525

       DISSENTING OPINION OF JUDGE AD HOC JILLANI

   India’s Application is inadmissible because its conduct amounts to an abuse of
rights — The 2008 Agreement between India and Pakistan governs specifically
questions of consular access and assistance in cases of arrest and detention on
national security grounds — Pakistan lawfully withheld consular access and
assistance while examining the case of Mr. Jadhav on its merits — Even if the
Vienna Convention is applicable in the present case, Pakistan has committed no
breach of Article 36 thereof — Pakistan has already in place the procedures
necessary for ensuring the effective review and reconsideration of the conviction
and sentence of Mr. Jadhav.

   1. Much to my regret and with greatest respect, I could not endorse
several parts of the Judgment and some fundamental points. First, I con-
sider that the Court should have found India’s Application to be inadmis-
sible in light of its conduct in the present case, which amounts to an abuse
of rights. In my view, India’s reliance on the Vienna Convention on Con-
sular Relations (hereinafter “Vienna Convention” or “VCCR”) in the
present case is misplaced and subverts the very object and purpose of that
instrument. Second, the Court has misconstrued and rendered meaning-
less Article 73, paragraph 2, of the Vienna Convention, which does not
preclude States parties from entering into subsequent bilateral agree-
ments. Notwithstanding that, the Court has ignored the legal eﬀect of the
2008 Agreement on Consular Access between India and Pakistan (herein-
after “2008 Agreement”) and speciﬁcally its point (vi). In my view, by
concluding the 2008 Agreement, the Parties (India and Pakistan) aimed
to clarify the application of certain provisions of the Vienna Convention
to the extent of their bilateral relations, namely by recognizing that each
contracting State may consider on the merits whether to allow access and
consular assistance to nationals of the other contracting State arrested or
detained on “political or security grounds”. Third, even if the Vienna
Convention is applicable to the case of Mr. Jadhav, Pakistan’s conduct
does not constitute a breach of its obligations under paragraph 1 of Arti-
cle 36 thereof. Fourth, while the Court has taken note of the existing legal
framework in Pakistan, it has failed to recognize that the existing judicial
review in Pakistan already substantially responds to the relief ordered by
the Court. Finally, the Court’s Judgment appears to set a dangerous pre-
cedent at the times when States are increasingly confronted with transna-
tional terrorist activities and impending threats to national security.
Terrorism has become a systemic weapon of war and nations would
ignore it at their own peril. Such threats may legitimately justify certain

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526                     jadhav (diss. op. jillani)

limits to be imposed on the scope of application of Article 36 of the
Vienna Convention on Consular Relations, in the bilateral relations
between any two States at any given time.

  I. India’s Application Should Have Been Declared Inadmissible
                as It Amounts to an Abuse of Rights

  2. The present case is distinguishable from the Court’s Avena and
LaGrand jurisprudence on which the Court has heavily relied. Among
various distinguishing factors, the most important one is that the Court
was faced here with special circumstances of an individual arrested,
detained, tried and convicted for espionage and terrorism oﬀences. The
Vienna Convention, having been concluded with the view to contributing
“to the development of friendly relations among nations”, it can hardly
be the case that the drafters of that Convention intended for its rights and
obligations to apply to spies and nationals of the sending State (India) on
secret missions to threaten and undermine the national security of the
receiving State (Pakistan).

   3. In these proceedings, Pakistan rightly submitted that India commit-
ted an abuse of rights: (a) by providing Mr. Jadhav with an authentic
passport under a false Muslim identity, Hussein Mubarak Patel;
(b) by seeking to exercise its consular rights in order to have access to
Mr. Jadhav, an espionage agent ; and (c) by invoking the Court’s provi-
sional measures jurisdiction with an exaggerated characterization of the
urgency of the situation and a lack of candour regarding the facts (Counter-
Memorial of Pakistan (hereinafter “CMP”), para. 151 ﬀ. ; CR 2019/2,
p. 25, para. 40 (Qureshi)). Pakistan further argued that India acted in bad
faith by refusing to accede to Pakistan’s requests for information con-
cerning the authenticity of Mr. Jadhav’s passport and to otherwise assist
Pakistan in the criminal investigation, while making persistent demands
of consular access to Mr. Jadhav (CMP, paras. 171-185 ; CR 2019/2,
p. 25, para. 40 (Qureshi)). The Judgment of the Court rather laconically
ignores the extensive evidence presented by Pakistan as to the authen-
ticity of Mr. Jadhav’s passport, namely the experts’ report on the subject,
as well as the lack of India’s co-operation in the investigation of the
most serious oﬀences committed by Mr. Jadhav in Pakistan.

  4. In my view, the question of the abuse of rights is closely intertwined
with the fundamental principle of good faith. Article 26 of the Vienna
Convention on the Law of Treaties is unequivocal when it provides that

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527                     jadhav (diss. op. jillani)

“[e]very treaty in force is binding upon the parties to it and must be per-
formed by them in good faith”. The rights and obligations stipulated in
an international treaty are to be exercised and performed in accordance
with the object and purpose for which those rights were created. The
Vienna Convention on Consular Relations, in its very preamble, reiter-
ates “the Purposes and Principles of the Charter of the United Nations
concerning the sovereign equality of States, the maintenance of interna-
tional peace and security, and the promotion of friendly relations among
nations” and that “an international convention on consular relations,
privileges and immunities would also contribute to the development of
friendly relations among nations, irrespective of their diﬀering constitu-
tional and social systems”. Thus, the very object and purpose of this Con-
vention was to promote international peace and security and friendly
relations amongst nations. That object and purpose informed the scope
of application of certain fundamental rights set out in the Convention,
such as Article 36 thereof.
   5. India’s conduct and invocation of paragraph 1 of Article 36 cannot
be reconciled with the object and purpose of the Vienna Convention. The
Applicant has clearly abused its right when claiming consular access to its
national who had been instructed to commit serious crimes of terrorism
and espionage in Pakistan. India has provided no rebuttal throughout the
proceedings as to the circumstances in which it had provided an authentic
Indian passport, with false identity, to Mr. Jadhav and the particulars of
Mr. Jadhav’s mission in Pakistan, despite the serious nature of the crimes
he has committed. The Court should have drawn the necessary inferences
therefrom. At the very least, the Court should have taken India’s conduct
into account when determining whether Pakistan has actually breached
its obligations under Article 36 of the Vienna Convention, and ultimately
the nature of any relief. The Court has decided not to do so considering
that “there is no basis under the Vienna Convention for a State to condi-
tion the fulﬁlment of its obligations under Article 36 on the other State’s
compliance with other international law obligations” (see Judgment, para-
graph 123). With all due respect that I owe to the Court, I believe the
Vienna Convention cannot and should not be read in such clinical isola-
tion from general international law.

   6. Moreover, the rights and obligations as set out in paragraph 1 of
Article 36 of the Vienna Convention cannot be construed independently
from its paragraph 2, which expressly qualiﬁes the exercise of those rights
by the sending State and its national when it provides that these “shall be
exercised in conformity with the laws and regulations of the receiving
State [Pakistan], subject to the proviso, however, that the said laws and
regulations must enable full eﬀect to be given to the purposes for which
the rights accorded under this article are intended”.
   7. Since 31 May 2017, Pakistan has sent six requests to India for neces-
sary co-operation in the investigation of the criminal case and about the

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528                       jadhav (diss. op. jillani)

passport issue, but these were of no avail (Rejoinder of Pakistan (herein-
after “RP”), para. 49). Pakistan even oﬀered to extradite Mr. Jadhav to
India, if India was prepared to indict him under the Indian laws. In its
Note Verbale to India’s Ministry of Foreign Aﬀairs dated 26 October
2017, the Ministry of Foreign Aﬀairs of Pakistan — reiterating its request
for assistance in the investigation in the criminal case registered against
Mr. Jadhav in compliance with the United Nations Security Council reso-
lution 1373 (2001) — oﬀered that “the Government of Pakistan is pre-
pared to consider any request for extradition that the Government of
India may make in the event that Commander Jadhav is considered to be
a criminal under the law of India” (CMP, Vol. 2, Ann. 44). But India
persisted in its non co-operation. Through the same Note Verbale, Paki-
stan speciﬁcally asked six questions to India regarding the authenticity of
the Indian passport (Passport No. L9630722) recovered from Mr. Jad-
hav :
   “(1) [Is] Commander Jadhav . . . indeed Commander Jadhav or ‘Hus-
        sein Mubarak Patel’[?]
    (2) If he is not ‘Hussein Mubarak Patel’, does such a person exist?

      (3) If ‘Hussein Mubarak Patel’ does exist or does not exist, what
          attempts has the Government of India made at the very latest
          since 23rd January 2017 to investigate how Commander Jadhav
          was able to obtain what appears to be an authentic Indian pass-
          port issued by the competent authorities in India?
      (4) In the alternative, is it the Government of India’s position that
          Commander Jadhav was in possession of a false and inaccurate
          document [such that] either:
          (a) . . . his name is not ‘Hussein Mubarak Patel’; or
          (b) . . . it is not a passport from the competent Indian authorities?

