   INTERNATIONAL COURT OF JUSTICE

     REPORTS OF JUDGMENTS,
  ADVISORY OPINIONS AND ORDERS

        JADHAV CASE
        (INDIA v. PAKISTAN)

     JUDGMENT OF 17 JULY 2019

          2019
   COUR INTERNATIONALE DE JUSTICE

       RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

      AFFAIRE JADHAV
        (INDE c. PAKISTAN)

     ARRÊT DU 17 JUILLET 2019

                           Oﬃcial citation :
                     Jadhav (India v. Pakistan),
                 Judgment, I.C.J. Reports 2019, p. 418

                         Mode oﬃciel de citation :
                      Jadhav (Inde c. Pakistan),
                   arrêt, C.I.J. Recueil 2019, p. 418

                                            Sales number
ISSN 0074-4441
ISBN 978-92-1-157375-6
                                            No de vente:   1173

                        17 JULY 2019

                        JUDGMENT

  JADHAV CASE
(INDIA v. PAKISTAN)

 AFFAIRE JADHAV
(INDE c. PAKISTAN)

                      17 JUILLET 2019

                          ARRÊT

418

                            TABLE OF CONTENTS

                                                                          Paragraphs

Chronology of the Procedure                                                    1-19
    I.   Factual Background                                                   20-32
 II.     Jurisdiction                                                         33-38
III.     Admissibility                                                        39-66
         A. First objection: abuse of process                                 40-50
         B. Second objection: abuse of rights                                 51-58
         C. Third objection: India’s alleged unlawful conduct                 59-66

IV.      The Alleged Violations of the Vienna Convention on
         Consular Relations                                                  67-124
         A. Applicability of Article 36 of the Vienna Convention on
            Consular Relations                                                68-98
            1. Alleged exception to Article 36 of the Vienna Conven-
               tion based on charges of espionage                             69-86
               (a) Interpretation of Article 36 in accordance with the
                    ordinary meaning of its terms                             72-75
               (b) The travaux préparatoires of Article 36                    76-86
                     (i) International Law Commission (1960)                  77-83
                    (ii) The Vienna Conference (1963)                         84-86
            2. Alleged espionage exception under customary interna-
               tional law                                                     87-90
            3. Relevance of the 2008 Agreement on Consular Access
               between India and Pakistan                                     91-98
         B. Alleged violations of Article 36 of the Vienna Convention
            on Consular Relations                                            99-120
            1. Alleged failure to inform Mr. Jadhav of his rights under
               Article 36, paragraph 1 (b)                                  100-102

            2. Alleged failure to inform India, without delay, of the
               arrest and detention of Mr. Jadhav                           103-113

            3. Alleged failure to provide consular access                   114-120

         C. Abuse of rights                                                 121-124
    V.   Remedies                                                           125-148
Operative Clause                                                                149

4

               419

                              INTERNATIONAL COURT OF JUSTICE

   2019
                                                 YEAR 2019
  17 July
General List                                     17 July 2019
 No. 168

                                           JADHAV CASE
                                          (INDIA v. PAKISTAN)

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

                                                       *

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

                                                       *

                  Admissibility of India’s Application.
                  First objection of Pakistan to admissibility — Alleged abuse of process — No
               basis to conclude that India abused its procedural rights when it requested indica-
               tion of provisional measures — Articles II and III of Optional Protocol do not
               contain preconditions to the Court’s exercise of its jurisdiction — First objection
               to admissibility rejected. Second objection of Pakistan to admissibility — Alleged
               abuse of rights — Contention by Pakistan that India failed to prove Mr. Jadhav’s
               nationality — No room for doubt that Mr. Jadhav is of Indian nationality —
               Other arguments advanced by Pakistan based on alleged breaches of India’s inter-
               national obligations under Security Council resolution 1373 (2001) — Allegations
               to be examined below as part of the merits — Second objection to admissibility
               rejected.

               5

420                            jadhav (judgment)

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

    India’s Application admissible.

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

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

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

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

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

                                        *

6

421                           jadhav (judgment)

   Remedies.
   Pakistan under obligation to cease internationally wrongful acts of a continuing
character — Mr. Jadhav to be informed without further delay of his rights —
Indian consular officers to be given access to him and be allowed to arrange for his
legal representation.
   Appropriate remedy is effective review and reconsideration of conviction and
sentence of Mr. Jadhav — Full weight to be given to the effect of violation of
rights set forth in Article 36 — Choice of means left to Pakistan — Pakistan to
take all measures to provide for effective review and reconsideration, including, if
necessary, by enacting appropriate legislation — Continued stay of execution con-
stitutes condition for effective review and reconsideration of conviction and sen-
tence of Mr. Jadhav.

                                 JUDGMENT

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

    In the Jadhav case,
    between
the Republic of India,
represented by
  Mr. Deepak Mittal, Joint Secretary, Ministry of External Aﬀairs,
  as Agent;
  Mr. Vishnu Dutt Sharma, Additional Secretary, Ministry of External Aﬀairs,

    as Co-Agent;
    Mr. Harish Salve, Senior Advocate,
    as Senior Counsel;
    H.E. Mr. Venu Rajamony, Ambassador of the Republic of India to the King-
       dom of the Netherlands;
    Mr. Luther M. Rangreji, Counsellor, Embassy of India in the Kingdom of
       the Netherlands,
    as Adviser;
    Ms Chetna N. Rai, Advocate,
    Ms Arundhati Dattaraya Kelkar, Advocate,
    as Junior Counsel;
    Mr. S. Senthil Kumar, Legal Oﬃcer, Ministry of External Aﬀairs,

7

422                           jadhav (judgment)

    Mr. Sandeep Kumar, Deputy Secretary, Ministry of External Aﬀairs,
    as Advisers,
    and
the Islamic Republic of Pakistan,
represented by
  Mr. Anwar Mansoor Khan, Attorney General for the Islamic Republic of
     Pakistan,
  as Agent;
  Mr. Mohammad Faisal, Director General (South Asia and South Asian
     Association for Regional Cooperation), Ministry of Foreign Aﬀairs,

    as Co-Agent;
    H.E. Mr. Shujjat Ali Rathore, Ambassador of the Islamic Republic of Paki-
       stan to the Kingdom of the Netherlands;
    Ms Fareha Bugti, Director, Ministry of Foreign Aﬀairs;
    Mr. Junaid Sadiq, First Secretary, Embassy of Pakistan in the Kingdom of
       the Netherlands;
    Mr. Kamran Dhangal, Deputy Director, Ministry of Foreign Aﬀairs;
    Mr. Ahmad Irfan Aslam, Head of the International Dispute Unit, Oﬃce of
       the Attorney General;
    Mr. Mian Shaoor Ahmad, Consultant, Oﬃce of the Attorney General;
    Mr. Tahmasp Razvi, Oﬃce of the Attorney General;
    Mr. Khurram Shahzad Mughal, Assistant Consultant, Ministry of Law and
       Justice;
    Mr. Khawar Qureshi, QC, member of the Bar of England and Wales,
    as Legal Counsel and Advocate;
    Ms Catriona Nicol, Associate, McNair Chambers,
    as Junior Counsel;
    Mr. Joseph Dyke, Associate, McNair Chambers,
    as Legal Assistant;
    Brigadier (retired) Anthony Paphiti,
    Colonel (retired) Charles Garraway, CBE,
    as Legal Experts,

