   INTERNATIONAL COURT OF JUSTICE

     REPORTS OF JUDGMENTS,
  ADVISORY OPINIONS AND ORDERS

        JADHAV CASE
        (INDIA v. PAKISTAN)

   REQUEST FOR THE INDICATION
    OF PROVISIONAL MEASURES

       ORDER OF 18 MAY 2017

          2017
   COUR INTERNATIONALE DE JUSTICE

       RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

      AFFAIRE JADHAV
        (INDE c. PAKISTAN)

     DEMANDE EN INDICATION
   DE MESURES CONSERVATOIRES

    ORDONNANCE DU 18 MAI 2017

                             Oﬃcial citation :
            Jadhav (India v. Pakistan), Provisional Measures,
            Order of 18 May 2017, I.C.J. Reports 2017, p. 231

                         Mode oﬃciel de citation :
            Jadhav (Inde c. Pakistan), mesures conservatoires,
          ordonnance du 18 mai 2017, C.I.J. Recueil 2017, p. 231

                                            Sales number
ISSN 0074-4441
ISBN 978-92-1-157321-3
                                            No de vente:   1123

                             18 MAY 2017

                               ORDER

       JADHAV CASE
    (INDIA v. PAKISTAN)
REQUEST FOR THE INDICATION
 OF PROVISIONAL MEASURES

     AFFAIRE JADHAV
     (INDE c. PAKISTAN)
  DEMANDE EN INDICATION
DE MESURES CONSERVATOIRES

                             18 MAI 2017

                          ORDONNANCE

231

                         TABLE OF CONTENTS

                                                                 Paragraphs

Chronology of the Procedure                                           1-12
     I. Prima Facie Jurisdiction                                     15-34
    II. The Rights Whose Protection Is Sought and the Measures
        Requested                                                    35-48
    III. Risk of Irreparable Prejudice and Urgency                   49-56
    IV. Conclusions and Measures to Be Adopted                       57-60
Operative Paragraph                                                     61

4

               232

                              INTERNATIONAL COURT OF JUSTICE

                                                YEAR 2017
   2017
  18 May                                        18 May 2017
General List
 No. 168
                                         JADHAV CASE
                                        (INDIA v. PAKISTAN)

                                 REQUEST FOR THE INDICATION
                                  OF PROVISIONAL MEASURES

                                                 ORDER

               Present: President Abraham; Judges Owada, Cançado Trindade,
                        Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson,
                        Crawford, Gevorgian; Registrar Couvreur.

                   The International Court of Justice,
                 Composed as above,
                 After deliberation,
                 Having regard to Articles 41 and 48 of the Statute of the Court and
               Articles 73, 74 and 75 of the Rules of Court,
                   Makes the following Order:
                   Whereas:

                  1. On 8 May 2017, the Government of the Republic of India (hereinaf-
               ter “India”) ﬁled in the Registry of the Court an Application instituting
               proceedings against the Islamic Republic of Pakistan (hereinafter “Paki-
               stan”) alleging violations of the Vienna Convention on Consular Rela-
               tions of 24 April 1963 “in the matter of the detention and trial of an
               Indian National, Mr. Kulbhushan Sudhir Jadhav”, sentenced to death in
               Pakistan.
                  2. At the end of its Application, India requests:
                    “(1) A relief by way of immediate suspension of the sentence of death
                         awarded to the accused.

               5

233                       jadhav (order 18 V 17)

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

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

  3. In its Application, India seeks to found the jurisdiction of the Court
on Article 36, paragraph 1, of the Statute of the Court and Article I of the
Optional Protocol concerning the Compulsory Settlement of Disputes,
which accompanies the Vienna Convention on Consular Relations.