      (5) If that is the case, does the Government of India consider that
          Commander Jadhav has committed a crime or crimes under
          Indian law? If so, what is/are the crimes?
      (6) What is the actual authentic passport for Commander Kulbhu-
          shan Sudhir Jadhav (assuming he was issued with a passport)?
          Please provide full particulars of the date of issue, date of expiry,
          passport number, place of issue, name and photograph in the
          actual (presently valid) passport issued to Commander Jadhav if
          such a document exists . . . [T]he Islamic Republic of Pakistan has
          already put the Republic of India on notice that it has failed to
          establish the Indian nationality of Commander Jadhav.” (CMP,
          p. 60, para. 208 and Ann. 44, pp. 2-3.)

  8. Subsequent investigation appears to suggest that Mr. Jadhav was in
possession of two Indian passports, one with passport No. E6934766 and

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529                       jadhav (diss. op. jillani)

another one No. L9630722. The accounts of three respected Indian jour-
nalists, Mr. Karan Thapar, Mr. Praveen Swami and Mr. Chandan Nandy,
based on interviews conducted with Indian oﬃcials, conﬁrm that Mr. Jad-
hav was a Research and Analysis Wing (RAW) agent (CMP, Vol. 2,
Anns. 27 and 28 ; CR 2019/2, pp. 20-22, paras. 29-33 (Qureshi)). The least
India could have done in the circumstances was to perform searches in its
passport databases to check the authenticity of Mr. Jadhav’s passport
and to furnish that information to the Pakistani authorities so as to facil-
itate further investigation.
   9. After persistent refusal by India to co-operate in the criminal inves-
tigation, Pakistan got the passport examined by an independent forensic
expert who had served in India and Pakistan. His report concluded that
the passport was authentic and genuine and India did not challenge the
veracity of the said report either in its written or oral submissions. In his
report, Mr. Westgate candidly stated as follows :
         “From my knowledge and understanding of the airport immigra-
      tion system in India, the immigration counters are connected to a
      central database, and any irregularities in the authenticity [of] a pass-
      port would ordinarily be ﬂagged on such a database. Thus I would
      observe that the frequency with which the individual presented the
      passport at the immigration counter in India for entry and for exit
      [Mr. Westgate having earlier observed that it had been used on at
      least 17 occasions] is very strong supportive evidence of the authentic
      nature of the passport. In addition, if there were issues concerning the
      holder of an authentic passport, such as an Interpol I24/7 notice, and
      Indian central watch-list entry, criminal proceedings, issues relating
      to identity, these would be very likely to be spotted at the point of
      encounter with the immigration authorities when the passport was
      scrutinised by oﬃcials in India. Such oﬃcials would be examining
      hundreds of passports on a daily basis, and would thus have consid-
      erably more experience in respect of such documents.” (CMP, Vol. 7,
      Ann. 141, para. 15.)
  10. The issuance of such a document and the persistent refusal to
co-operate in the investigation of the same are further contrary to the
United Nations Security Council resolution 1373, which, inter alia, man-
dates that all United Nations Member States shall

   “(f) [a]ﬀord one another the greatest measure of assistance in connec-
        tion with criminal investigations or criminal proceedings relating
        to the ﬁnancing or support of terrorist acts, including assistance
        in obtaining evidence in their possession necessary for the pro-
        ceedings;

      (g) [p]revent the movement of terrorists or terrorist groups by eﬀec-
          tive border controls and controls on issuance of identity papers

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530                     jadhav (diss. op. jillani)

         and travel documents, and through measures for preventing
         counterfeiting, forgery or fraudulent use of identity papers and
         travel documents”.

   11. India refused to extend assistance to Pakistan on the grounds that
there was no mutual legal assistance treaty (MLAT) between the two
States. India’s reasoning is not tenable because the absence of such a
treaty would not absolve India of its obligations under the United Nations
Security Council resolutions adopted pursuant to Chapter VII of the
United Nations Charter. India also misrepresents the factual position in
as much as there is a mutual legal agreement, i.e., the 2008 Agreement
which was negotiated over a period of three years and replaced the earlier
agreement which had operated at that time since 1982. It is interesting to
note that point (iii) of the 1982 Agreement contained a provision analo-
gous to point (vi) of the 2008 Agreement, which stipulated as follows :
         “Each Government shall give consular access on reciprocal basis
      to nationals of one country under arrest, detention or imprisonment
      in the other country, provided they are not apprehended for political
      or security reasons/oﬀences. Request for such access and the terms
      thereof shall be considered on the merits of each case by the Govern-
      ment arresting the person or holding the detenus/prisoners and the
      decision on such requests shall be conveyed to the other Government
      within four weeks from the date of receipt of the request.” (Repro-
      duced in CMP, Vol. 7, Ann. 160.)

Moreover, as further pointed out by Pakistan in their oral submissions, at
the conclusion of the 2008 Agreement, a joint statement was issued by
both States that they were working together to combat terrorism.
Point (vi) of the 2008 Agreement has to be given a purposive interpreta-
tion in the light of the intent of both countries. This provision has to be
interpreted in good faith in accordance with its ordinary meaning.
   12. Although the Court’s jurisdiction only extends to disputes concern-
ing the interpretation or application of the Vienna Convention on Con-
sular Relations, it cannot ignore the surrounding legal environment when
considering whether Pakistan has complied with its obligations under
paragraph 1 of Article 36 of that Convention, nor can it be examined
outside the context of strenuous relations and escalating tensions between
the Parties, which pose an imminent threat to peace and security in the
region.
   13. According to Pakistan, Mr. Jadhav was apprehended by security
agencies when he entered Balochistan from Iran (Saravan border). Dur-
ing his interrogation as well as in his judicial confession (before a magis-

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531                       jadhav (diss. op. jillani)

trate), he admitted that he was working for RAW (Research and Analysis
Wing) and that he had planned and executed acts of terror causing loss of
life and destruction of property in two major areas/cities of Pakistan
(Balochistan and Karachi) with a view to destabilizing Pakistan. He also
named 15 individuals, mostly residing in India, who were his accomplices
and handlers. The extract from his confession is revealing as to the abuse
of rights on the part of India in now bringing these proceedings before
the Court :

   “1. I am Commander Kulbhushan Jadhev Number 41558Z. I am a
       serving oﬃcer of the Indian Navy. I am from the cadre of engineer-
       ing department in the Indian Navy and my cover name was Hus-
       sain Mubarak Patel, which I had adopted for carrying out
       intelligence gathering for the Indian agencies.
    2. I joined National Defence Academy in 1987 and subsequently
       joined the Indian Navy in 1991 and was commissioned in the
       Indian Navy. I served in the Indian Navy till around December
       2001 when Indian Parliament attacks occurred. That was when I
       started contributing my services towards the gathering of informa-
       tion and intelligence within India. I lived in the city of Mumbai in
       India.
    3. I am still a serving oﬃcer in the Indian Navy and will be due for
       retirement by 2022 as a commissioned oﬃcer in the Indian Navy.
       After having completed 14 years of service by 2002, I commenced
       intelligence operations in 2003 and established a small business in
       Chabhahar in Iran. As I was able to achieve undetected existence
       and visited Karachi in 2003 and 2004 and having done some basic
       assignments within India for RAW, I was picked up by RAW in
       end of 2013. Ever since, I have been directing various activities in
       Baluchistan and Karachi at the behest of RAW. I was basically the
       man of Mr. Anil Kumar Gupta who is the Joint Secretary RAW
       and his contacts in Pakistan especially in the Baloch student organ-
       ization.

      4. My purpose was to hold meetings with Baloch insurgents and carry
         out activities with their collaboration. These activities have been of
         criminal nature. These also include anti-national and terrorist
         activities leading to the killing or maiming of the Pakistani citizens.
         I realized during this process that RAW is involved in activities
         related to the Baloch Liberation Movement within Pakistan and
         the region around it. Finances are fed into the Baloch movement
         through various contacts and ways and means into the Baloch lib-
         eration. The activities of these Baloch liberation and RAW han-
         dlers are criminal and anti-Pakistan. Mostly these activities are
         centred around Ports of Gwadar, Pasni, Jeevani and various other
         installations which are around the coast aims to damage the vari-

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532                      jadhav (diss. op. jillani)

        ous installations which are in Balochistan. The activities are revolv-
        ing around trying to create a criminal mindset within the Baloch
        people and lead to instability within Pakistan.

