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Jadhav case - (18 May 2017)

Power of Court to indicate provisional measures will be exercised only if there is urgency, that, irreparable prejudice will be caused to rights in dispute before Court gives its final decision


In facts of present case, On 8th May, 2017, Government of Republic of India filed in Registry of Court an Application instituting proceedings against Islamic Republic of Pakistan alleging violations of Vienna Convention on Consular Relations of 24th April, 1963 “in matter of detention and trial of an Indian National, Mr. Kulbhushan Sudhir Jadhav”, sentenced to death in Pakistan. In its Application, India seeks to found jurisdiction of Court on Article 36, paragraph 1, of Statute of Court and Article I of Optional Protocol concerning Compulsory Settlement of Disputes, which accompanies Vienna Convention on Consular Relations. On 8th May, 2017, accompanying its Application, India also submitted a Request for indication of provisional measures, referring to Article 41 of Statute of the Court and to Articles 73, 74 and 75 of Rules of Court.

Mr. Jadhav has been in custody of Pakistani authorities since 3rd March, 2016, although circumstances of his arrest remain are in dispute between Parties. Applicant claims to have been informed of this arrest on 25th March, 2016, when Foreign Secretary of Pakistan raised matter with Indian High Commissioner in Pakistan. As of that date, India requested consular access to Mr. Jadhav. India reiterated its request on numerous occasions, to no avail. According to a press statement issued on 14th April, 2017 by an adviser on foreign affairs to Prime Minister of Pakistan, Mr. Jadhav was sentenced to death on 10th April, 2017 by a Court Martial due to activities of “espionage, sabotage and terrorism”. India submits that, it protested and continued to press for consular access and information concerning the proceedings against Mr. Jadhav.

Court may indicate provisional measures only if provisions relied on by Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need not satisfy itself in a definitive manner that, it has jurisdiction as regards merits of case. India and Pakistan have been parties to Vienna Convention since 28th December, 1977 and 14th May, 1969, respectively, and to Optional Protocol since 28th December, 1977 and 29th April, 1976, respectively. Neither of them has made reservations to those instruments. When jurisdiction of Court is founded on particular “treaties and conventions in force” pursuant to Article 36, paragraph 1, of its Statute, “it becomes irrelevant to consider objections to other possible bases of jurisdiction”. Therefore, any reservations contained in declarations made by Parties under Article 36, paragraph 2, of Statute cannot impede Court’s jurisdiction specially provided for in Optional Protocol.

Article I of Optional Protocol provides that, Court has jurisdiction over disputes arising out of interpretation or application of [Vienna] Convention. In order to determine whether it has jurisdiction — even prima facie — Court must also ascertain whether such a dispute is one over which it might have jurisdiction ratione materiae on basis of Article I of Optional Protocol. In this regard, Court notes that, acts alleged by India are capable of falling within scope of Article 36, paragraph 1, of Vienna Convention, which, guarantees right of sending State to communicate with and have access to its nationals in custody of receiving State (sub-paragraphs (a) and (c)), as well as right of its nationals to be informed of their rights (sub-paragraph (b)). Court considers that, alleged failure by Pakistan to provide requisite consular notifications with regard to arrest and detention of Mr. Jadhav, as well as alleged failure to allow communication and provide access to him, appear to be capable of falling within scope of Vienna Convention ratione materiae. Vienna Convention does not contain express provisions excluding from its scope persons suspected of espionage or terrorism. Consequently, Court considers that, it has prima facie jurisdiction under Article I of Optional Protocol to entertain dispute between Parties.

Power of Court to indicate provisional measures under Article 41 of Statute has as its object preservation of respective rights claimed by parties in a case, pending its decision on merits thereof. It follows that, Court must be concerned to preserve by such measures rights which may subsequently be adjudged by it to belong to either party. Therefore, Court may exercise this power only, if it is satisfied that, rights asserted by party requesting such measures are at least plausible. Rights to consular notification and access between a State and its nationals, as well as obligations of detaining State to inform without delay the person concerned of his rights with regard to consular assistance and to allow their exercise, are recognized in Article 36, paragraph 1, of Vienna Convention. India submits that, one of its nationals has been arrested, detained, tried and sentenced to death in Pakistan without having been notified by same State or afforded access to him. Applicant also asserts that, Mr. Jadhav has not been informed without delay of his rights with regard to consular assistance or allowed to exercise them. Pakistan does not challenge these assertions. In view of Court, in view of legal arguments and evidence presented, it appears that rights invoked by India in present case on basis of Article 36, paragraph 1, of the Vienna Convention are plausible.

Provisional measures sought by India consist in ensuring that, Government of Pakistan will take no action that might prejudice its alleged rights, in particular that it will take all measures necessary to prevent Mr. Jadhav from being executed before the Court renders its final decision. Court considers that, these measures are aimed at preserving rights of India and of Mr. Jadhav under Article 36, paragraph 1, of Vienna Convention. Therefore, a link exists between rights claimed by India and provisional measures being sought.

Court, pursuant to Article 41 of its Statute, has power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings. However, power of Court to indicate provisional measures will be exercised only if there is urgency, in sense that, there is a real and imminent risk that irreparable prejudice will be caused to rights in dispute before Court gives its final decision. Court must therefore consider whether such a risk exists at this stage of proceedings.

There is considerable uncertainty as to when a decision on any appeal or petition could be rendered and, if sentence is maintained, as to when Mr. Jadhav could be executed. Pakistan has indicated that, any execution of Mr. Jadhav would probably not take place before end of August 2017. This suggests that, an execution could take place at any moment thereafter, before Court has given its final decision in case. Court also notes that Pakistan has given no assurance that, Mr. Jadhav will not be executed before Court has rendered its final decision. In those circumstances, Court is satisfied that, there is urgency in present case. Fact that Mr. Jadhav could eventually petition Pakistani authorities for clemency, or that date of his execution has not yet been fixed, are not per se circumstances that should preclude Court from indicating provisional measures.

Court concludes that, conditions required by its Statute for it to indicate provisional measures are met and that certain measures must be indicated in order to protect the rights claimed by India pending its final decision. Pakistan shall take all measures at its disposal to ensure that, Mr. Jadhav is not executed pending the final decision in these proceedings and shall inform the Court of all measures taken in implementation of the present rder.


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