   4. On 8 May 2017, accompanying its Application, India also submitted
a Request for the indication of provisional measures, referring to Arti-
cle 41 of the Statute of the Court and to Articles 73, 74 and 75 of the
Rules of Court.
   5. In that Request, India asked that the Court indicate:
     “(a) That the Government of the Islamic Republic of Pakistan take
          all measures necessary to ensure that Mr. Kulbhushan Sudhir
          Jadhav is not executed;
      (b) That the Government of the Islamic Republic of Pakistan report
          to the Court the action it has taken in pursuance of sub-
          paragraph (a); and
      (c) That the Government of the Islamic Republic of Pakistan ensure
          that no action is taken that might prejudice the rights of
          the Republic of India or Mr. Kulbhushan Sudhir Jadhav with
          respect to any decision th[e] Court may render on the merits of
          the case.”
    6. The Request also contained the following plea:
        “In view of the extreme gravity and immediacy of the threat that
      authorities in Pakistan will execute an Indian citizen in violation of
      obligations Pakistan owes to India, India respectfully urges the Court

6

234                       jadhav (order 18 V 17)

      to treat this Request as a matter of the greatest urgency and pass an
      order immediately on provisional measures suo motu without waiting
      for an oral hearing. The President is requested [to] exercis[e] his power
      under Article 74, paragraph 4, of the Rules of Court, pending the
      meeting of the Court, to direct the Parties to act in such a way as will
      enable any order the Court may make on the Request for provisional
      measures to have its appropriate eﬀects.”

  7. The Registrar immediately communicated to the Government of
Pakistan the Application, in accordance with Article 40, paragraph 2, of
the Statute of the Court, and the Request for the indication of provisional
measures, in accordance with Article 73, paragraph 2, of the Rules of
Court. He also notiﬁed the Secretary-General of the United Nations of
the ﬁling of the Application and of the Request.
  8. By a letter dated 9 May 2017 addressed to the Prime Minister of
Pakistan, the President of the Court, exercising the powers conferred
upon him under Article 74, paragraph 4, of the Rules of Court, called
upon the Pakistani Government, pending the Court’s decision on the
Request for the indication of provisional measures, “to act in such a way
as will enable any order the Court may make on this Request to have its
appropriate eﬀects”. A copy of that letter was transmitted to the Agent
of India.
  9. By letters dated 10 May 2017, the Registrar informed the Parties
that, pursuant to Article 74, paragraph 3, of the Rules, the Court had
ﬁxed 15 May 2017 as the date for the oral proceedings on the Request for
the indication of provisional measures.
  10. At the public hearings held on 15 May 2017, oral observations
on the Request for the indication of provisional measures were presented
by:
On behalf of India:       Dr. Deepak Mittal,
                          Dr. Vishnu Dutt Sharma,
                          Mr. Harish Salve.
On behalf of Pakistan: Dr. Mohammad Faisal,
                       Mr. Khawar Qureshi.
  11. At the end of its oral observations, India asked the Court to indi-
cate the following provisional measures:
    “(a) that the Government of the Islamic Republic of Pakistan take all
         measures necessary to ensure that Mr. Kulbhushan Sudhir Jadhav
         is not executed;
     (b) that the Government of the Islamic Republic of Pakistan report
         to the Court the action it has taken in pursuance of sub-
         paragraph (a); and
     (c) that the Government of the Islamic Republic of Pakistan ensure

7

235                      jadhav (order 18 V 17)

        that no action is taken that might prejudice the rights of the
        Republic of India or Mr. Kulbhushan Sudhir Jadhav with
        respect to any decision the Court may render on the merits of the
        case”.
  12. For its part, Pakistan asked the Court to reject India’s Request for
the indication of provisional measures.

                                      *
                                  *       *

   13. The context in which the present case has been brought before the
Court can be summarized as follows. Mr. Jadhav has been in the custody
of Pakistani authorities since 3 March 2016, although the circumstances
of his arrest remain in dispute between the Parties. India maintains that
Mr. Jadhav is an Indian national, which Pakistan recognized in its Notes
Verbales of 23 January 2017, 21 March 2017 and 10 April 2017 (see
Annexes 2, 3 and 5 to the Application). The Applicant claims to have
been informed of this arrest on 25 March 2016, when the Foreign Sec-
retary of Pakistan raised the matter with the 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. On
23 January 2017, Pakistan sent a Letter of Request seeking India’s assis-
tance in the investigation process concerning Mr. Jadhav and his alleged
accomplices. On 21 March and 10 April 2017 Pakistan informed India
that consular access to Mr. Jadhav would be considered “in the light of”
India’s response to the said request for assistance.