      5. In my pursuit towards achieving the set targets by my handler in
         RAW, I was trying to cross over into Pakistan from the Saravan
         border in Iran on 3rd March 2016 and was apprehended by the
         Pakistani authorities on the Pakistani side. The main aim of this
         crossing over into Pakistan was to hold meetings with the BSN
         personnel in Balochistan for carrying out various activities, which
         they were supposed to undertake. I also planned to carry their
         messages to the Indian agencies. The main issues regarding this
         were that they were planning to conduct some operations within
         the immediate future. So that was to be discussed mainly and that
         was the main aim of coming to Pakistan.
      6. So the moment I realized that my intelligence operations ha[d] been
         compromised on my being detained in Pakistan, I revealed that I
         am an Indian Naval oﬃcer and it is on mentioning that I am Indian
         Naval oﬃcer [that] the total perception of the establishment of
         Pakistan changed and they treated me very honourably and with
         utmost respect and due regards, and have handled me subsequently
         on [sic] a more professional and courteous way. They have handled
         me in a way that beﬁts that of an oﬃcer. Once I realized that I have
         been compromised in my process of intelligence operations I
         decided to just end the mess I have landed myself in and wanted
         to subsequently move on and co-operate with the authorities in
         removing the complications which I have landed myself and my
         family members into. Whatever I am stating now is the truth and
         is not under any duress or pressure. I am doing it totally out of my
         own desire to come clean out of this entire process which I have
         gone through for the last 14 years.” (CMP, Vol. 2, Ann. 17; see
         also CMP, pp. 10-12, par. 25.)
   14. Two cases have been initiated against Mr. Jadhav, one for espio-
nage and the other one under anti-terrorism laws. With regard to the
espionage case, Pakistan had enough evidence to try and convict Mr. Jad-
hav which it did in accordance with the laws of Pakistan. He was tried by
a special military court (Field General Court Martial), where he was pro-
vided with an independent competent legal attorney and was explained
the various routes of appeal that were available to him. However, with
regard to the terrorism oﬀences, Mr. Jadhav mentioned various accom-
plices, who India did not deny to be residing in India. Thus, Pakistan
requested India’s assistance regarding its investigation into the authentic-
ity of the passport which Mr. Jadhav was carrying, access to his bank and
cell phone records and interrogating the accomplices and handlers named
by him. Due to the fact that India has not co-operated, Mr. Jadhav’s trial

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533                      jadhav (diss. op. jillani)

under the terrorism oﬀences has not proceeded. If Pakistan was concoct-
ing false charges and arbitrarily punishing and sentencing Mr. Jadhav,
the Pakistani courts would have found Mr. Jadhav guilty of the various
terrorism oﬀences he had himself confessed of being involved in. This
highlights the bona ﬁde intention of Pakistan to uphold the truth and
dispense justice while the silence and lack of co-operation from India lend
credence to the confession made by Mr. Jadhav, which clearly exposes
India’s involvement. According to Pakistan, Mr. Jadhav’s conduct of per-
petrating acts of terror is part of a chain of acts carried out by India to
destabilize Pakistan. Agent for Pakistan and Pakistan’s Attorney Gen-
eral, Mr. Anwar Mansoor Khan, stated in his oral submissions :

         “Pakistan, as a consequence of the Indian intervention along with
      others, is a major victim of terrorism where the country and its inno-
      cent citizens continue to ﬁght this menace both inside and on the
      borders. Pakistan has consequentially suﬀered more than 74,000 casu-
      alties and fatalities due to terrorism caused mainly by the interference
      of our neighbour India. It is in this context that Commander Kulb-
      hushan Jadhav, a serving oﬃcer of the Indian Navy, working for
      India’s Research and Analysis Wing (commonly called RAW, India’s
      brutal primary foreign intelligence agency) entered Pakistan, with a
      predetermined aim, on the instructions of the Government of India,
      to assist, plan and cause terrorism in Balochistan and the Sindh prov-
      inces and other places in the country. This much he has admitted
      before an independent judicial magistrate sitting in a court of compe-
      tent jurisdiction with the beneﬁt of stringent safeguards to protect him
      against any form of pressure or coercion when making such a confes-
      sion.” (CR 2019/2, pp. 10-11, para. 5 (Khan).)

   15. India claims that Mr. Jadhav is a retired naval oﬃcer who was
kidnapped from Iran where he was doing business. However, neither in
its Memorial nor in its Reply has India given his date of retirement from
the Indian Navy. It has not placed any document on record either to
indicate the kind of business he was carrying in Iran or when and how he
was kidnapped. If Mr. Jadhav was in fact kidnapped, as contended by
India, India could have lodged a complaint with the Government of Iran,
but it failed do so (Memorial of India (hereinafter “MI”), para. 41 ; Reply
of India (hereinafter “RI”), para. 31 (e) ; cf. CR 2019/2, para. 35
(Qureshi)). India also neither denied nor aﬃrmed that the passport recov-
ered from Mr. Jadhav was validly issued ; however, it aﬃrms in its plead-
ings that his name is “Kulbhushan Sudhir Jadhav” and not
“Hussein Mubarak Patel”. Facilitating or sanctioning a serving naval

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534                      jadhav (diss. op. jillani)

oﬃcer to penetrate into the social fabric of a sovereign State to undertake
terrorist activities and to conspire destabilization of an entire province in
Pakistan — actions that have led to numerous deaths and destruction of
property — should not have been lightly ignored by the Court.

   16. The issuance of a valid passport with a false Muslim identity and
Mr. Jadhav’s confession demonstrate India’s involvement, its abuse of
process and unlawful conduct. Robert Kolb has described the principle of
“abuse of process” in public international law as a principle that “consists
of the use of procedural instruments or rights by one or more parties for
purposes that are alien to those for which the procedural rights were
established” (R. Kolb, “General Principles of Procedural Law”, in
A. Zimmermann, K. Oellers-Frahm, C. Tomuschat and C. J. Tams (eds.),
The Statute of the International Court of Justice : A Commentary (2012),
Oxford University Press, p. 904). As Judge Anzilotti observed in his dis-
senting opinion to the Judgment of the Permanent Court of International
Justice in Legal Status of Eastern Greenland, “an unlawful act cannot
serve as the basis of an action at law” (Legal Status of Eastern Greenland,
Judgment, 1933, P.C.I.J. Series A/B, No. 53, p. 95). Likewise, to borrow
the words of Judge Schwebel in his dissenting opinion in Military and
Paramilitary Activities in and against Nicaragua, India’s conduct in the
present proceedings, as was that of Nicaragua in the above-mentioned
case,
      “should have been reason enough for the Court to hold that [the Appli-
      cant] had deprived itself of the necessary locus standi to complain of
      corresponding illegalities on the part of the [Respondent], especially
      because, if these were illegalities, they were consequential on or were
      embarked upon in order to counter the [Applicant’s] own illegality”
      (Military and Paramilitary Activities in and against Nicaragua
      (Nicaragua v. United States of America), Merits, Judgment, I.C.J.
      Reports 1986, dissenting opinion of Judge Schwebel, p. 394, para. 272).

 II. The 2008 Agreement Governs the Consular Relations between
   India and Pakistan and the Question of Arrest and Detention
                  on National Security Grounds

  17. In paragraphs 94-97 of the Judgment, the Court dismissed alto-
gether the relevance of the 2008 Agreement between India and Pakistan
to the present case on two grounds. First, the Court found that
“point (vi) of the Agreement cannot be read as denying consular access
in the case of an arrest, detention or sentence made on political or
security grounds” (Judgment, para. 94). Second, the Court held that
“point (vi) of [the] Agreement does not, as Pakistan contends, displace
the obligations under Article 36 of the Vienna Convention” (ibid.,
para. 97).

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535                      jadhav (diss. op. jillani)

   18. The Court’s interpretation of the 2008 Agreement is based on a
presumption and not on two States’ intent as reﬂected in the Agreement.
Moreover, it has misconstrued Article 73 of the Convention. In my view,
the Court has embraced an interpretation of Article 73, paragraph 2, of
the Vienna Convention which is incorrect from the perspective of the law
of treaties and has not paid due regard to the diﬃculties that this provi-
sion has posed at the time it was being negotiated. As I will show below,
the result of the Court’s interpretation would be tantamount to rendering
Article 73, paragraph 2, redundant and to depriving the States of their
inherent capacity to conclude bilateral treaties inter se in the same subject-
matter as that of a multilateral treaty to which they are both parties.
   19. It may be useful at the outset to recall the gist of the Parties’ plead-
ings on this point. Pakistan submitted that the provisions of the
2008 Agreement give eﬀect to, supplement and amplify the Vienna Con-
vention within the meaning of its Article 73 (CMP, paras. 369 and 385.1).
According to Pakistan, the confession made by Mr. Jadhav and the
nature of charges against him placed the case in the category of “national
security” ; Pakistan was thus entitled to consider consular access of
Mr. Jadhav “on its merits” as stipulated in point (vi) of the 2008 Agree-
ment (CMP, para. 385.3-385.4). India maintained, on the other hand,
that States parties to the Vienna Convention may conclude bilateral
agreements covering the same subject-matter only to the extent that these
conﬁrm, supplement, extend or amplify the provisions of the Vienna
Convention. It also argued that the 2008 Agreement, which was con-
cluded for “furthering the objective of humane treatment of nationals of
either country arrested, detained or imprisoned in the other country”, is
not relevant to the question of the right to consular assistance under the
Vienna Convention. Speciﬁcally, India contended that point (vi) must be
read in light of the surrounding provisions, namely points (v) and (vii) of
the 2008 Agreement, which deal with the question of early release or
repatriation, on compassionate or humanitarian considerations, which is
not what is in dispute in the present case (MI, paras. 90-92 ; RI, paras. 139,
143-146 ; CR 2019/1, para. 106 (Salve)). Counsel for India, Mr. Har-
ish Salve, in his oral submissions, contended that

      “[c]onsidering that India and Pakistan are neighbours both on land
      and sea, where people who live in the border areas frequently stray
      into the other country and end up in custody, it was found necessary
      to have a bilateral agreement that could supplement the Vienna Con-
      vention. Thus, the matters covered in (sub)paragraphs (i) (iii) (iv)
      and (v) were agreed to and these are not matters covered by the
      Vienna Convention; they supplement and extend the provisions of the
      Vienna Convention.” (CR 2019/1, pp. 31-32, para. 110 (Salve).)

