under Section 133 (B) of the Pakistan Army Act of 1952, but that the appeal was rejected. With regard to the petition procedure, the evidence suggests that Mr. Jadhav has made a mercy petition to the Chief of Army Staff, and that the mother of Mr. Jadhav has sought to file a petition with the Federal Government of Pakistan under Section 131 and an appeal under Section 133 (B) of the Act. There is no evidence before the Court to indicate the outcome of those petitions or that appeal.

141. The Court notes that, according to Pakistan, the High Courts of Pakistan can exercise review jurisdiction. The Court observes, however, that Article 199, paragraph 3, of the Constitution of Pakistan has been interpreted by the Supreme Court of Pakistan as limiting the availability of such review for a person who is subject to any law relating to the Armed Forces of Pakistan, including the Pakistan Army Act of 1952. The Supreme Court has stated that the High Courts and the Supreme Court may exercise judicial review over a decision of the Field General Court Martial on “the grounds of coram non judice, without jurisdiction or suffering from mala fides, including malice in law only” (Said Zaman Khan et al. v. Federation of Pakistan, Supreme Court of Pakistan, Civil Petition No. 842 of 2016, 29 August 2016, para. 73). Article 8, paragraph 1, of the Constitution provides that any law which is inconsistent with fundamental rights guaranteed under the Constitution is void, but this provision does not apply to the Pakistan Army Act of 1952 by virtue of a constitutional amendment (ibid., para. 125). Thus, it is not clear whether judicial review of a decision of a military court is available on the ground that there has been a violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention.

142. The Court takes note of the decision of the Peshawar High Court in 2018. The High Court held that it had the legal mandate positively to interfere with decisions of military courts “[i]f the case of the prosecution was based, firstly, on no evidence, secondly, insufficient evidence, thirdly, absence of jurisdiction, finally malice of facts & law” (Abdur Rashid et al. v. Federation of Pakistan, High Court of Peshawar, Writ Petition 536-P of 2018, 18 October 2018, pp. 147–148). The Government of Pakistan has appealed the decision and the case was still pending at the close of the oral proceedings in the present case.

143. The Court confirms that the clemency process is not sufficient in itself to serve as an appropriate means of review and reconsideration but that

The evidence before the Court suggests that two clemency procedures are available to Mr. Jadhav: a mercy petition to the Chief of Army Staff within 60 days of the decision by the Appellate Court and a mercy petition to the President of Pakistan within 90 days of the decision of the Chief of Army Staff on the mercy petition (see paragraph 29 above). The outcome of the petition submitted by Mr. Jadhav to the Chief of Army Staff (see paragraph 140 above) has not, however, been made known to the Court. No evidence has been submitted to the Court regarding the presidential clemency procedure.

144. In light of these circumstances, the Court considers it imperative to re-emphasize that the review and reconsideration of the conviction and sentence of Mr. Jadhav must be effective.

145. In this regard, the Court takes full cognizance of the representations made by Pakistan. During the oral proceedings, the Agent of Pakistan declared that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”. Counsel for Pakistan assured the Court that the High Courts of Pakistan exercise “effective review jurisdiction”, giving as an example the decision of the Peshawar High Court in 2018 (see paragraph 142 above). The Court points out that respect for the principles of a fair trial is of cardinal importance in any review and reconsideration, and that, in the circumstances of the present case, it is essential for the review and reconsideration of the conviction and sentence of Mr. Jadhav to be effective. The Court considers that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process. In particular, any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration.

146. The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan (cf. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 514, para. 125). Nevertheless, freedom in the choice of means is not without qualification (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 62, para. 131). The obligation to provide effective review and reconsideration is “an obligation of result” which “must be performed unconditionally” (Request for Interpretation of the Judgment of 31 March 2004 in the Case concerningAvena and Other Mexican Nationals (Mexico v.United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 17, para. 44). Consequently, Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.

147. To conclude, the Court finds that Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention, taking account of paragraphs 139, 145 and 146 of this Judgment.

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148. The Court recalls that it indicated a provisional measure directing Pakistan to take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in the present proceedings (Jadhav (India v. Pakistan), Provisional Measures, Order of 18 May 2017, I.C.J. Reports 2017, p. 246, para. 61 (I)). The Court considers that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav.

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149. For these reasons,

The Court,

(1) Unanimously,

Finds that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017;

(2) By fifteen votes to one,

Rejects the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible;

(3) By fifteen votes to one,

Finds that, by not informing Mr. Kulbhushan Sudhir Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, the Islamic Republic of Pakistan breached the obligations incumbent upon it under that provision;

(4) By fifteen votes to one,

Finds that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations;

(5) By fifteen votes to one,

Finds that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations;

(6) By fifteen votes to one,

Findsthat the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations;

(7) By fifteen votes to one,

Finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention, taking account of paragraphs 139, 145 and 146 of this Judgment;

(8) By fifteen votes to one,

Declaresthat a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this seventeenth day of July, two thousand and nineteen, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of India and the Government of the Islamic Republic of Pakistan, respectively.

(Signed) Abdulqawi Ahmed Yusuf,President.

(Signed) Jean-Pelé Fomété;,Deputy-Registrar.

Judge Cançado Trindade appends a separate opinion to the Judgment of the Court; Judges Sebutinde, Robinson and Iwasawa append declarations to the Judgment of the Court; Judge ad hoc Jillani appends a dissenting opinion to the Judgment of the Court.

(Initialled) A.A.Y.

(Initialled) J-P.F.