   14. According to a press statement issued on 14 April 2017 by an
adviser on foreign aﬀairs to the Prime Minister of Pakistan, Mr. Jadhav
was sentenced to death on 10 April 2017 by a court martial due to activi-
ties of “espionage, sabotage and terrorism”. India submits that it pro-
tested and continued to press for consular access and information
concerning the proceedings against Mr. Jadhav. It appears that, under
Pakistani law, Mr. Jadhav would have 40 days to lodge an appeal against
his conviction and sentence (i.e., until 19 May 2017), but it is not known
whether he has done so. India states however that, on 26 April 2017,
Mr. Jadhav’s mother ﬁled “an appeal” under Section 133 (B) and “a peti-
tion” to the Federal Government of Pakistan under Section 131 of the
Pakistan Army Act 1952, both of which were handed over by the Indian
High Commissioner to Pakistan’s Foreign Secretary on the same day.

8

236                        jadhav (order 18 V 17)

                        I. Prima Facie Jurisdiction

   15. The Court may indicate provisional measures only if the provisions
relied on by the 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 the merits of the case (see, for
example, Application of the International Convention for the Suppression of
the Financing of Terrorism and of the International Convention on the
Elimination of All Forms of Racial Discrimination (Ukraine v. Russian
Federation), Provisional Measures, Order of 19 April 2017, I.C.J. Reports
2017, p. 114, para. 17).
   16. In the present case, India seeks to found the jurisdiction of the
Court on Article 36, paragraph 1, of the Statute of the Court and on
Article I of the Optional Protocol concerning the Compulsory Settlement
of Disputes, which accompanies the Vienna Convention on Consular
Relations (hereinafter the “Optional Protocol” and the “Vienna Conven-
tion”, respectively). The Court must therefore ﬁrst seek to determine
whether Article I of the Optional Protocol prima facie confers upon it
jurisdiction to rule on the merits, enabling it — if the other necessary
conditions are fulﬁlled — to indicate provisional measures.

   17. India and Pakistan have been parties to the Vienna Convention
since 28 December 1977 and 14 May 1969, respectively, and to the
Optional Protocol since 28 December 1977 and 29 April 1976, respec-
tively. Neither of them has made reservations to those instruments.

    18. Article I of the Optional Protocol provides as follows:
        “Disputes arising out of the interpretation or application of the
      Convention shall lie within the compulsory jurisdiction of the Inter-
      national Court of Justice and may accordingly be brought before the
      Court by an application made by any party to the dispute being a
      Party to the present Protocol.”
   19. India claims that a dispute exists between the Parties regarding the
interpretation and application of Article 36, paragraph 1, of the Vienna
Convention, which provides as follows:
        “With a view to facilitating the exercise of consular functions relat-
      ing to nationals of the sending State:
      (a) consular oﬃcers shall be free to communicate with nationals of
          the sending State and to have access to them. Nationals of the
          sending State shall have the same freedom with respect to com-
          munication with and access to consular oﬃcers of the sending
          State;
      (b) if he so requests, the competent authorities of the receiving State
          shall, without delay, inform the consular post of the sending State
          if, within its consular district, a national of that State is arrested

9

237                       jadhav (order 18 V 17)

          or committed to prison or to custody pending trial or is detained
          in any other manner. Any communication addressed to the con-
          sular post by the person arrested, in prison, custody or detention
          shall also be forwarded by the said authorities without delay. The
          said authorities shall inform the person concerned without delay
          of his rights under this subparagraph;

      (c) consular oﬃcers shall have the right to visit a national of the
          sending State who is in prison, custody or detention, to converse
          and correspond with him and to arrange for his legal representa-
          tion. They shall also have the right to visit any national of the
          sending State who is in prison, custody or detention in their
          district in pursuance of a judgement. Nevertheless, consular
          oﬃcers shall refrain from taking action on behalf of a national
          who is in prison, custody or detention if he expressly opposes such
          action.”