    The Court,
    composed as above,
    after deliberation,
    delivers the following Judgment:
   1. On 8 May 2017, the Government of the Republic of India (hereinafter
“India”) ﬁled in the Registry of the Court an Application instituting proceed-
ings against the Islamic Republic of Pakistan (hereinafter “Pakistan”) alleging

8

423                          jadhav (judgment)

violations of the Vienna Convention on Consular Relations of 24 April 1963
(hereinafter the “Vienna Convention”) “in the matter of the detention and trial
of an Indian national, Mr. Kulbhushan Sudhir Jadhav”, sentenced to death by
a military court in Pakistan.
   2. In its Application, India seeks to found the jurisdiction of the Court on
Article 36, paragraph 1, of the Statute of the Court and Article I of the Optional
Protocol to the Vienna Convention on Consular Relations concerning the Com-
pulsory Settlement of Disputes (hereinafter the “Optional Protocol”).

   3. On 8 May 2017, India also submitted a Request for the indication of pro-
visional measures, referring to Article 41 of the Statute and to Articles 73, 74
and 75 of the Rules of Court.
   4. The Registrar immediately communicated to the Government of Pakistan
the Application, in accordance with Article 40, paragraph 2, of the Statute of
the Court, and the Request for the indication of provisional measures, pursuant
to Article 73, paragraph 2, of the Rules of Court. He also notiﬁed the
Secretary-General of the United Nations of the ﬁling of the Application and
the Request by India.
   5. By a letter dated 9 May 2017 addressed to the Prime Minister of Pakistan,
the President of the Court, exercising the powers conferred upon him under
Article 74, paragraph 4, of the Rules of Court, called upon the Pakistani Gov-
ernment, pending the Court’s decision on the Request for the indication of pro-
visional measures, “to act in such a way as will enable any order the Court may
make on this Request to have its appropriate eﬀects”. A copy of that letter was
transmitted to the Agent of India.
   6. By letter dated 10 May 2017, the Registrar informed all Member States of
the United Nations of the ﬁling of the Application and the Request for the indi-
cation of provisional measures by India.
   7. In conformity with Article 40, paragraph 3, of the Statute of the Court, the
Registrar later notiﬁed the Members of the United Nations, through the
Secretary-General, of the ﬁling of the Application, by transmission of the
printed bilingual text.
   8. By an Order of 18 May 2017, the Court indicated the following provi-
sional measures:
      “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”.

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

   9. By a letter of 8 June 2017, the Co-Agent of Pakistan informed the Court
that “the Government of the Islamic Republic of Pakistan ha[d] instructed the
relevant departments of the [G]overnment to give eﬀect to the Order of the
Court dated 18 May 2017”.
   10. By an Order dated 13 June 2017, the President of the Court ﬁxed 13 Sep-
tember 2017 and 13 December 2017 as the respective time-limits for the ﬁling of
a Memorial by India and of a Counter-Memorial by Pakistan. Those pleadings
were ﬁled within the time-limits so ﬁxed.

9

424                            jadhav (judgment)

   11. Since the Court included upon the Bench no judge of Pakistani national-
ity, Pakistan proceeded to exercise the right conferred upon it by Article 31,
paragraph 2, of the Statute to choose a judge ad hoc to sit in the case; it chose
Mr. Tassaduq Hussain Jillani.
   12. Pursuant to the instructions of the Court under Article 43, paragraph 1,
of the Rules of Court, the Registrar addressed to States parties to the Vienna
Convention and to States parties to the Optional Protocol the notiﬁcations pro-
vided for in Article 63, paragraph 1, of the Statute of the Court.
   13. By an Order dated 17 January 2018, the Court authorized the submission
of a Reply by India and a Rejoinder by Pakistan and ﬁxed 17 April 2018 and
17 July 2018 as the respective time-limits for the ﬁling of those pleadings. The
Reply and the Rejoinder were ﬁled within the time-limits thus ﬁxed.

   14. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court,
after ascertaining the views of the Parties, decided that copies of the pleadings
and documents annexed would be made accessible to the public on the opening
of the oral proceedings.
   15. By letters received in the Registry on 18 February 2019, the ﬁrst day of
hearings, Pakistan informed the Court of its intention to call an expert and to
present audio-visual material during the oral proceedings. Further, Pakistan
expressed its intention to produce a new document. By letters dated 19 February
2019, the Registrar informed the Parties that the Court, having ascertained the
views of India, had decided that it would not be appropriate to grant Pakistan’s
requests in the circumstances of the case.
   16. Public hearings were held from 18 to 21 February 2019, at which the
Court heard the oral arguments and replies of:
For India:    Mr. Deepak Mittal,
              Mr. Harish Salve.
For Pakistan: Mr. Anwar Mansoor Khan,
              Mr. Khawar Qureshi.

                                          *
  17. In the Application, the following claims were made by India:
     “(1) A relief by way of immediate suspension of the sentence of death awarded
          to the accused.
      (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 Con-
          vention rights under Article 36, particularly Article 36, paragraph 1 (b),
          and in deﬁance of elementary human rights of an accused which are
          also to be given eﬀect as mandated under Article 14 of the 1966
          International Covenant on Civil and Political Rights, is violative of
          international law and the provisions of the Vienna Convention; and

      (3) 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 Conven-

10

425                            jadhav (judgment)

          tion and international law by giving eﬀect to the sentence or the con-
          viction in any manner, and directing it to release the convicted Indian
          national forthwith.”

  18. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Government of India,
  in the Memorial:
          “For these reasons, the submissions of the Government of India, respect-
      fully request this Court to adjudge and declare that Pakistan acted in egre-
      gious breach of Article 36 of the Vienna Convention on Consular Relations,
      in:
        (i) Failing to inform India, without delay, of the arrest and/or detention
            of Jadhav,
       (ii) Failing to inform Jadhav of his rights under Article 36 of the Vienna
            Convention on Consular Relations,
      (iii) Declining access to Jadhav by consular oﬃcers of India, contrary to
            their right to visit Jadhav, while under custody, detention or in prison,
            and to converse and correspond with him, or to arrange for his legal
            representation.