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536                      jadhav (diss. op. jillani)

   20. Counsel for India thus admits that matters which fall within the
ambit of points (i), (iii), (iv) and (v) of the 2008 Agreement are not mat-
ters covered by the Vienna Convention ; they supplement and extend the
provisions thereof. He regrettably does not mention point (vi) (“In case of
arrest, detention or sentence made on political or security grounds, each
side may examine the case on its merits.”). The case of Mr. Jadhav, who
was accused of organizing and executing acts of terror, squarely fell
within the scope of point (vi) of the 2008 Agreement. With regard to the
intent of the parties to the Agreement, it is important to bear in mind two
things ; ﬁrstly, that both sides were party to the Vienna Convention on
Consular Relations and were very well aware of its Article 36, but despite
that they executed the said Agreement, and secondly, the very title of the
2008 Agreement is reﬂective of their intent, i.e. Agreement on Consular
Access.

   21. When considering the context of the 2008 Agreement, it is impor-
tant to recall the background that explains why these two States entered
into this arrangement notwithstanding the fact that they are both parties
to the Vienna Convention. There appear to be two reasons for that.
Firstly, since both countries share long borders (both land and sea), their
nationals accidentally cross the border and get arrested. It was for their
“humane treatment” and repatriation that the countries thought of enter-
ing into some kind of an accord. Secondly, and as pointed out by Paki-
stan, this Agreement (paragraph 11 above) replaced an earlier
1982 Agreement which operated until the execution of the 2008 Agree-
ment and contained a provision similar to point (vi) of the 2008 Agree-
ment. Both countries have had turbulent relations for the last several
decades and wanted to combat cross-border terrorism. One factor in this
context has been the festering Kashmir dispute between the two countries
on account of which they have had several armed conﬂicts, trading of
allegations and counter-allegations in the midst of a proxy war. India
itself in its Memorial has referred to a press brieﬁng by a spokesperson of
Pakistan dated 20 April 2017, which is reﬂective of how the Kashmir dis-
pute has partly deﬁned the diplomatic relations between India and Paki-
stan :

         “Will of Kashmiris in Indian-occupied Jammu and Kashmir was
      clearly visible in their outright rejection of sham elections there. Our
      Prime Minister, while calling upon Int[ernationa]l Community to stop
      Indian atrocities in IOK, rightly said that ‘use of brute force against
      innocent Kashmiris, who refused to participate in the sham elections,
      cannot suppress their human urge of freedom.’ Harrowing stories

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537                      jadhav (diss. op. jillani)

      from Indian occupied Kashmir continue to raise concerns in Paki-
      stan.” (MI, Ann. 9.)

Although Kashmir is not an issue in this case, India’s reference to the
above-quoted brieﬁng prompts a comment. The underlying issue which
regrettably has led to increasing public unrest in Kashmir and marred the
relations between the two neighbouring countries is the non-implementa-
tion of United Nations Security Council resolution 47 (adopted on
21 April 1948). Through the said resolution, the Security Council estab-
lished a commission to help the Government of India and the Govern-
ment of Pakistan to restore peace and order in the region and prepare for
a plebiscite to decide the fate of Kashmir.

   22. The grave situation in Kashmir has been graphically explained by
the latest report on Kashmir prepared by the United Nations High Com-
missioner for Human Rights (Oﬃce of the United Nations High Commis-
sioner for Human Rights, “Report on the Situation of Human Rights in
Kashmir”, dated 14 June 2018). On account of such fractious relations,
both countries have exchanged allegations of interference, as sometimes
nationals of either country and non-State actors are arrested and detained
on security grounds. Such incidents need to be investigated and each
country may be sensitive about providing either immediate consular
access or release. As the Vienna Convention on Consular Relations does
not speciﬁcally deal with arrest and detention on “political” and “secu-
rity” grounds (point (vi) of the 2008 Agreement), India and Pakistan
negotiated and entered into an agreement within the meaning of Arti-
cle 73, paragraph 2, of the Vienna Convention with a view to “supple-
ment” and “amplify” its provisions. The case in hand is a classic example
of the kind of situations/cases both countries had in mind when inserting
point (vi) in the 2008 Agreement. The Court, I may add with respect,
regrettably did not keep this aspect in mind while construing the said
Agreement.

   23. Such bilateral agreements are not unusual in the practice of States.
It appears that
      “[a]t least ﬁfty post-VCCR bilateral consular treaties contain explicit
      notiﬁcation or access timelines. The treaties were signed between 1964
      and 2008 and involve thirty-nine parties, representing nations on
      every continent and employing a wide range of political and judicial
      systems. No single formula for consular notiﬁcation and access pre-
      vails within this diverse body of bilateral instruments, even among

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538                       jadhav (diss. op. jillani)

      those that use the ‘without delay’ language of the VCCR. The short-
      est maximum time frame for consular notification is within forty-eight
      hours of the detention, while the longest is within ten days. The short-
      est maximum time frame for consular access is within three days of a
      detention and the longest is within ﬁfteen days. A clear majority of
      the ﬁfty treaties require notiﬁcation of the consulate within three days
      of a detention and nearly 90 per cent of the reviewed agreements
      require notiﬁcation within no more than ﬁve days. Similarly, a major-
      ity of the treaties require consular access within ﬁve days or less, while
      82 per cent of the treaties stipulate access within no more than
      one week of the detention.” (M. Warren, “Rendered Meaningless?
      Security Detentions and the Erosion of Consular Access”, Southern
      Illinois University Law Journal, Vol. 38 (1) (Fall 2013), pp. 37-38.)

   24. In my view, the 2008 Agreement is fully in line with the require-
ments of Article 73, paragraph 2, of the Vienna Convention on Consular
Relations, which provides that “[n]othing in the present Convention shall
preclude States from concluding international agreements conﬁrming or
supplementing or extending or amplifying the provisions thereof”. The
expressions “conﬁrming or supplementing or extending or amplifying”
are disjunctive. The Chambers Dictionary deﬁnes “supplement” as “[t]hat
which supplies a deﬁciency or ﬁlls a need ; that which completes or brings
closer to completion ; an extra part added to a publication”. Similarly, it
deﬁnes “amplify” as “to make more copious ; to add, to enlarge, etc.”.
Black Law’s Dictionary deﬁnes “supplement” as “supplying something
additional, adding what is lacking”. India itself has asserted that “bilat-
eral treaties covering the same subject-matter can be accommodated as
long as they are [t]reaties ‘conﬁrming, or supplementing or extending or
amplifying the provisions . . .’ of the Vienna Convention” (MI, para. 91).
In any event, Article 73, paragraph 2, is substantially a without prejudice
clause. Nothing under the general law of treaties precludes two States,
which are parties to a multilateral instrument, from concluding a subse-
quent agreement that could govern diﬀerently their relations inter se. This
is also what directly transpires from the travaux préparatoires of Arti-
cle 73, paragraph 2, the text of which was proposed at the time by India.
The statements made immediately preceding the adoption of this provi-
sion are revealing :

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539                       jadhav (diss. op. jillani)

         “Mr. EVANS (United Kingdom) asked whether the delegate of
      India could say whether his text left undisturbed the rule of interna-
      tional law which permitted any two or more parties to a multilateral
      convention to agree to a departure from the terms of such a conven-
      tion as between themselves, provided that the departure did not
      infringe the rights of the other parties to the convention. If that could
      be conﬁrmed, he would vote for the text submitted by India.

         Mr. KRISHNA RAO (India) said it was hard to answer that ques-
      tion, for the answer would have a bearing on the convention being
      prepared and also on conventions or agreements which might be con-
      cluded in the future.” (Official Records of the United Nations Confer-
      ence on Consular Relations, Vienna, 4 March-22 April 1963, Summary
      Records of Plenary Meetings and of the Meetings of the First and Sec-
      ond Committees, doc. A/CONF.25/16, Vol. I, Twenty-eighth meeting
      of the First Committee, 25 March 1963, p. 240, paras. 9-10.)

   25. During the negotiations of this provision in Vienna, several States
expressed strong reservations about its legal eﬀect, suggesting for example
that “States should be free to decide whether or not they wished to enter
into agreements of their own choice on consular relations” but eventually
there was a broad consensus to insert Article 73, paragraph 2, in the Con-
vention (ibid., p. 235 : Twenty-seventh meeting of the First Committee,
25 March 1963, para. 28).

   26. Various provisions of the 2008 Agreement have ﬁlled in some of
the gaps in the Vienna Convention and have clariﬁed the application of
that instrument in the bilateral relations between India and Pakistan. The
Parties agreed that they could examine any request of consular access and
assistance in respect of persons detained or sentenced on political or secu-
rity grounds “on its merits”. As rightly observed by Mark Warren, “the
provisions of bilateral consular treaties oﬀer an important but often over-
looked source of authority on the contemporary understanding of con-
sular notiﬁcation and access obligations” (M. Warren, “Rendered
Meaningless ? Security Detentions and the Erosion of Consular Access”,
Southern Illinois University Law Journal, Vol. 38 (1) (Fall 2013), p. 28).
Regrettably, the Court has ignored this key provision, by holding that
“[it] cannot be read as denying consular access in the case of an arrest,
detention or sentence made on political or security grounds” (Judgment,
para. 94).

  27. As already pointed out above, the Parties negotiated the terms of
the 2008 Agreement over a period of almost three years and India failed

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540                       jadhav (diss. op. jillani)

to explain in its pleadings how any aspect of that Agreement is inconsis-
tent with Article 73 of the Vienna Convention and why should it not be
looked at to inform the application and interpretation of Article 36
thereof. While reiterating their resolve to provide “consular access”
and to ensure the release and repatriation of nationals of the other con-
tracting party within one month “of conﬁrmation of their national status
and completion of sentences”, the Parties agreed to an exception in
point (vi) in providing “[i]n case of arrest, detention or sentence made on
political or security grounds, each side may examine the case on its mer-
its”. This exception applies exclusively in the relations between the two
countries.