                                     * *
   20. India contends that Pakistan has breached its obligations under the
above-mentioned provisions in the matter of the arrest, detention and
trial of Mr. Jadhav. The Applicant asserts that Mr. Jadhav has been
arrested, detained, tried and sentenced to death by Pakistan and that,
despite several attempts, it could neither communicate with nor have
access to him, in violation of Article 36, subparagraphs (1) (a) and (1) (c)
of the Vienna Convention, and that Mr. Jadhav has neither been informed
of his rights nor been allowed to exercise them, in violation of sub-
paragraph (1) (b) of the same provision. India asserts that Article 36,
paragraph 1, of the Vienna Convention “admits of no exceptions” and
is applicable irrespective of the charges against the individual concerned.

   21. India acknowledges that the Parties have signed an Agreement on
Consular Access on 21 May 2008 (hereinafter the “2008 Agreement”),
but it maintains that this instrument does not limit the Parties’ rights and
obligations pursuant to Article 36, paragraph 1, of the Vienna Conven-
tion. According to India, while Article 73 of the Vienna Convention rec-
ognizes that agreements between parties may supplement and amplify its
provisions, it does not provide a basis for diluting the obligations con-
tained therein. India therefore considers that this Agreement does not
have any eﬀect on the Court’s jurisdiction in the present case.

  22. India also emphasizes that it only seeks to found the Court’s juris-
diction on Article I of the Optional Protocol, and not on the declarations
made by the Parties under Article 36, paragraph 2, of the Statute. India is
of the view that where treaties or conventions especially provide for the

10

238                      jadhav (order 18 V 17)

jurisdiction of the Court, such declarations, including any reservations
they may contain, are not applicable.

                                     *
   23. Pakistan claims that the Court has no prima facie jurisdiction to
entertain India’s Request for the indication of provisional measures. It
ﬁrst submits that the jurisdiction of the Court is excluded by a number of
reservations in the Parties’ declarations under Article 36, paragraph 2, of
the Statute. Pakistan refers to two of India’s reservations to its declara-
tion of 18 September 1974, i.e., ﬁrst, that preventing the Court from
entertaining cases involving two members of the Commonwealth and,
second, its multilateral treaty reservation. Pakistan also refers to a reser-
vation contained in its own amended declaration of 29 March 2017,
according to which “all matters relating to the national security of the
Islamic Republic of Pakistan” are excluded from the compulsory jurisdic-
tion of the Court. For Pakistan, this reservation is applicable in the pres-
ent case because Mr. Jadhav was arrested, detained, tried and sentenced
for espionage, sabotage and terrorism.

  24. Secondly, Pakistan also contends that Article 36, paragraph 1, of
the Vienna Convention could not have been intended to apply to persons
suspected of espionage or terrorism, and that there can therefore be no
dispute relating to the interpretation or application of that instrument in
the present case.
  25. Finally, Pakistan avers that the facts alleged in the Application fall
within the scope of the 2008 Agreement, which “limit[s] and qualif[ies] or
supplement[s]” the Vienna Convention. It refers to Article 73, para-
graph 2, of the Vienna Convention, 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”. Pakistan considers that the 2008 Agreement “ampli-
ﬁes or supplements [the Parties’] understanding and the operation of the
Convention”. In this regard, Pakistan calls attention to subparagraph (vi)
of the 2008 Agreement, which provides that “[i]n case of arrest, detention
or sentence made on political or security grounds, each side may examine
the case on its merits”. Pakistan argues that this provision applies to
Mr. Jadhav and that the Court therefore lacks prima facie jurisdiction
under Article I of the Optional Protocol.