  And that pursuant to the foregoing,
   (i) Declare that the sentence of the military court arrived at, in brazen
         deﬁance of the Vienna Convention rights under Article 36, particularly
         Article 36, paragraph 1 (b), and in deﬁance of elementary human rights
         of Jadhav, which are also to be given eﬀect as mandated under Arti-
         cle 14 of the 1966 International Covenant on Civil and Political Rights,
         is violative of international law and the provisions of the Vienna Con-
         vention;
    (ii) Declare that India is entitled to restitutio in integrum;
   (iii) Restrain Pakistan from giving eﬀect to the sentence or conviction in
         any manner, and direct it to release the Indian National, Jadhav, forth-
         with, and to direct Pakistan to facilitate his safe passage to India;

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

  These submissions were conﬁrmed in the Reply.
On behalf of the Government of Pakistan,

11

426                            jadhav (judgment)

  in the Counter-Memorial:
         “For the reasons set out in this Counter-Memorial, Pakistan requests the
      Court to adjudge and declare that the claims of India, as advanced through
      its Application and its Memorial, are rejected.”
  in the Rejoinder:
         “For the reasons set out in this Rejoinder, as well as those set out in the
      Counter-Memorial, Pakistan requests the Court to adjudge and declare that
      the claims of India, as advanced through its Application, its Memorial and
      its Reply, are rejected.”
  19. At the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Government of India,
     “(1) The Government of India requests this Court to adjudge and declare
          that, Pakistan acted in egregious breach of Article 36 of the Vienna
          Convention on Consular Relations, 1963 (Vienna Convention) in:

            (i) Failing to inform India, without delay, of the detention of Jadhav;
           (ii) Failing to inform Jadhav of his rights under Article 36 of the
                Vienna Convention on Consular Relations, 1963;
          (iii) Declining access to Jadhav by consular oﬃcers of India, contrary
                to their right to visit Jadhav, while under custody, detention or in
                prison, and to converse and correspond with him, or to arrange for
                his legal representation.

      And that pursuant to the foregoing,
      (2) Declare that:
          (a) the sentence by Pakistan’s military court arrived at, in brazen deﬁ-
              ance of the Vienna Convention rights under Article 36, particularly
              Article 36, paragraph 1 (b), and in deﬁance of elementary human
              rights of Jadhav, which are also to be given eﬀect as mandated
              under Article 14 of the 1966 International Covenant on Civil and
              Political Rights (ICCPR), is violative of international law and the
              provisions of the Vienna Convention;

          (b) India is entitled to restitutio in integrum;
      (3) Annul the decision of the military court and restrain Pakistan from
          giving eﬀect to the sentence or conviction in any manner; and

      (4) Direct it to release the Indian National, Jadhav, forthwith, and to facil-
          itate his safe passage to India;
      (5) In the alternative, and if this Court were to ﬁnd that Jadhav is not to
          be released, then
            (i) annul the decision of the military court and restrain Pakistan from
                giving eﬀect to the sentence awarded by the military court,
      or in the further alternative,

12

427                            jadhav (judgment)

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

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

On behalf of the Government of Pakistan,
   “The Islamic Republic of Pakistan respectfully requests the Court, for the
reasons set out in Pakistan’s written pleadings and in its oral submissions made
in the course of these hearings, to declare India’s claim inadmissible. Further or
in the alternative, the Islamic Republic of Pakistan respectfully requests the
Court to dismiss India’s claim in its entirety.”

                                           *
                                       *       *
                             I. Factual Background

   20. The Court observes that the Parties disagree on several facts relat-
ing to the dispute before it. Their points of disagreement will be men-
tioned where necessary.
   21. Since 3 March 2016, an individual named Kulbhushan Sudhir Jad-
hav (hereinafter “Mr. Jadhav”) has been in the custody of Pakistani
authorities. The circumstances of his apprehension remain in dispute
between the Parties. According to India, Mr. Jadhav was kidnapped from
Iran, where he was residing and carrying out business activities after his
retirement from the Indian Navy. He was subsequently transferred to
Pakistan and detained for interrogation. Pakistan contends that Mr. Jad-
hav, whom it accuses of performing acts of espionage and terrorism on
behalf of India, was arrested in Balochistan near the border with Iran
after illegally entering Pakistani territory. Pakistan explains that, at the
moment of his arrest, Mr. Jadhav was in possession of an Indian passport
bearing the name “Hussein Mubarak Patel”. India denies these allega-
tions.
   22. On 25 March 2016, Pakistan raised the issue with the High Com-
missioner of India in Islamabad and released a video in which Mr. Jad-
hav appears to confess to his involvement in acts of espionage and
terrorism in Pakistan at the behest of India’s foreign intelligence agency
“Research and Analysis Wing” (also referred to by its acronym “RAW”).
The circumstances under which the video was recorded are unknown to

13

428                        jadhav (judgment)

the Court. On the same day, Pakistan notiﬁed the permanent members of
the Security Council of the United Nations of the matter.

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

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

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

  26. On 2 January 2017, the Adviser to the Prime Minister of Pakistan
on Foreign Aﬀairs sent a letter to the Secretary-General of the
United Nations informing him of Mr. Jadhav’s arrest and confession,
which, in his view, conﬁrmed India’s involvement in activities aimed at
“destabilizing Pakistan”.
  27. On 23 January 2017, the Ministry of Foreign Aﬀairs of Pakistan
sent a “Letter of Assistance for Criminal Investigation against Indian
National Kulbhushan Sudhair Jadhev” to the High Commission of India
in Islamabad, seeking, in particular, support in “obtaining evidence,

14

429                        jadhav (judgment)

material and record for the criminal investigation” of Mr. Jadhav’s activ-
ities. The letter referred to India’s “earlier assurances of assistance, on a
reciprocal basis, in criminal/terrorism matters”, as well as resolu-
tion 1373 (2001) adopted by the Security Council concerning measures to
prevent and suppress threats to international peace and security caused
by terrorist acts. Pakistan claims that, despite reiterated reminders, prior
to the hearings before the Court, it has received no “substantive response”
from India regarding this request. India, for its part, refers to two
Notes Verbales dated 19 June and 11 December 2017, respectively, in
which it stated that Pakistan’s request had no legal basis and was not, in
any event, supported by credible evidence.

  28. On 21 March 2017, the Ministry of Foreign Aﬀairs of Pakistan
sent a Note Verbale to the High Commission of India in Islamabad indi-
cating that India’s request for consular access would be considered “in
the light of Indian side’s response to Pakistan’s request for assistance in
investigation process and early dispensation of justice”. On 31 March
2017, India replied that “[c]onsular access to Mr. Jadhav would be an
essential pre-requisite in order to verify the facts and understand the cir-
cumstances of his presence in Pakistan”. The Parties raised similar argu-
ments in subsequent diplomatic exchanges.

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

   30. On 26 April 2017, the High Commission of India in Islamabad
transmitted to Pakistan, on behalf of Mr. Jadhav’s mother, an “appeal”
under Section 133 (B) and a petition to the Federal Government of Paki-
stan under Section 131 of the Pakistan Army Act. India asserts that,
because Pakistan denied it access to the case ﬁle, both documents had to
be prepared on the sole basis of information available in the public
domain.
   31. On 22 June 2017, the Inter Services Public Relations of Pakistan
issued a press release announcing that Mr. Jadhav had made a mercy

15

430                        jadhav (judgment)

petition to the Chief of Army Staﬀ after the rejection of his appeal by the
Military Appellate Court. India claims that it has received no clear infor-
mation on the circumstances of this appeal or the status of any appeal or
petition concerning Mr. Jadhav’s sentence. The above-mentioned press
release also referred to another confessional statement by Mr. Jadhav
recorded on a date and in circumstances that remain unknown to the
Court.