   28. The 2008 Agreement does not aﬀect the enjoyment by the other
parties to the Vienna Convention of their rights or performance of their
obligations, nor does it aﬀect the eﬀective execution of the object and
purpose of the Vienna Convention as a whole (see Art. 41 (1) (b) of the
Vienna Convention on the Law of Treaties). The 2008 Agreement simply
qualiﬁes the performance by India and Pakistan of their rights and obli-
gations under Article 36 of the Vienna Convention in the relations inter se
and in the speciﬁc cases of arrest and detention on political or security
grounds. It does not aﬀect the continuing enjoyment of those rights and
obligations by other parties to the Vienna Convention. In this context, a
distinction may be drawn between “reciprocal” and “absolute” treaties,
as far as the conditions for modiﬁcation of a treaty are concerned, as
these are set out in Article 41 (1) (b) of the Vienna Convention on the
Law of Treaties. According to the authoritative commentary of that pro-
vision :

         “Reciprocal treaties are those in which States parties engage in a
      reciprocal way, where they grant each other advantages and subscribe
      to obligations between one another, in a quasi-bilateral fashion. This
      is typically the case for conventions on consular relations, diplomatic
      relations, or even on the law of treaties. In this type of treaty, States
      engage vis-à-vis others, but a derogation between two or several of
      them will not necessarily entail a restriction of rights granted to other
      States and will not aﬀect the realization of the object and purpose of
      the treaty. Compatibility with the object and purpose of the treaty or
      conformity with the rights and obligations of other States parties will
      thus, in this scenario, only rarely be an obstacle to the conclusion of
      inter se agreements.” (A. Rigaux et al., “Art. 41 of the 1969 Vienna
      Convention”, in O. Corten and P. Klein (eds.), The Vienna Conven-
      tions on the Law of Treaties (2011), pp. 1003-1004, para. 36.)

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541                       jadhav (diss. op. jillani)

  29. Finally, as I have already mentioned before, the interpretation of
the relationship between the 2008 Agreement and the Vienna Convention
on Consular Relations should not lose sight of the object and purpose of
the latter instrument. Although the Convention stipulates no express
exception for spies or persons involved in cases which have a political or
national security dimension, its very preamble aﬃrmed that “the rules of
customary international law continue to govern matters not expressly
regulated by the provisions of the present Convention”. Reaﬃrmation of
the rules of customary international law is signiﬁcant because certain
matters were deliberately left out of the scope of application of the Con-
vention. In his oral submissions, counsel for Pakistan dilated upon this
aspect and submitted that

      “State practice did not provide for consular access prior to the VCCR
      and the Vienna Convention expressly preserved the position of cus-
      tomary international law in 1963. [. . .] [E]ven if the Vienna Convention
      was engaged, consular access to a prima facie case of espionage sus-
      pect would violate Articles 5 (a) and 55, the principle of upholding
      international law, not violating it and not interfering in the internal
      aﬀairs of the State” (CR 2019/2, p. 18, para. 21 (Qureshi)).

   30. This dimension of the Vienna Convention is important because
Mr. Jadhav was arrested on charges of espionage and terrorism, a class of
cases treated diﬀerently under customary international law so far as the
question of consular access and assistance is concerned. In its submis-
sions, Pakistan has rightly referred to various examples from State prac-
tice and travaux préparatoires, showing that consular access and assistance
were either withheld or restricted in cases of espionage agents, dual
nationals or asylum seekers (see CMP, paras. 291-315.5). The States
negotiating the Vienna Convention did not intend for the Convention to
apply to these select categories of persons. These matters were to be gov-
erned by customary international law and any existing or future bilateral
treaties. Doctrine contemporaneous with the adoption of the Vienna
Convention also shows that the practice of States conﬁrmed “a frequent
exception to the consular right to protect nationals and visit them in
prison is the case of spies” (L. T. Lee, Consular Law and Practice (1961),
reproduced in RP, para. 116 and CMP, Vol. 5, Ann 112.1, p. 125). Simi-
larly, Biswanath Sen, who was the Honorary Legal Adviser to India’s
Ministry of External Aﬀairs, noted that “[a] frequent exception to the
consular rights to protect nationals and visit them in prison is the case of
persons who are held on charge of espionage as evidenced by the practice
of states” (B. Sen, A Diplomat’s Handbook to International Law and Prac-

127

542                      jadhav (diss. op. jillani)

tice (1965), reproduced in RP, para. 117 and CMP, Vol. 5, Ann. 117).
Pakistan’s argument that neither the text of Article 36 nor the Interna-
tional Law Commission’s (hereinafter “ILC”) Commentary on the draft
of Article 36 demonstrates that it was intended to embrace individuals
arrested for purported espionage, is well-founded. In fact, through the
ILC’s Commentary on the draft Articles, it has managed to demonstrate
to the Court that at the time of drafting of the Convention, the applica-
tion of the Vienna Convention to espionage cases was brought up in dis-
cussion but was not deﬁnitively decided upon due to its sensitive nature.
On the contrary, the Commentary recognized that there would be circum-
stances where States would be entitled to hold persons incommunicado
for a certain time period for the purposes of criminal investigations. As
noted in the Commentary, “[t]he expression ‘without undue delay’ used in
paragraph (1) (b) allows for cases where it is necessary to hold a person
incommunicado for a certain period for the purposes of the criminal
investigation”. (A. Watts (ed.), The International Law Commission
1949-1998, Volume One : The Treaties, Part 1 (OUP, 2000), p. 274,
para. 6 ; reproduced in CMP, Vol. 5, Ann. 92.) There has been no evi-
dence presented by India to the Court which suﬃciently demonstrates
that customary international law and State practice provide for obliga-
tory granting of consular access to individuals accused of espionage.
However, as argued by Pakistan, State practice from the Cold War dem-
onstrates that requests for consular access between the United States of
America and the Union of Soviet Socialist Republics for individuals
accused of espionage activities were either denied or were granted on
severely restricted terms. In light of the text of Article 36, its drafting his-
tory, and customary international law, it is tenable to conclude that there
is no absolute right of consular access under Article 36.

   31. Espionage and terrorism are illegal acts in international law and
the Vienna Convention cannot be used to protect a State indulging in
espionage and terrorist missions. The Court’s disregard of the legal eﬀect
and content of the 2008 Agreement is highly damaging not only to the
integrity and sacredness of that Agreement, but also raises a ques-
tion mark as to the legal eﬀect of other bilateral agreements concluded
after the entry into force of the Vienna Convention on Consular Rela-
tions. In fact, it would put in doubt every bilateral agreement signed

128

543                     jadhav (diss. op. jillani)

between India and Pakistan, or between any two countries, which have
faced hostilities and threats of terrorism. It was thus imperative, in my
humble view, for the Court to carefully consider the object and purpose
of the 2008 Agreement, which in my opinion was meant to qualify within
the meaning of Article 73, paragraph 2, certain provisions of the Vienna
Convention on Consular Relations in the context of special circumstances
faced by the two countries.

   32. Notwithstanding the serious charges levelled against Mr. Jadhav
and the exception of not providing consular access in cases of espionage,
as reﬂected in customary international law, Pakistan was still prepared to
grant consular access subject to India co-operating in the investigation
into the crimes committed by Mr. Jadhav.

   33. There is no denial by India that the allegations levelled against
Mr. Jadhav and the confession made by him, if found to be credible, con-
stitute serious criminal oﬀences under the Anti-Terrorism Act 1997 and
Pakistan Army Act 1952. Similarly, India has not denied that if the alle-
gations are found to be true, the acts also constitute oﬀences under the
Indian Passport Act 1967 and/or Passport Rules 1980. It was on account
of such laws in the Indian legal system that Pakistan had oﬀered to extra-
dite Jadhav if India was prepared to prosecute him under its law. How-
ever, there was no positive response. There is nothing on record to suggest
that there was a plain refusal by Pakistan to provide consular access.
Rather, Pakistan conveyed to India that its request for consular access
would be considered in the light of India’s assistance in the pending inves-
tigation against Mr. Jadhav. India in fact acknowledged “the willingness
of Pakistan side to provide consular access” (CMP, Vol. 2, Ann. 13.12).
It appears from Pakistan’s conduct that it was of the view that — on
account of Mr. Jadhav’s confession and the fact that potential evidence
regarding which it had requested India for assistance had yet to be col-
lected — the investigation was at a sensitive stage. If Mr. Jadhav had
been provided immediate consular access, he could have resiled from his
confession and any potential evidence sought to be collected from India
could have been compromised (see CMP, paras. 60-61). Article 36 of the
Vienna Convention itself does not evince immediate consular access prior
to investigation. As the Court observed in the Avena case :

        “As for the object and purpose of the Convention, the Court
      observes that Article 36 provides for consular oﬃcers to be free to

129

544                       jadhav (diss. op. jillani)

      communicate with nationals of the sending State, to have access to
      them, to visit and speak with them and to arrange for their legal
      representation. It is not envisaged, either in Article 36, paragraph 1,
      or elsewhere in the Convention, that consular functions entail a con-
      sular oﬃcer himself or herself acting as the legal representative or
      more directly engaging in the criminal justice process. Indeed, this is
      conﬁrmed by the wording of Article 36, paragraph 2, of the Conven-
      tion. Thus, neither the terms of the Convention as normally under-
      stood, nor its object and purpose, suggest that ‘without delay’ is to
      be understood as ‘immediately upon arrest and before interrogation’.”
      (Avena and Other Mexican Nationals (Mexico v. United States of
      America), Judgment, I.C.J. Reports 2004 (I), p. 48, para. 85.)