                                    * *
   26. The Court recalls that the Applicant seeks to ground its jurisdic-
tion in Article 36, paragraph 1, of the Statute and Article I of the Optional

11

239                      jadhav (order 18 V 17)

Protocol; it does not seek to rely on the Parties’ declarations under Arti-
cle 36, paragraph 2, of the Statute. When the jurisdiction of the Court is
founded on particular “treaties and conventions in force” pursuant to
Article 36, paragraph 1, of its Statute, “it becomes irrelevant to consider
the objections to other possible bases of jurisdiction” (Appeal Relating to
the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment,
I.C.J. Reports 1972, p. 60, para. 25; see also Territorial and Maritime Dis-
pute (Nicaragua v. Colombia), Preliminary Objections, Judgment,
I.C.J. Reports 2007 (II), p. 872, para. 132). Therefore, any reservations
contained in the declarations made by the Parties under Article 36, para-
graph 2, of the Statute cannot impede the Court’s jurisdiction specially
provided for in the Optional Protocol. Thus, the Court need not examine
these reservations further.

   27. Article I of the Optional Protocol provides that the Court has
jurisdiction over “[d]isputes arising out of the interpretation or applica-
tion of the [Vienna] Convention” (see paragraph 18 above).

   28. The Court will accordingly ascertain whether, on the date the Appli-
cation was ﬁled, such a dispute appeared to exist between the Parties.
   29. In this regard, the Court notes that the Parties do indeed appear to
have diﬀered, and still diﬀer today, on the question of India’s consular
assistance to Mr. Jadhav under the Vienna Convention. While India has
maintained at various times that Mr. Jadhav should have been (and
should still be) aﬀorded consular assistance under the Vienna Convention
(see for instance Notes Verbales dated 19 and 26 April 2017 annexed to
the Application), Pakistan has stated that such an assistance would be
considered “in the light of India’s response to [its] request for assistance”
in the investigation process concerning him in Pakistan (see the Notes
Verbales of Pakistan dated 21 March and 10 April 2017 annexed to the
Application). These elements are suﬃcient at this stage to establish prima
facie that, on the date the Application was ﬁled, a dispute existed between
the Parties as to the question of consular assistance under the Vienna
Convention with regard to the arrest, detention, trial and sentencing of
Mr. Jadhav.

   30. In order to determine whether it has jurisdiction — even prima
facie — the Court must also ascertain whether such a dispute is one over
which it might have jurisdiction ratione materiae on the basis of Article I
of the Optional Protocol. In this regard, the Court notes that the acts
alleged by India are capable of falling within the scope of Article 36,
paragraph 1, of the Vienna Convention, which, inter alia, guarantees the
right of the sending State to communicate with and have access to its
nationals in the custody of the receiving State (subparagraphs (a)
and (c)), as well as the right of its nationals to be informed of their rights
(subparagraph (b)). The Court considers that the alleged failure by Paki-
stan to provide the requisite consular notiﬁcations with regard to the

12

240                      jadhav (order 18 V 17)

arrest and detention of Mr. Jadhav, as well as the alleged failure to allow
communication and provide access to him, appear to be capable of falling
within the scope of the Vienna Convention ratione materiae.

   31. In the view of the Court, the aforementioned elements suﬃciently
establish, at this stage, the existence between the Parties of a dispute that
is capable of falling within the provisions of the Vienna Convention and
that concerns the interpretation or application of Article 36, paragraph 1,
thereof.
   32. The Court also notes that the Vienna Convention does not contain
express provisions excluding from its scope persons suspected of espio-
nage or terrorism. At this stage, it cannot be concluded that Article 36 of
the Vienna Convention cannot apply in the case of Mr. Jadhav so as to
exclude on a prima facie basis the Court’s jurisdiction under the Optional
Protocol.

   33. In respect of the 2008 Agreement, the Court does not need to
decide at this stage of the proceedings whether Article 73 of the Vienna
Convention would permit a bilateral agreement to limit the rights con-
tained in Article 36 of the Vienna Convention. It is suﬃcient at this point
to note that the provisions of the 2008 Agreement do not impose expressly
such a limitation. Therefore, the Court considers that there is no suﬃcient
basis to conclude at this stage that the 2008 Agreement prevents it from
exercising its jurisdiction under Article I of the Optional Protocol over
disputes relating to the interpretation or the application of Article 36 of
the Vienna Convention.
   34. Consequently, the Court considers that it has prima facie jurisdic-
tion under Article I of the Optional Protocol to entertain the dispute
between the Parties.