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

                             II. Jurisdiction

   33. India and Pakistan have been parties to the Vienna Convention
since 28 December 1977 and 14 May 1969 respectively. They also were, at
the time of the ﬁling of the Application, parties to the Optional Protocol
without any reservations or declarations.
   34. India seeks to found the Court’s jurisdiction on Article 36, para-
graph 1, of the Statute and on Article I of the Optional Protocol, which
provides:
        “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.”
   35. The present dispute concerns the question of consular assistance
with regard to the arrest, detention, trial and sentencing of Mr. Jadhav.
The Court notes that Pakistan has not contested that the dispute relates
to the interpretation and application of the Vienna Convention.
   36. The Court also notes that, in its Application, written pleadings and
ﬁnal submissions, India asks the Court to declare that Pakistan has vio-
lated Mr. Jadhav’s “elementary human rights”, “which are also to be
given eﬀect as mandated under Article 14 of the 1966 International Cov-
enant on Civil and Political Rights” (hereinafter the “Covenant”). The
Covenant entered into force for India on 10 July 1979 and for Pakistan
on 23 September 2010. In this respect, the Court observes that its jurisdic-
tion in the present case arises from Article I of the Optional Protocol and
therefore does not extend to the determination of breaches of interna-
tional law obligations other than those under the Vienna Convention

16

431                         jadhav (judgment)

(cf. Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I),
pp. 45-46, para. 85, and p. 68, para. 153).

   37. This conclusion does not preclude the Court from taking into
account other obligations under international law in so far as they are
relevant to the interpretation of the Vienna Convention (cf. ibid.,
pp. 45-46, para. 85).
   38. In light of the above, the Court ﬁnds that it has jurisdiction under
Article I of the Optional Protocol to entertain India’s claims based on
alleged violations of the Vienna Convention.

                             III. Admissibility

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

                   A. First Objection: Abuse of Process
   40. In its ﬁrst objection to the admissibility of India’s Application,
Pakistan asks the Court to rule that India has abused the Court’s pro-
cedures. Pakistan advances two main arguments to this end.
   41. First, it alleges that when requesting the indication of provisional
measures on 8 May 2017, India failed to draw the Court’s attention to the
existence of what Pakistan regards as “highly material facts”. More spe-
ciﬁcally, it refers to the existence of a constitutional right to lodge a clem-
ency petition within a period of 150 days after Mr. Jadhav’s death
sentence, which would have stayed his execution until at least that dead-
line. According to Pakistan, this possibility was made public by means of
a press statement dated 14 April 2017 (see paragraph 29 above).

   42. Secondly, Pakistan submits that, before instituting proceedings on
8 May 2017, India had failed to “give consideration” to other dispute
settlement mechanisms envisaged in Articles II and III of the Optional
Protocol. In this connection, Pakistan claims that, in disregard of these
provisions, it was not formally notiﬁed of the existence of a dispute con-
cerning the interpretation or application of the Vienna Convention until
the institution of proceedings on 8 May 2017.
   43. India rejects these allegations. With reference to Pakistan’s ﬁrst
argument, it claims that the fact that the Court indicated provisional
measures in relation to Mr. Jadhav’s situation excludes the possibility of
an abuse of process by means of India’s request for such measures. With
reference to Pakistan’s second argument, it asserts that Articles II and III

17

432                         jadhav (judgment)

of the Optional Protocol do not contain preconditions to the Court’s
jurisdiction under Article I.

                                        *
                                    *       *

   44. The Court observes, in relation to Pakistan’s ﬁrst argument, that in
its Order indicating provisional measures it took into account the possible
consequences for Mr. Jadhav’s situation of the availability under Paki-
stani law of any appeal or petition procedure, including the clemency
petition to which Pakistan refers in support of its claim (Jadhav (India v.
Pakistan), Provisional Measures, Order of 18 May 2017, I.C.J. Reports
2017, pp. 244-245, paras. 53-56). In this regard, it concluded, inter alia,
that “[t]here [was] 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” (ibid., para. 54). Therefore, there
is no basis to conclude that India abused its procedural rights when
requesting the Court to indicate provisional measures in this case.

  45. In relation to the second argument, the Court notes that none of
the provisions of the Optional Protocol relied on by Pakistan contain pre-
conditions to the Court’s exercise of its jurisdiction.
  46. Article II reads as follows:
         “The parties may agree, within a period of two months after one
      party has notiﬁed its opinion to the other that a dispute exists, to
      resort not to the International Court of Justice but to an arbitral
      tribunal. After the expiry of the said period, either party may bring
      the dispute before the Court by an application.”

  According to Article III:
         “1. Within the same period of two months, the parties may agree
      to adopt a conciliation procedure before resorting to the International
      Court of Justice.

        2. The conciliation commission shall make its recommendations
      within ﬁve months after its appointment. If its recommendations are
      not accepted by the parties to the dispute within two months after
      they have been delivered, either party may bring the dispute before
      the Court by an application.”
 47. The Court interpreted these provisions in the case concerning
United States Diplomatic and Consular Staff in Tehran (United States of
America v. Iran), where it ruled that Articles II and III of the Optional

18

433                          jadhav (judgment)

Protocols to the Vienna Convention on Diplomatic Relations and to the
Vienna Convention on Consular Relations do not lay down a
      “precondition of the applicability of the precise and categorical pro-
      vision contained in Article I establishing the compulsory jurisdiction
      of the Court in respect of disputes arising out of the interpretation or
      application of the Vienna Convention in question. Articles II and III
      provide only that, as a substitute for recourse to the Court, the parties
      may agree upon resort either to arbitration or to conciliation.” (Judg-
      ment, I.C.J. Reports 1980, pp. 25-26, para. 48; emphasis in the origi-
      nal.)
   48. It follows that India was under no obligation in the present case to
consider other dispute settlement mechanisms prior to instituting pro-
ceedings before the Court on 8 May 2017. Thus, Pakistan’s objection
based on the alleged non-compliance by India with Articles II and III of
the Optional Protocol cannot be upheld.
   49. The Court recalls that “only in exceptional circumstances should
[it] reject a claim based on a valid title of jurisdiction on the ground of
abuse of process. In this regard, there has to be clear evidence that the
applicant’s conduct amounts to an abuse of process” (Certain Iranian
Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 2019, pp. 42-43, para. 113, citing
Immunities and Criminal Proceedings (Equatorial Guinea v. France), Pre-
liminary Objections, Judgment, I.C.J. Reports 2018 (I), p. 336, para. 150).
The Court does not consider that in the present case there are such excep-
tional circumstances that would warrant rejecting India’s claims on the
ground of abuse of process.
   50. Accordingly, the Court ﬁnds that Pakistan’s ﬁrst objection to the
admissibility of India’s Application must be rejected.