       III. Pakistan Has not Breached Article 36 of the Vienna
                             Convention

   34. I disagree with the Court’s ﬁnding that Pakistan has breached the
rights set out in paragraph 1 of Article 36 of the Vienna Convention on
Consular Relations. The rights set out in that provision must be exercised
in accordance with the domestic law of the receiving State (CMP,
para. 340). In this respect, paragraph 2 of Article 36 of the Vienna Con-
vention provides that
      “[t]he rights referred to in paragraph 1 of this article [Article 36 of the
      Vienna Convention] shall be exercised in conformity with the laws and
      regulations of the receiving State, subject to the proviso, however, that
      the said laws and regulations must enable full eﬀect to be given to
      the purposes for which the rights accorded under this article are
      intended.”
   35. As the Court noted in both LaGrand and Avena cases, Article 36 (1)
is “an interrelated régime designed to facilitate the implementation of the
system of consular protection” (LaGrand (Germany v. United States of
America), Judgment, I.C.J. Reports 2001, p. 492, para. 74 ; Avena and
Other Mexican Nationals (Mexico v. United States of America), Judg-
ment, I.C.J. Reports 2004 (I), p. 39, para. 50). Further, as the Court
stressed in the Avena Judgment :

      “Article 36, paragraph 1 (b), contains three separate but interrelated
      elements: the right of the individual concerned to be informed without
      delay of his rights under Article 36, paragraph 1 (b); the right of the
      consular post to be notiﬁed without delay of the individual’s deten-
      tion, if he so requests; and the obligation of the receiving State to
      forward without delay any communication addressed to the consular

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545                      jadhav (diss. op. jillani)

      post by the detained person.” (Avena and Other Mexican Nationals
      (Mexico v. United States of America), Judgment, I.C.J. Reports
      2004 (I), p. 43, para. 61.)
   36. There was a delay of three weeks in notifying the Indian consular
authorities about the arrest of Mr. Jadhav. Such a delay is understand-
able in a sensitive case where Mr. Jadhav made disclosure of his involve-
ment in espionage and of organizing and executing terrorist acts in two
cities of Pakistan. He named several accomplices. The investigation of a
sensitive case like that must have spread over a few days, besides requir-
ing conﬁdentiality. This Court has already had the occasion to clarify the
meaning of “without delay” in Article 36 (1) (b), of the Vienna Conven-
tion :
      “The Court thus ﬁnds that ‘without delay’ is not necessarily to be
      interpreted as ‘immediately’ upon arrest. It further observes that dur-
      ing the Conference debates on this term, no delegate made any con-
      nection with the issue of interrogation. The Court considers that the
      provision in Article 36, paragraph 1 (b), that the receiving State
      authorities ‘shall inform the person concerned without delay of his
      rights’ cannot be interpreted to signify that the provision of such
      information must necessarily precede any interrogation, so that the
      commencement of interrogation before the information is given
      would be a breach of Article 36.

         Although, by application of the usual rules of interpretation, ‘with-
      out delay’ as regards the duty to inform an individual under Arti-
      cle 36, paragraph 1 (b), is not to be understood as necessarily
      meaning ‘immediately upon arrest’, there is nonetheless a duty upon
      the arresting authorities to give that information to an arrested person
      as soon as it is realized that the person is a foreign national, or once
      there are grounds to think that the person is probably a foreign
      national.” (Ibid., p. 49, paras. 87-88.)

   37. In the peculiar circumstances of this case and having regard to the
seriousness of oﬀences committed by Mr. Jadhav, the threat these have
posed to the national security of Pakistan and the fact that several of his
named accomplices were still to be investigated, I consider that a period
of three weeks between the arrest and notiﬁcation is reasonable and thus
does not amount to a breach of Article 36 (1) (b) of the Vienna Conven-
tion.
   38. As for paragraph 1 (a) and (c) of Article 36 of the Vienna Con-
vention, and the lack of consular access and assistance to Mr. Jadhav, the
present case is further distinguishable from Avena and LaGrand for the
following reasons.

  39. Firstly, in both Avena and LaGrand, the nationals of the sending
States and the sending States were not accused of espionage or of orga-

131

546                      jadhav (diss. op. jillani)

nizing and perpetuating terrorist acts, whereas in the case of Mr. Jadhav,
a serving oﬃcer of the Indian Navy, he was apprehended from within
Pakistan. He confessed to having been dispatched by RAW and Indian
intelligence agencies and to have engaged in espionage and of organizing
and executing terrorist acts with a view to destabilize Pakistan. India,
unlike Mexico and Germany (sending States in Avena and LaGrand,
respectively) in dispatching its national, for a mission of the kind he was
involved in, betrays a blatant disregard of international law and its obli-
gations as Member of the United Nations.

   40. Secondly, unlike the United States in Avena and LaGrand, Paki-
stan did not withhold information regarding the arrest of Mr. Jadhav.
Pakistan informed India of the circumstances in which Mr. Jadhav was
apprehended, how he confessed and his confession led to the conviction
and a criminal case under the laws of Pakistan. Pakistan requested India
for co-operation in the investigation in the case registered against Mr. Jad-
hav. There was no request from the United States to Mexico and Ger-
many (sending States in Avena and LaGrand respectively) for co-operation
in investigation.

   41. Thirdly, in Avena and LaGrand, there was no bilateral agreement
between the sending States (Mexico and Germany) and the receiving
State (United States) governing the issue of consular access to individuals
apprehended in the receiving State. In the case in hand, India (sending
State) and Pakistan (receiving State) have a bilateral agreement in force
which governs consular access in the event a national of either contract-
ing State is arrested in the territory of the other contracting State. In fact,
it governs speciﬁcally the cases of consular access and assistance to a
national arrested or detained on political or security-related grounds and
thus aims to clarify and inform the general régime as set out in Article 36
of the Vienna Convention.

   42. Finally, contrary to the Avena and LaGrand cases, where both the
sending States were not accused of any wrongdoing or illegal conduct, the
conduct of the sending State (India) in the present case has a direct bear-
ing on the Court’s analysis of Article 36 rights and obligations. The illegal
conduct of India, according to Pakistan, is “the provision to [Mr.] Jadhav
of an authentic Indian passport clothing him with a false Muslim identity
in the name of ‘Hussein Mubarak Patel’” (CMP, paras. 188, 210-216). In
my view, there are several instances that taint India’s hands when
bringing this case before the Court and show that India has abused its
right to beneﬁt from consular access to its national under the Vienna
Convention :
— India has failed to co-operate with Pakistan, in relation to the latter’s
  request for assistance in respect of the investigation into the crimes

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547                       jadhav (diss. op. jillani)

  allegedly committed by Mr. Jadhav, including espionage and terror-
  ism (CMP, para. 206 and Vol. 2, Ann. 33);
— India has failed to provide assistance pursuant to Pakistan’s MLA
  Request in obtaining statements of 13 identiﬁed individuals and access
  to records and materials (CMP, para. 206); and

— India has failed to register an oﬀence, under the laws of India, against
  Mr. Jadhav for possession of a false passport and identity, contrary to
  its domestic law (CMP, para. 122).
  43. Moreover, the Court in its observations and ﬁndings has totally
ignored the fact that, even if the Vienna Convention was applicable, the
conduct of India in sending Commander Jadhav on a mission to engage
in acts of espionage constituted a blatant violation of Article 5 (a) and
Article 55, paragraph 1, of the Vienna Convention which provide as fol-
lows :

                                       “Article 5
      (a) protecting in the receiving State the interests of the sending State
           and of its nationals, both individuals and bodies corporate, within
           the limits permitted by international law;
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
                                        Article 55
      (1) Without prejudice to their privileges and immunities, it is the duty
          of all persons enjoying such privileges and immunities to respect
          the laws and regulations of the receiving State. They also have a
          duty not to interfere in the internal aﬀairs of that State.”

   44. In light of the foregoing, I strongly disagree with the Court’s con-
clusion that “Pakistan has breached the obligations incumbent on it
under Article 36, paragraph 1 (a) and (c), of the Vienna Convention”
(Judgment, para. 119).

      IV. The Relief Ordered by the Court Ignores the Existing
                    Legal Framework in Pakistan

   45. In paragraph 147 of the Judgment, the Court concluded that “Pak-
istan is under an obligation to provide, by means of its own choosing,
eﬀective review and reconsideration of the conviction and sentence of
Mr. Jadhav”. However, the reasoning employed by the Court is rather
inconsistent with this conclusion. The Court reached this conclusion on
the basis of two manifestly erroneous assumptions. First, in paragraph 141
of the Judgment, the Court found that “it is not clear whether judicial
review of a decision of a military court is available on the ground that

133

548                     jadhav (diss. op. jillani)

there has been a violation of the rights set forth in Article 36, paragraph 1,
of the Vienna Convention”. Second, in paragraph 146 of the Judgment,
the Court held that “Pakistan shall take all measures to provide for eﬀec-
tive review and reconsideration, including, if necessary, by enacting
appropriate legislation”.