             II. The Rights Whose Protection Is Sought
                     and the Measures Requested

   35. The power of the Court to indicate provisional measures under
Article 41 of the Statute has as its object the preservation of the respective
rights claimed by the parties in a case, pending its decision on the merits
thereof. It follows that the Court must be concerned to preserve by such
measures the rights which may subsequently be adjudged by it to belong
to either party. Therefore, the Court may exercise this power only if it is
satisﬁed that the rights asserted by the party requesting such measures are
at least plausible (see, for example, Application of the International Con-
vention for the Suppression of the Financing of Terrorism and of the Inter-
national Convention on the Elimination of All Forms of Racial
Discrimination (Ukraine v. Russian Federation), Provisional Measures,
Order of 19 April 2017, I.C.J. Reports 2017, p. 126, para. 63).

13

241                       jadhav (order 18 V 17)

   36. Moreover, a link must exist between the rights whose protection is
sought and the provisional measures being requested (I.C.J. Reports
2017, p. 126, para. 64).
   37. In its Application, India asserts that the rights it is seeking to pro-
tect are those provided by paragraph 1 of Article 36 of the Vienna Con-
vention (quoted above at paragraph 19).
   38. As the Court stated in its Judgment in the LaGrand (Germany v.
United States of America) case,
         “Article 36, paragraph 1, establishes an interrelated régime designed
      to facilitate the implementation of the system of consular protection.
      It begins with the basic principle governing consular protection: the
      right of communication and access (Art. 36, para. 1 (a)). This clause
      is followed by the provision which spells out the modalities of consu-
      lar notiﬁcation (Art. 36, para. 1 (b)). Finally Article 36, para-
      graph 1 (c), sets out the measures consular oﬃcers may take in
      rendering consular assistance to their nationals in the custody of the
      receiving State.” (I.C.J. Reports 2001, p. 492, para. 74.)

   39. It follows from Article 36, paragraph 1, that all States parties to
the Vienna Convention have a right to provide consular assistance to
their nationals who are in prison, custody or detention in another State
party. They are also entitled to respect for their nationals’ rights con-
tained therein.

                                     * *
   40. In the present case, the Applicant claims that Mr. Jadhav, who is
an Indian national, was arrested, detained, tried and sentenced to death
by Pakistan and that, despite several attempts, India was given no access
to him and no possibility to communicate with him. In this regard, India
states that it requested consular access to the individual on numerous
occasions between 25 March 2016 and 19 April 2017, without success.
India points out that on 21 March 2017, at the end of the trial of
Mr. Jadhav, Pakistan stated that “the case for the consular access to the
Indian national Kulbushan Jadhav shall be considered in the light of
India[’s] response to Pakistan’s request for assistance” in the investigation
process concerning him; Pakistan reiterated its position on 10 April 2017
— apparently the day when Mr. Jadhav was convicted and sentenced
to death (see paragraphs 13-14 above). India argues in this connection
that the conditioning of consular access on assistance in an investigation
is itself a serious violation of the Vienna Convention. It adds that
Mr. Jadhav has not been informed of his rights with regard to consular
assistance. The Applicant concludes from the foregoing that Pakistan
failed to provide the requisite notiﬁcations without delay, and that India

14

242                     jadhav (order 18 V 17)

and its national have been prevented for all practical purposes from
exercising their rights under Article 36, paragraph 1, of the Vienna
Convention.

                                    *
  41. Pakistan, for its part, contests that it has conditioned consular
assistance as alleged by India. Furthermore, it avers that the rights
invoked by India are not plausible because Article 36 of the Vienna Con-
vention does not apply to persons suspected of espionage or terrorism,
and because the situation of Mr. Jadhav is governed by the 2008 Agree-
ment.