                    B. Second Objection: Abuse of Rights
   51. In its second objection to the admissibility of India’s Application,
Pakistan requests the Court to rule that India has abused various rights it
has under international law.
   52. In its pleadings, Pakistan has based this objection on three main
arguments. First, it refers to India’s refusal to “provide evidence” of
Mr. Jadhav’s Indian nationality by means of his “actual passport in his
real name”, even though it has a duty to do so. Secondly, Pakistan men-
tions India’s failure to engage with its request for assistance in relation to
the criminal investigations into Mr. Jadhav’s activities. Thirdly, Pakistan
alleges that India authorized Mr. Jadhav to cross the Indian border with
a “false cover name authentic passport” in order to conduct espionage
and terrorist activities. In relation to these arguments, Pakistan invokes
various counter-terrorism obligations set out in Security Council resolu-
tion 1373 (2001).

19

434                         jadhav (judgment)

   53. India refers to what it views as contradictions between Pakistan’s
arguments before the Court regarding the question of Mr. Jadhav’s
nationality, on the one hand, and the Respondent’s own behaviour after
his arrest, on the other. It relies, inter alia, on the allusion made in Paki-
stan’s diplomatic exchanges to Mr. Jadhav’s membership of India’s
“Research and Analysis Wing” and, more speciﬁcally, to his Indian
nationality. India also cites the absence of a mutual legal assistance treaty,
from which it concludes that it has no obligation to co-operate with Pak-
istan’s criminal investigations, and explains that, in any event, the right of
consular assistance under Article 36 of the Vienna Convention is not
dependent on a party’s compliance with any obligation of this kind.
Lastly, India considers Pakistan’s allegations concerning Mr. Jadhav’s
unlawful activities to be unfounded.

                                       *
                                   *       *

   54. In its Judgment on the preliminary objections in the case concern-
ing Immunities and Criminal Proceedings (Equatorial Guinea v. France),
the Court ruled that “abuse of rights cannot be invoked as a ground of
inadmissibility when the establishment of the right in question is properly
a matter for the merits” (Preliminary Objections, Judgment, I.C.J. Reports
2018 (I), p. 337, para. 151).
   55. The Court notes, however, that by raising the argument that India
has not provided the Court with his “actual passport in his real name”,
Pakistan appears to suggest that India has failed to prove Mr. Jadhav’s
nationality. This argument is relevant to the claims based on Article 36 of
the Vienna Convention in relation to Mr. Jadhav, and therefore, must be
addressed at this stage.
   56. In this respect, the Court observes that the evidence before it shows
that both Parties have considered Mr. Jadhav to be an Indian national.
Indeed, Pakistan has so described Mr. Jadhav on various occasions,
including in its “Letter of Assistance for Criminal Investigation against
Indian National Kulbhushan Sudhair Jadhev”. Consequently, the Court
is satisﬁed that the evidence before it leaves no room for doubt that
Mr. Jadhav is of Indian nationality.

   57. As indicated above, the second and third arguments advanced by
Pakistan in support of its second objection to the admissibility of the
Application are based on various alleged breaches of India’s obligations
under Security Council resolution 1373 (2001). In particular, Pakistan
refers to India’s failure to respond to Pakistan’s request for mutual legal
assistance with its criminal investigations into Mr. Jadhav’s espionage
and terrorism activities, as well as the issuance of what Pakistan describes
as a “false cover name authentic passport”. The Court observes that, in

20

435                        jadhav (judgment)

essence, Pakistan seems to argue that India cannot request consular assis-
tance with respect to Mr. Jadhav, while at the same time it has violated
other obligations under international law as a result of the above-men-
tioned acts. While Pakistan has not clearly explained the link between
these allegations and the rights invoked by India on the merits, in the
Court’s view, such allegations are properly a matter for the merits and
therefore cannot be invoked as a ground of inadmissibility.

  58. For these reasons, the Court ﬁnds that Pakistan’s second objection
to the admissibility of India’s Application must be rejected. The second
and third arguments advanced by Pakistan will be addressed when deal-
ing with the merits (see paragraphs 121-124 below).

          C. Third Objection: India’s Alleged Unlawful Conduct
   59. In its third objection to the admissibility of India’s Application,
Pakistan asks the Court to dismiss the Application on the basis of India’s
alleged unlawful conduct. Relying on the doctrine of “clean hands” and
the principles of “ex turpi causa [non oritur actio]” and “ex injuria
jus non oritur”, Pakistan contends that India has failed to respond to its
request for assistance with the investigation into Mr. Jadhav’s activities,
that it has provided him with a “false cover name authentic passport”
and, more generally, that it is responsible for Mr. Jadhav’s espionage and
terrorism activities in Pakistan.
   60. India considers that Pakistan’s allegations lack merit and contends
that, in any event, a receiving State’s duty to comply with Article 36 of
the Vienna Convention is not conditional on its allegations against an
arrested individual.

                                    * *
   61. The Court does not consider that an objection based on the “clean
hands” doctrine may by itself render an application based on a valid title
of jurisdiction inadmissible. It recalls that in the case concerning Certain
Iranian Assets (Islamic Republic of Iran v. United States of America), it
ruled that “even if it were shown that the Applicant’s conduct was not
beyond reproach, this would not be suﬃcient per se to uphold the objec-
tion to admissibility raised by the Respondent on the basis of the
‘clean hands’ doctrine” (Preliminary Objections, Judgment, I.C.J. Reports
2019, p. 44, para. 122). The Court therefore concludes that Pakistan’s
objection based on the said doctrine must be rejected.

  62. The Court further notes that Pakistan has relied on the Judgment
of the Permanent Court of International Justice (hereinafter “PCIJ”) in
the Factory at Chorzów case in order to advance an argument based on a

21

436                         jadhav (judgment)

principle to which it refers as “ex turpi causa [non oritur actio]”. How-
ever, in that case the PCIJ referred to a principle
      “generally accepted in the jurisprudence of international arbitration,
      as well as by municipal courts, that one Party cannot avail himself of
      the fact that the other has not fulﬁlled some obligation . . . if the
      former Party has, by some illegal act, prevented the latter from ful-
      ﬁlling the obligation in question” (Jurisdiction, Judgment No. 8, 1927,
      P.C.I.J., Series A, No. 9, p. 31; see also Gabčíkovo-Nagymaros Project
      (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 67, para. 110).
  63. With regard to this principle, the Court is of the view that Pakistan
has not explained how any of the wrongful acts allegedly committed by
India may have prevented Pakistan from fulﬁlling its obligation in respect
of the provision of consular assistance to Mr. Jadhav. The Court there-
fore ﬁnds that Pakistan’s objection based on the principle of “ex turpi
causa non oritur actio” cannot be upheld.
  64. The above ﬁnding leads the Court to a similar conclusion with regard
to the principle of ex injuria jus non oritur, which stands for the proposition
that unlawful conduct cannot modify the law applicable in the relations
between the parties (see Gabčíkovo-Nagymaros Project (Hungary/Slova-
kia), Judgment, I.C.J. Reports 1997, p. 76, para. 133). In the view of the
Court, this principle is inapposite to the circumstances of the present case.
  65. Accordingly, the Court ﬁnds that Pakistan’s third objection to the
admissibility of India’s Application must be rejected.