   46. In my view, these assumptions are highly problematic for at least
three reasons. First, if the Court was unclear about the existing legal
framework of judicial review in Pakistan, it could have requested the Par-
ties, pursuant to Article 62 of its Rules, “to produce such evidence or to
give such explanations as the Court may consider to be necessary for the
elucidation of any aspect of the matters in issue”.

   47. Second, and more fundamentally, as provided in Article 199, para-
graph 3, of the Constitution of Pakistan, the High Courts and the
Supreme Court (Article 184 (3) of the Constitution) have the power of
judicial review. There are several domestic judgments in which this provi-
sion has been invoked and commented upon. The High Courts and the
Supreme Court have exercised 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”
(see, for example, Said Zaman Khan et al. v. Federation of Pakistan,
Supreme Court of Pakistan, Civil Petition No. 842 of 2016, 29 August
2016, para. 73, CMP, Vol. 4, Ann. 81). For example, in a 2018 judgment,
the Peshawar High Court acquitted 72 convicts of military courts,
inter alia on grounds of malice in law, cases of no evidence. The Peshawar
High Court held that it had the power to review the 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 mal-
ice of facts and 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, PLD 2019 Peshawar 17). There is no evidence of any mis-
conduct or abuse of the military courts of Pakistan in exercising their
jurisdiction over the crimes of terrorism and oﬀences aﬀecting national
security. Pakistan has an eﬀective system in place providing for review
jurisdiction, and Mr. Jadhav has not yet exhausted the local remedies
available to him to challenge his conviction and sentence. Pakistan has
referred the Court to ample evidence of the civil courts of Pakistan exer-
cising their review jurisdiction in respect of death sentences issued by its
military courts (RP, paras. 40-44 ; CMP, Vol. 1, Anns. 33-37), evidence
that the Court has regrettably discarded.

134

549                     jadhav (diss. op. jillani)

   48. Third and ﬁnally, the Court’s conclusion in paragraph 146 of its
Judgment to the eﬀect that Pakistan should, if necessary, adopt appropri-
ate legislation for eﬀective review and reconsideration, is ill-founded. Not
only is such legislation already in place in Pakistan, but it is also not the
Court’s role to dictate to the State the means by which it has to comply
with its obligation to ensure eﬀective review and reconsideration. The
only precedent relied upon by the Court is that from its 2009 Judgment in
the Avena (Request for Interpretation) case (Request for Interpretation of
the Judgment of 31 March 2004 in the Case concerning Avena and Other
Mexican Nationals (Mexico v. United States of America) (Mexico v.
United States of America), Judgment, I.C.J. Reports 2009, p. 17, para. 44).
That precedent however is distinguishable. First, in that case, Mexico
seised the Court after the United States had not complied with the Court’s
ruling requesting the United States to provide for review and reconsidera-
tion. Second, while the issue before the Court in the present case relates
to the existence of a judicial procedure for the review and reconsideration
of a judgment of a military court in Pakistan, in Avena the question was
one relating to a speciﬁc domestic law, namely the procedural default rule
in the United States (a rule of the United States federal law that forbids
federal courts to review State judgments if the State court rejected the
proposed claim on procedural grounds). Third, the 2009 Avena (Request
for Interpretation) Judgment followed the United States Presidential
Memorandum of 28 February 2005 determining that the State courts
were to give eﬀect to the 2004 Avena Judgment, as well as the proceedings
before the United States Supreme Court in Medellin v. Texas (Supreme
Court Reporter, Vol. 128, 2008, p. 1346). In its judgment, the United States
Supreme Court found that the ICJ’s 2004 Avena Judgment was not
enforceable by federal courts against Texas, and did not pre-empt the
State procedural bar to Medellin’s habeas claim. It also found that the
United States Presidential Memorandum did not create binding law that
could be enforced against Texas. By contrast, in the present case,
the High Courts and the Supreme Court of Pakistan already exercise the
review over the judgments passed by the military courts. Fourth
and ﬁnally, the Agent for Pakistan in the present proceedings has repeat-
edly given assurances as to the right of Mr. Jadhav to seek judicial
review: “the systems of judicial review in Pakistan are potent and very
eﬀective” and “[s]hould [Mr. Jadhav] choose to enter into the domain
of judicial review, he will have the right to choose his lawyer to repre-
sent him” (CR 2019/4, p. 31, paras. 13-14 (Khan)). The Agent for Paki-
stan further stressed that “fair trial is an absolute right and cannot be
taken away. All trials are conducted in that manner, and if not, the
process of judicial review is always available” (ibid., p. 28, para. 4
(Khan)). In its jurisprudence, this Court has consistently refrained
from mandating the speciﬁc means by which any given State
should comply with its obligation to provide for an eﬀective review
and reconsideration. It is thus regrettable that the Court now appears
to be restricting the liberty of States to choose amongst the most appro-

135

550                     jadhav (diss. op. jillani)

priate means available to them to comply with their international
obligations.

                        V. General Conclusion

   49. In light of the foregoing, I disagree with the Judgment of the Court.
First, India’s Application should have been declared to be inadmissible.
India’s conduct of sending an espionage agent to destabilize the sover-
eignty and security of Pakistan and its subsequent reliance on the Vienna
Convention before this Court amount to an abuse of rights. Second, the
2008 Agreement governs the cases of arrest and detention on political and
security grounds and provides for the right of Pakistan to examine the
case of Mr. Jadhav on the merits, including any question of consular
access or assistance to him. Third, the Vienna Convention does not apply
to Mr. Jadhav, as the scope of application of Article 36 of the Vienna
Convention does not extend to espionage agents. Fourth, even if Arti-
cle 36 of the Vienna Convention were to apply to Mr. Jadhav, Pakistan
has not breached the said provision. Fifth and ﬁnally, the relief ordered
by the Court is inappropriate, as Pakistan already allows for an eﬀective
review and reconsideration of convictions and sentences passed by mili-
tary courts.

                                   (Signed) Tassaduq Hussain Jillani.

136


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING MARITIME DELIMITATION
AND TERRITORIAL QUESTIONS
BETWEEN QATAR AND BAHRAIN

(QATAR v. BAHRAIN)

ORDER OF 28 APRIL 1995

1995

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA DELIMITATION MARITIME
ET DES QUESTIONS TERRITORIALES
ENTRE QATAR ET BAHREIN

(QATAR c. BAHREIN)

ORDONNANCE DU 28 AVRIL 1995
Official citation:

Maritime Delimitation and Territorial Questions
between Qatar and Bahrain, Order of 28 April 1995,
I C.J. Reports 1995, p. 83

Mode officiel de citation:

Délimitation maritime et questions territoriales
entre Qatar et Bahreïn, ordonnance du 28 avril 1995,
C.I.J. Recueil 1995, p. 83

Sales number
ISSN 0074-4441 N° de vente: 659
ISBN 92-1-070722-2

83

COUR INTERNATIONALE DE JUSTICE

ANNEE 1995 1995
: 28 avril
Rôle général
28 avril 1995 n° 87

AFFAIRE DE LA DÉLIMITATION MARITIME
ET DES QUESTIONS TERRITORIALES
ENTRE QATAR ET BAHREIN

(QATAR c. BAHREIN)

ORDONNANCE

Présents: M. Bepsaoul, Président; M. SCHWEBEL, Vice-Président;
M. Oba, sir Robert JENNINGS, MM. GUILLAUME, SHAHABUD-
DEEN, AGUILAR-MAWDSLEY, WEERAMANTRY, RANJEVA, HERCZEGH,
SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN, juges; M. TORRES
BERNARDEZ, juge ad hoc; M. VALENCIA-OSPINA, Greffier.

La Cour internationale de Justice,

Ainsi composée,
Après délibéré en chambre du conseil,
Vu l’article 48 du Statut de la Cour et l’article 44 de son Règlement,

Vu l’ordonnance en date du 11 octobre 1991, par laquelle le Président
de la Cour, après avoir consulté les Parties en vertu de Particle 31 du
Règlement, a décidé que les pièces de la procédure écrite porteraient
d’abord sur la question de la compétence de la Cour pour connaître du
différend et sur celle de la recevabilité de la requête, et a fixé la date
d'expiration pour le dépôt d’un mémoire de Qatar et d’un contre-
mémoire de Bahreïn sur ces questions;

Vu l'ordonnance en date du 26 juin 1992, par laquelle la Cour, consi-

4
DELIMITATION MARITIME ET QUESTIONS TERRITORIALES (ORD. 28 IV 95) 84

dérant que la présentation d’autres pièces de procédure par les Parties
était nécessaire, a prescrit la présentation d’une réplique de Qatar et
d’une duplique de Bahreïn sur les mêmes questions;

Vu l'arrêt en date du 1° juillet 1994, par lequel Ja Cour a dit que les
échanges de lettres de décembre 1987 entre le roi d’Arabie saoudite et les
émirs de Qatar et de Bahreïn, ainsi que le procès-verbal signé à Doha le
25 décembre 1990, constituaient des accords internationaux créant des
droits et des obligations pour les Parties, et qu'aux termes de ces accords
les Parties avaient pris l’engagement de lui soumettre l’ensemble du dif-
férend qui les oppose, tel que circonscrit par la «formule bahreïnite»; a
décidé de donner aux Parties l’occasion de lui soumettre l’ensemble du
différend; a fixé au 30 novembre 1994 la date d’expiration du délai dans
lequel les Parties devaient agir conjointement ou individuellement à cette
fin; et a réservé toute autre question pour décision ultérieure;