                                   * *
   42. At this stage of the proceedings, the Court is not called upon to
determine deﬁnitively whether the rights which India wishes to see pro-
tected exist; it need only decide whether these rights are plausible (see
above paragraph 35 and Application of the International Convention for
the Suppression of the Financing of Terrorism and of the International Con-
vention on the Elimination of All Forms of Racial Discrimination
(Ukraine v. Russian Federation), Provisional Measures, Order of
19 April 2017, I.C.J. Reports 2017, p. 126, para. 64).

   43. The rights to consular notiﬁcation and access between a State and
its nationals, as well as the obligations of the 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, para-
graph 1, of the Vienna Convention. Regarding Pakistan’s arguments that,
ﬁrst, Article 36 of the Vienna Convention does not apply to persons sus-
pected of espionage or terrorism, and that, second, the rules applicable to
the case at hand are provided in the 2008 Agreement, the Court considers
that at this stage of the proceedings, where no legal analysis on these
questions has been advanced by the Parties, these arguments do not pro-
vide a suﬃcient basis to exclude the plausibility of the rights claimed by
India, for the same reasons provided above (see paragraphs 32-33).

   44. India submits that one of its nationals has been arrested, detained,
tried and sentenced to death in Pakistan without having been notiﬁed by
the same State or aﬀorded access to him. The 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.
   45. In the view of the Court, taking into account the legal arguments

15

243                      jadhav (order 18 V 17)

and evidence presented, it appears that the rights invoked by India in the
present case on the basis of Article 36, paragraph 1, of the Vienna Con-
vention are plausible.

                                     *
   46. The Court now turns to the issue of the link between the rights
claimed and the provisional measures requested.
   47. The Court notes that the provisional measures sought by India
consist in ensuring that the 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.

  48. The Court considers that these measures are aimed at preserving
the rights of India and of Mr. Jadhav under Article 36, paragraph 1, of
the Vienna Convention. Therefore, a link exists between the rights claimed
by India and the provisional measures being sought.

           III. Risk of Irreparable Prejudice and Urgency

   49. The Court, pursuant to Article 41 of its Statute, has the power to
indicate provisional measures when irreparable prejudice could be caused
to rights which are the subject of judicial proceedings (see, for example,
Application of the International Convention for the Suppression of the
Financing of Terrorism and of the International Convention on the Elimina-
tion of All Forms of Racial Discrimination (Ukraine v. Russian Federa-
tion), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017,
p. 136, para. 88).
   50. However, the power of the Court to indicate provisional measures
will be exercised only if there is urgency, in the sense that there is a real
and imminent risk that irreparable prejudice will be caused to the rights
in dispute before the Court gives its ﬁnal decision (ibid., para. 89). The
Court must therefore consider whether such a risk exists at this stage of
the proceedings.

                                    * *
   51. India contends that the execution of Mr. Jadhav would cause irrep-
arable prejudice to the rights it claims and that this execution may occur
at any moment before the Court decides on the merits of its case, as any
appeal proceedings in Pakistan could be concluded very quickly and it is
unlikely that the conviction and sentence would be reversed. In this
regard, India explains that the only judicial remedy available to
Mr. Jadhav was the ﬁling of an appeal within 40 days of the sentence

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244                      jadhav (order 18 V 17)

rendered on 10 April 2017. It points out that, although Mr. Jadhav may
seek clemency, ﬁrst from the Chief of Army Staﬀ of Pakistan and sec-
ondly from the President of Pakistan, these are not judicial remedies.

                                     *
   52. Pakistan claims that there is no urgency because Mr. Jadhav can
still apply for clemency and that a period of 150 days is provided for in
this regard. According to Pakistan, even if this period started on
10 April 2017 (the date of conviction at ﬁrst instance), it would extend
beyond August 2017. The Agent for Pakistan stated that there would be
no urgent need to indicate provisional measures if the Parties agreed to
an expedited hearing and suggested that Pakistan would be content for
the Court to list the Application for hearing within six weeks.