                                        *
                                    *       *

   66. In light of the foregoing, the Court concludes that the three objec-
tions to the admissibility of the Application raised by Pakistan must be
rejected and that India’s Application is admissible.

        IV. The Alleged Violations of the Vienna Convention
                      on Consular Relations

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

          A. Applicability of Article 36 of the Vienna Convention
                           on Consular Relations
   68. The Court notes that Pakistan’s contentions regarding the applica-
bility of the Vienna Convention are threefold. First, Pakistan argues that

22

437                         jadhav (judgment)

Article 36 of the Vienna Convention does not apply in “prima facie cases
of espionage”. Secondly, it contends that customary international law
governs cases of espionage in consular relations and allows States to
make exceptions to the provisions on consular access contained in Arti-
cle 36 of the Vienna Convention. Thirdly, Pakistan maintains that it is the
2008 Agreement on Consular Access between India and Pakistan (herein-
after the “2008 Agreement”), rather than Article 36 of the Vienna Con-
vention, which regulates consular access in the present case. The Court
will examine each of these arguments in turn.

      1. Alleged exception to Article 36 of the Vienna Convention based
                           on charges of espionage
   69. Pakistan argues that the Vienna Convention does not apply in
cases of individuals “who manifest from their own conduct and the
materials in their possession a prima facie case of espionage activity”. In
its view, the travaux préparatoires of the Vienna Convention demonstrate
that cases of espionage were not considered to fall within the scope of
that instrument, and that matters of espionage and national security were
considered capable of constituting a “justiﬁable limitation” to a sending
State’s “freedom to communicate” with its arrested nationals in the
receiving State. Pakistan maintains that the drafters of the Vienna Con-
vention understood that there would be matters pertaining to consular
relations that would not be regulated by the Convention.
   70. India considers that Article 36 of the Vienna Convention does not
admit of any exceptions. In its view, the travaux préparatoires show that
no exception was made to the Convention with regard to cases of espio-
nage, even though the question of espionage was discussed during the
drafting process. According to India, the travaux préparatoires establish
that the Convention’s drafters considered espionage to be covered by the
principles governing consular access. India argues that if the reasoning
espoused by Pakistan were to be carried to its logical conclusion, a receiv-
ing State could justify the denial of the rights provided for by the Vienna
Convention by alleging acts of espionage.

                                    * *
   71. The Court notes that India is not a party to the 1969 Vienna Con-
vention on the Law of Treaties and that, while Pakistan signed that Con-
vention on 29 April 1970, it has not ratiﬁed it. The Court will interpret
the Vienna Convention on Consular Relations according to the custom-
ary rules of treaty interpretation which, as it has stated on many occa-
sions, are reﬂected in Articles 31 and 32 of the Vienna Convention on the
Law of Treaties (see, for example, Avena and Other Mexican Nationals
(Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I),
p. 48, para. 83; Certain Questions of Mutual Assistance in Criminal Mat-

23

438                          jadhav (judgment)

ters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 232, para. 153).
Under these rules of customary international law, the provisions of the
Vienna Convention on Consular Relations must be interpreted in good
faith in accordance with the ordinary meaning to be given to their terms
in their context and in the light of the object and purpose of the Conven-
tion. To conﬁrm the meaning resulting from that process, or to remove
ambiguity or obscurity, or to avoid a manifestly absurd or unreasonable
result, recourse may be had to supplementary means of interpretation,
which include the preparatory work of the Convention and the circum-
stances of its conclusion.
(a) Interpretation of Article 36 in accordance with the ordinary meaning
    of its terms
  72. Article 36 of the Vienna Convention on Consular Relations pro-
vides as follows:
                                      “Article 36
           Communication and contact with nationals of the sending State
         1. With a view to facilitating the exercise of consular functions
      relating 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
          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 con-
          verse and correspond with him and to arrange for his legal rep-
          resentation. 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 judgment. 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.

24

439                          jadhav (judgment)

         2. The rights referred to in paragraph 1 of this article shall be exer-
      cised in conformity with the laws and regulations of the receiving
      State, subject to the proviso, however, that the said laws and regula-
      tions must enable full eﬀect to be given to the purposes for which the
      rights accorded under this article are intended.”
   73. The Court observes that neither Article 36 nor any other provision
of the Vienna Convention contains a reference to cases of espionage. Nor
does Article 36 exclude from its scope, when read in its context and in
light of the object and purpose of the Convention, certain categories of
persons, such as those suspected of espionage.

  74. The object and purpose of the Vienna Convention as stated in its
preamble is to “contribute to the development of friendly relations among
nations”. The purpose of Article 36, paragraph 1, of the Convention as
indicated in its introductory sentence is to “facilitat[e] the exercise of con-
sular functions relating to nationals of the sending State”. Consequently,
consular oﬃcers may in all cases exercise the rights relating to consular
access set out in that provision for the nationals of the sending State. It
would run counter to the purpose of that provision if the rights it pro-
vides could be disregarded when the receiving State alleges that a foreign
national in its custody was involved in acts of espionage.

   75. The Court thus concludes that, when interpreted in accordance
with the ordinary meaning to be given to the terms of the Vienna Con-
vention in their context and in the light of its object and purpose, Arti-
cle 36 of the Convention does not exclude from its scope certain categories
of persons, such as those suspected of espionage.
(b) The travaux préparatoires of Article 36
   76. In view of the conclusion above, the Court need not, in principle,
resort to supplementary means of interpretation, such as the travaux
préparatoires of the Vienna Convention and the circumstances of its con-
clusion, to determine the meaning of Article 36 of the Convention. How-
ever, as in other cases (see, for example, Immunities and Criminal
Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judg-
ment, I.C.J. Reports 2018 (I), p. 322, para. 96; Sovereignty over Pulau
Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports
2002, p. 653, para. 53), the Court may have recourse to the travaux
préparatoires in order to conﬁrm its interpretation of Article 36 of the
Vienna Convention.
     (i) International Law Commission (1960)
   77. During the discussions of the International Law Commission on
the topic of “consular intercourse and immunities”, there was no sugges-
tion that Article 36 would not apply to certain categories of persons, such
as those suspected of espionage.