Vu l'arrêt en date du 15 février 1995, par lequel la Cour a dit qu’elle a
compétence pour statuer sur le différend entre Qatar et Bahreïn, qui lui
est soumis; qu’elle est maintenant saisie de l’ensemble du différend: et
que la requête de Qatar telle que formulée le 30 novembre 1994 est rece-
vable ;

Considérant qu’au paragraphe 39 de l’arrêt qu’elle a rendu le 1° juillet
1994 la Cour s’est exprimée dans les termes suivants:

«Une fois l’ensemble du différend soumis à la Cour, celle-ci fixera
les délais dans lesquels il sera procédé au dépôt simultané des pièces
de la procédure écrite, chaque Partie déposant dans les mêmes délais
un mémoire, puis un contre-mémoire »;

et considérant qu’au paragraphe 49 de l’arrêt qu’elle a rendu le 15 février
1995 la Cour a précisé ce qui suit:

«Dans le cadre ainsi défini, il appartient à Qatar de présenter à la
Cour ses propres conclusions comme il appartient 4 Bahrein de pré-
senter les siennes. A cet effet, la Cour fixera par voie d’ordonnance,
après s’étre renseignée auprès des Parties, les délais dans lesquels il
sera procédé au dépôt simultané des pièces de la procédure écrite,
conformément au paragraphe 39 de l’arrêt du 1% juillet 1994»;

Considérant qu’il convient donc à présent de fixer des délais pour la
procédure écrite sur le fond;

Considérant qu’aux fins de se renseigner auprès des Parties sur ces
délais le Président a invité leurs agents à prendre part à une réunion dont
la date a été fixée au 27 avril 1995;

Considérant que, dans une lettre datée du 24 avril 1995 et reçue au
Greffe le même jour par télécopie, l’agent de Bahreïn, se référant à un
document intitulé «Déclaration officielle du Gouvernement de l'Etat de
Bahreïn concernant sa position à l’égard du nouvel arrêt de la Cour
rendu le 15 février 1995», dont il avait fait tenir le texte à la Cour sous le
couvert d’une lettre du 7 mars 1995, a notamment indiqué que, pour les

5
DELIMITATION MARITIME ET QUESTIONS TERRITORIALES (ORD. 28 IV 95) 85

raisons exposées dans ladite déclaration, 1l ne pouvait «répondre positi-
vement à l'invitation du Président à assister à la réunion du 27 avril
1995»;

Après avoir recueilli les vues de Qatar et avoir donné à Bahreïn la pos-
sibilité de faire connaître les siennes,

Fixe au 29 février 1996 la date d’expiration du délai pour le dépôt par
chacune des Parties d’un mémoire sur le fond;

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
Paix, à La Haye, le vingt-huit avril mil neuf cent quatre-vingt-quinze, en
trois exemplaires, dont l’un restera déposé aux archives de la Cour et les
autres seront transmis respectivement au Gouvernement de l'Etat de
Qatar et au Gouvernement de l'Etat de Bahreïn.

Le Président,
(Signé) Mohammed BEDJAOUI.

Le Greffier,
(Signé) Eduardo VALENCIA-OSPINA.


340

                DECLARATION OF JUDGE IWASAWA

   Right of peoples to self-determination — Free and genuine expression of the will
of the people concerned — Principle of territorial integrity — Discretion to give an
advisory opinion — Principle of consent in judicial settlement.

  1. I agree with the conclusions drawn by the Court in the operative
part of the present Advisory Opinion. As certain aspects of the Court’s
reasoning in reaching those conclusions may not be suﬃciently clear, I
oﬀer my understanding of the reasoning. At the same time, I wish to elab-
orate upon my reasons for supporting the conclusions.

   2. The Court is the principal judicial organ of the United Nations.
According to its consistent jurisprudence, “[t]he Court’s Opinion is given
not to the States, but to the organ which is entitled to request it; the reply
of the Court . . . represents its participation in the activities of the Orga-
nization, and, in principle, [a request] should not be refused” (Interpreta-
tion of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950, p. 71), and “only ‘compelling rea-
sons’ could lead it to such a refusal . . . There has been no refusal, based
on the discretionary power of the Court, to act upon a request for advi-
sory opinion in the history of the present Court.” (Legality of the Threat
or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I),
p. 235, para. 14.)
   3. In the present proceedings, the Court observes that
      “the opinion has been requested on the matter of decolonization
      which is of particular concern to the United Nations. The issues raised
      by the request are located in the broader frame of reference of decol-
      onization, including the General Assembly’s role therein, from which
      those issues are inseparable.” (Advisory Opinion, para. 88.)

The Court thus concludes that to give the opinion requested would not
have the eﬀect of circumventing the principle of consent by a State to the
judicial settlement of its dispute with another State (para. 90).
   4. The dynamic of decolonization is the right of peoples to self-
determination, a cardinal element of which is the free and genuine expres-
sion of the will of the people concerned. The Court stressed this point in
1975, stating that “the application of the right of self-determination
requires a free and genuine expression of the will of the peoples con-
cerned” (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 32,
para. 55).

249

341           separation of the chagos (decl. iwasawa)

   5. In response to Question (a), the Court concludes that the process of
decolonization of Mauritius was not lawfully completed in 1968 (Advi-
sory Opinion, para. 174). In my understanding, the Court draws this con-
clusion on two grounds: ﬁrst, that the detachment of the Chagos
Archipelago was not based on the free and genuine expression of the will
of the people concerned (para. 172); and, second, that the detachment
was contrary to the principle of territorial integrity (see paragraph 173).

   6. While the lack of the free and genuine expression of the will of the
people is in itself a reason for the Court’s conclusion (para. 172), it also
forms the basis of the Court’s ﬁnding concerning the principle of territo-
rial integrity. The Court conﬁrms that any detachment by the administer-
ing Power of part of a non-self-governing territory, “unless based on the
freely expressed and genuine will of the people of the territory concerned”,
is contrary to the principle of territorial integrity (para. 160). The princi-
ple of territorial integrity applies to a non-self-governing territory form-
ing one territorial unit. In these proceedings, the Court ﬁnds that at the
time of its detachment from Mauritius in 1965, the Chagos Archipelago
was an integral part of that non-self-governing territory (para. 170).
There have been cases in which either a part of a non-self-governing ter-
ritory was separated or a non-self-governing territory was split into more
than one State. A separation or split of a non-self-governing territory is
not contrary to the principle of territorial integrity as long as it is based
on the free and genuine will of the people concerned. Paragraph 173 of
the Opinion suggests that, in the case of Mauritius, the detachment of the
Chagos Archipelago was contrary to the principle of territorial integrity
because it was not based on the free and genuine will of the people con-
cerned.
   7. In response to Question (b), the Court highlights the obligations of
the United Kingdom and all Member States under international law
relating to decolonization.
   8. As a result of its detachment from Mauritius, the Chagos Archipel-
ago was incorporated into a new colony of the United Kingdom known
as the BIOT. Thus, the Chagos Archipelago is to be regarded as a
non-self-governing territory in accordance with Chapter XI (Declaration
regarding Non-Self-Governing Territories) of the Charter of the
United Nations, even though the United Kingdom has not submitted
information under Article 73 (e) of the Charter. As the administering
Power, the United Kingdom has international obligations with respect to
the Chagos Archipelago, including an obligation to respect the right of
peoples to self-determination and obligations arising from Chapter XI of
the Charter. In the present proceedings, it follows from these obligations
that the United Kingdom has an obligation to bring to an end its contin-
ued administration of the Chagos Archipelago as rapidly as possible.
   9. As the right of peoples to self-determination has an erga omnes
character (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports
1995, p. 102, para. 29; Legal Consequences of the Construction of a Wall

250

342           separation of the chagos (decl. iwasawa)

in the Occupied Palestine Territory, Advisory Opinion, I.C.J. Reports
2004 (I), p. 172, para. 88), all States have the duty to promote its realiza-
tion and to render assistance to the United Nations in carrying out its
responsibilities to implement that right (Declaration on the Principles of
International Law concerning Friendly Relations and Co-operation
among States, General Assembly resolution 2625 (XXV)). In the present
proceedings, it follows from this duty that all Member States have an
obligation to co-operate with the United Nations in order to complete the
decolonization of Mauritius (Advisory Opinion, para. 180).

   10. In its Advisory Opinion, the Court states that the decolonization of
Mauritius should be completed “in a manner consistent with the right of
peoples to self-determination” without elaboration (para. 178). It empha-
sizes that “[t]he modalities necessary for ensuring the completion of the
decolonization of Mauritius fall within the remit of the United Nations
General Assembly, in the exercise of its functions relating to decoloniza-
tion” (para. 179). Thus, the Court neither determines the eventual legal
status of the Chagos Archipelago, nor indicates detailed modalities by
which the right to self-determination should be implemented in respect of
the Chagos Archipelago. The Court gives an opinion on the questions
requested by the General Assembly to the extent necessary to assist the
General Assembly in carrying out its function concerning decolonization.
Giving the opinion in this way does not amount to adjudication of a ter-
ritorial dispute between the United Kingdom and Mauritius. For these
reasons, I agree that to give the opinion requested does not have the eﬀect
of circumventing the principle of consent by a State to the judicial settle-
ment of its dispute with another State (para. 90).

                                               (Signed) Yuji Iwasawa.

251