                                    * *
   53. Without prejudging the result of any appeal or petition against the
decision to sentence Mr. Jadhav to death, the Court considers that, as far
as the risk of irreparable prejudice to the rights claimed by India is con-
cerned, the mere fact that Mr. Jadhav is under such a sentence and might
therefore be executed is suﬃcient to demonstrate the existence of such a
risk.
   54. There is considerable uncertainty as to when a decision on any
appeal or petition could be rendered and, if the 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 the end of
August 2017. This suggests that an execution could take place at any
moment thereafter, before the Court has given its ﬁnal decision in the
case. The Court also notes that Pakistan has given no assurance that
Mr. Jadhav will not be executed before the Court has rendered its ﬁnal
decision. In those circumstances, the Court is satisﬁed that there is
urgency in the present case.

   55. The Court adds, with respect to the criteria of irreparable prejudice
and urgency, that the fact that Mr. Jadhav could eventually petition
Pakistani authorities for clemency, or that the date of his execution
has not yet been ﬁxed, are not per se circumstances that should preclude
the Court from indicating provisional measures (see, e.g., Avena and
Other Mexican Nationals (Mexico v. United States of America), Provi-
sional Measures, Order of 5 February 2003, I.C.J. Reports 2003, p. 91,
para. 54).
   56. The Court notes that the issues brought before it in this case do not

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245                      jadhav (order 18 V 17)

concern the question whether a State is entitled to resort to the death
penalty. As it has observed in the past, “the function of this Court is to
resolve international legal disputes between States, inter alia when they
arise out of the interpretation or application of international conventions,
and not to act as a court of criminal appeal” (LaGrand (Germany v.
United States of America), Provisional Measures, Order of 3 March 1999,
I.C.J. Reports 1999 (I), p. 15, para. 25; Avena and Other Mexican Nation-
als (Mexico v. United States of America), Provisional Measures, Order of
5 February 2003, I.C.J. Reports 2003, p. 89, para. 48).

            IV. Conclusion and Measures to Be Adopted

  57. The Court concludes from all the above considerations that the
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.

  58. Under the present circumstances, it is appropriate for the Court to
order that 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 the measures taken in implementation of
the present Order.

                                      *
                                  *       *

  59. The Court reaﬃrms that its “orders on provisional measures under
Article 41 [of the Statute] have binding eﬀect” (LaGrand (Germany v.
United States of America), Judgment, I.C.J. Reports 2001, p. 506,
para. 109) and thus create international legal obligations for any party to
whom the provisional measures are addressed.

                                      *
                                  *       *

  60. The decision given in the present proceedings in no way prejudges
the question of the jurisdiction of the Court to deal with the merits of the
case or any questions relating to the admissibility of the Application or to
the merits themselves. It leaves unaﬀected the right of the Governments
of India and Pakistan to submit arguments in respect of those questions.

                                      *
                                  *       *

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246                      jadhav (order 18 V 17)

  61. For these reasons,

  The Court,
  I. Unanimously,
  Indicates the following provisional measures:
  Pakistan shall take all measures at its disposal to ensure that Mr. Jad-
hav is not executed pending the ﬁnal decision in these proceedings and
shall inform the Court of all the measures taken in implementation of the
present Order.

  II. Unanimously,
   Decides that, until the Court has given its ﬁnal decision, it shall remain
seised of the matters which form the subject-matter of this Order.
   Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this eighteenth day of May two thousand
and seventeen, in three copies, one of which will be placed in the archives
of the Court and the others transmitted to the Government of the Repub-
lic of India and the Government of the Islamic Republic of Pakistan.

                                            (Signed) Ronny Abraham,
                                                        President.
                                           (Signed) Philippe Couvreur,
                                                         Registrar.

  Judge Cançado Trindade appends a separate opinion to the Order of
the Court; Judge Bhandari appends a declaration to the Order of the
Court.

                                                       (Initialled) R.A.
                                                       (Initialled) Ph.C.

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