25

440                          jadhav (judgment)

   78. Draft Article 30 A, which served as a basis for Article 36 of the
Convention, was discussed by the Commission in 1960. It provided, in the
relevant part, that “[t]he local authorities shall inform the consul of the
sending State without delay when any national of that State is detained in
custody within his district” (Yearbook of the International Law Commis-
sion, 1960, Vol. I, p. 42, para. 1). Among the issues discussed in relation
to this provision was the question whether and to what extent it was con-
ceivable for consular notiﬁcation to be made “without delay” in countries
which had a system of detention incommunicado, whereby the person
might be held isolated from the outside world for a certain period at the
beginning of a criminal investigation.
   79. It was in the context of this debate regarding the phrase “without
delay” that Mr. Tunkin, a member of the Commission, referred to “espio-
nage cases” :
         “Mr. TUNKIN felt it might be best to delete the words ‘without
      delay’. There were cases in which it was impossible to inform the
      consul immediately of the arrest or detention of a national. Some-
      times — for instance in espionage cases, where there might be accom-
      plices at large — it might be desirable that the local authorities should
      not be obliged to inform the consul.” (Ibid., p. 58, para. 47.)
   80. With regard to cases of espionage, the Chairman of the Commis-
sion made the following remark :
         “The CHAIRMAN remarked that a statement of a general princi-
      ple of law could not possibly cover all conceivable cases. If the Com-
      mission went into the question of whether cases of espionage should
      be made an exception the whole principle of consular protection and
      communication with nationals would have to be re-opened.” (Ibid.,
      p. 58, para. 48.)
   81. The Court notes that the Commission did not go into the question
of espionage at its subsequent meetings and that the “principle of
consular protection and communication with nationals” was not
reopened.
   82. The Court further notes that cases of espionage were also men-
tioned in the context of the Commission’s discussions on the possible
inclusion of a reference to security zones in the proposed provision. How-
ever, there was no suggestion of consular access not being granted in
cases of espionage because of national security concerns.

   83. During its 1961 session, the Commission decided to change the
words “without delay” to “without undue delay” (Yearbook of the Inter-
national Law Commission, 1961, Vol. I, pp. 242-245). The Court observes
that this decision had no implication for the scope of draft Article 36. The
Commission’s commentary to draft Article 36, paragraph 1 (b), merely
states that “[t]he expression ‘without undue delay’ used in paragraph 1 (b)
allows for cases where it is necessary to hold a person incommunicado for

26

441                          jadhav (judgment)

a certain period for the purposes of the criminal investigation” (Official
Records of the United Nations Conference on Consular Relations, Vienna,
4 March-22 April 1963 (United Nations, doc. A/CONF.25/16/Add.1),
Vol. II, p. 24, para. 6).

     (ii) The Vienna Conference (1963)
   84. During the United Nations Conference on Consular Relations held
in Vienna from 4 March to 22 April 1963, the question of espionage
was raised in relation to the words “without undue delay” in draft Arti-
cle 36:
         “The CHAIRMAN invited Mr. Zourek [the former Special Rap-
       porteur of the International Law Commission on this topic] to explain
       why the International Law Commission had included the words
       ‘without undue delay’ in its draft . . .
         Mr. ZOUREK (Expert) said that . . . [t]hey were intended to allow
       for cases in which the receiving State’s police might wish to held [sic]
       a criminal in custody for a time. For example, if a smuggler was sus-
       pected of controlling a network, the police might wish to keep his
       arrest secret until they had been able to ﬁnd his contacts. Similar
       measures might be adopted in case of espionage.” (Ibid., Vol. I, p. 338,
       paras. 8-9.)

   85. The explanation given by Mr. Zourek suggests that while the
charge of espionage was thought to be relevant in determining the appro-
priate period of time within which notiﬁcation to the sending State should
be made by the receiving State, cases of espionage were not excluded
from the scope of the Vienna Convention. The Court further notes that in
the course of the discussion on proposed amendments to draft Article 36,
including a proposal by the United Kingdom to delete the word “undue”
from the phrase “without undue delay” which was eventually adopted
(ibid., Vol. I, p. 348), it was not suggested that certain categories of per-
sons, such as those suspected of espionage, were to be excluded from the
protection of the Convention.

                                       *
   86. The travaux préparatoires thus conﬁrm the interpretation that Arti-
cle 36 does not exclude from its scope certain categories of persons, such
as those suspected of espionage.

               2. Alleged espionage exception under customary
                               international law
  87. According to Pakistan, State practice establishes that at the time of
the adoption of the Vienna Convention in 1963, there was no rule of cus-

27

442                        jadhav (judgment)

tomary international law which made consular access obligatory in the
case of individuals accused of espionage. Pakistan argues that there was a
rule of customary international law in 1963 that prima facie cases of
espionage constituted an exception to the right of consular access. It cites
the preamble of the Vienna Convention, which aﬃrms that “the rules of
customary international law continue to govern matters not expressly
regulated by the provisions of the present Convention”, in support of
its conclusion that the rule of customary international law was unaﬀected
by the Convention and continues to prevail over it.

   88. India maintains that the instances referred to by Pakistan, wherein
States have denied consular access to individuals suspected of espionage
or have granted them access after a considerable delay, cannot aﬀect the
interpretation of Article 36 of the Vienna Convention. In its view,
these instances are “random examples” and do not constitute an
established practice. According to India, Pakistan is wrong to suggest
that customary international law prevails over the plain language of
Article 36 of the Convention and that an exclusion is created for allega-
tions of espionage.

                                    * *
   89. The Court notes that the preamble of the Vienna Convention states
that “the rules of customary international law continue to govern matters
not expressly regulated by the provisions of the present Convention”
(emphasis added). Article 36 of the Convention expressly regulates the
question of consular access to, and communication with, nationals of the
sending State and makes no exception with regard to cases of espionage.
The Court recalls that India and Pakistan have been parties to the Vienna
Convention since 1977 and 1969 respectively (see paragraph 33 above)
and that neither Party attached any reservation or declaration to the pro-
visions of the Convention. The Court therefore considers that Article 36
of the Convention, and not customary international law, governs the
matter at hand in the relations between the Parties.

  90. Having reached this conclusion, the Court does not ﬁnd it neces-
sary to determine whether, when the Vienna Convention was adopted in
1963, there existed the rule of customary international law that Pakistan
advances.

 3. Relevance of the 2008 Agreement on Consular Access between India
                            and Pakistan
  91. The 2008 Agreement provides, in its relevant parts, as follows:
                         “Agreement on Consular Access

28

443                           jadhav (judgment)

         The Government of India and the Government of Pakistan, desir-
      ous of furthering the objective of humane treatment of nationals of
      either country arrested, detained or imprisoned in the other country,
      have agreed to reciprocal consular facilities as follows:

       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
       (ii) Immediate notiﬁcation of any arrest, detention or imprisonment
            of any person of the other country shall be provided to the respec-
            tive High Commission.
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
      (iv) Each Government shall provide consular access within three
            months to nationals of one country under arrest, detention or
            imprisonment in the other country.

       (v) Both Governments agree to release and repatriate persons within
           one month of conﬁrmation of their national status and comple-
           tion of sentences.
      (vi) In case of arrest, detention or sentence made on political or secu-
           rity grounds, each side may examine the case on its merits.”

                                        *
   92. Pakistan maintains that it is the 2008 Agreement rather than the
Vienna Convention on Consular Relations that governs the question of
consular access between India and Pakistan, including in the present case.
In Pakistan’s view, the nature and circumstances of Mr. Jadhav’s alleged
espionage and terrorist activities bring his arrest squarely within the
national security qualiﬁcation contained in point (vi) of the Agreement.
Pakistan thus argues that it was entitled to consider the question of con-
sular access to Mr. Jadhav “on its merits” in the particular circumstances
of this case. It disputes the interpretation put forward by India, according
to which point (vi) should be read in conjunction with point (v) concern-
ing the early release and repatriation of persons (see paragraph 93 below).
In Pakistan’s view, point (vi) of the 2008 Agreement is fully consistent
with Article 73 of the Vienna Convention on Consular Relations and
with Article 41 of the Vienna Convention on the Law of Treaties, because
the 2008 Agreement can properly be seen as “supplementing” or “ampli-
fying” the provisions of the Vienna Convention on Consular Relations.

   93. India emphasizes that its claims are based solely on the Vienna
Convention and maintains that the existence of a bilateral agreement is
irrelevant to the assertion of the right to consular access under the Con-
vention. It contends that bilateral treaties cannot modify the rights and

29

444                        jadhav (judgment)

corresponding obligations which are set out in Article 36 of the Conven-
tion. India argues that there is nothing in the language of the 2008 Agree-
ment which would suggest that India or Pakistan ever intended to
derogate from Article 36 of the Vienna Convention. India maintains that
Pakistan’s interpretation would be contrary to Article 73 of the Vienna
Convention. As for point (vi) of the 2008 Agreement, India takes the view
that the phrase “examine the case on its merits” applies to the agreement
to release and repatriate persons within one month of the conﬁrmation of
their national status and completion of sentences as provided for in
point (v), and that, as an exception to this, India and Pakistan reserve the
right to examine on the merits the case for the release and repatriation of
persons upon the completion of their sentences when their arrest, deten-
tion or sentence was made on political or security grounds.

                                    * *
   94. The Court recalls that point (vi) of the 2008 Agreement provides
that “[i]n case of arrest, detention or sentence made on political or secu-
rity grounds, each side may examine the case on its merits”. It also recalls
that, in the preamble of the Agreement, the Parties declared that they
were “desirous of furthering the objective of humane treatment of nation-
als of either country arrested, detained or imprisoned in the other coun-
try”. The Court is of the view that point (vi) of the Agreement cannot be
read as denying consular access in the case of an arrest, detention or sen-
tence made on political or security grounds. Given the importance of the
rights concerned in guaranteeing the “humane treatment of nationals of
either country arrested, detained or imprisoned in the other country”, if
the Parties had intended to restrict in some way the rights guaranteed by
Article 36, one would expect such an intention to be unequivocally
reﬂected in the provisions of the Agreement. That is not the case.

   95. Moreover, as noted in paragraph 74 above, with reference to the
alleged exception of espionage in the Vienna Convention, any derogation
from Article 36 of the Vienna Convention for political or security grounds
may render the right related to consular access meaningless as it would
give the receiving State the possibility of denying such access.

  96. Account should also be taken of Article 73, paragraph 2, of the
Vienna Convention for the purpose of interpreting the 2008 Agreement.
This paragraph 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
language of this paragraph indicates that it refers to subsequent agree-

30

445                        jadhav (judgment)

ments to be concluded by parties to the Vienna Convention. The Court
notes that the Vienna Convention was drafted with a view to establishing,
to the extent possible, uniform standards for consular relations. The ordi-
nary meaning of Article 73, paragraph 2, suggests that it is consistent
with the Vienna Convention to conclude only subsequent agreements
which conﬁrm, supplement, extend or amplify the provisions of that
instrument, such as agreements which regulate matters not covered by the
Convention.
  97. The Parties have negotiated the 2008 Agreement in full awareness
of Article 73, paragraph 2, of the Vienna Convention. Having examined
that Agreement and in light of the conditions set out in Article 73, para-
graph 2, the Court is of the view that the 2008 Agreement is a subsequent
agreement intended to “conﬁrm, supplement, extend or amplify” the
Vienna Convention. Consequently, the Court considers that point (vi) of
that Agreement does not, as Pakistan contends, displace the obligations
under Article 36 of the Vienna Convention.

                                      *
                                  *       *

  98. For these reasons, the Court ﬁnds that none of the arguments
raised by Pakistan concerning the applicability of Article 36 of the Vienna
Convention to the case of Mr. Jadhav can be upheld. The Court thus
concludes that the Vienna Convention is applicable in the present case,
regardless of the allegations that Mr. Jadhav was engaged in espionage
activities.

      B. Alleged Violations of Article 36 of the Vienna Convention
                         on Consular Relations
   99. Having concluded that the Vienna Convention is applicable in the
present case, the Court will examine the alleged violations by Pakistan of
its obligations under Article 36 thereof. India contends in its ﬁnal submis-
sions that Pakistan acted in breach of its obligations under Article 36 of
the Vienna Convention (i) by not informing India, without delay, of the
detention of Mr. Jadhav; (ii) by not informing Mr. Jadhav of his rights
under Article 36; and (iii) by denying consular oﬃcers of India access to
Mr. Jadhav, contrary to their right to visit him, to converse and corre-
spond with him, and to arrange for his legal representation. The Court
will consider the alleged violations in chronological order.

  1. Alleged failure to inform Mr. Jadhav of his rights under Article 36,
                              paragraph 1 (b)
 100. India states that it is not known whether Pakistan informed
Mr. Jadhav of his rights under Article 36, paragraph 1 (b). Nonetheless,

31

446                          jadhav (judgment)

the Applicant contends that the conduct of Pakistan, which at one point
suggested in public statements that the detainee was not entitled to con-
sular access, strongly indicates that it did not inform Mr. Jadhav of his
right to communicate with the Indian consular post.
   101. Pakistan has not asserted that it informed Mr. Jadhav of his
rights under Article 36, paragraph 1 (b).

                                      * *
   102. Article 36, paragraph 1 (b), of the Vienna Convention provides
that the competent authorities of the receiving State must inform a for-
eign national in detention of his rights under that provision. The Court
therefore needs to determine whether the competent Pakistani authorities
informed Mr. Jadhav of his rights in accordance with this provision. In
this respect, the Court observes that Pakistan has not contested India’s
contention that Mr. Jadhav was not informed of his rights under Arti-
cle 36, paragraph 1 (b), of the Convention. To the contrary, in the writ-
ten and oral proceedings, Pakistan consistently maintained that the
Convention does not apply to an individual suspected of espionage. The
Court infers from this position of Pakistan that it did not inform Mr. Jad-
hav of his rights under Article 36, paragraph 1 (b), of the Vienna Con-
vention, and thus concludes that Pakistan breached its obligation to
inform Mr. Jadhav of his rights under that provision.

      2. Alleged failure to inform India, without delay, of the arrest and
                            detention of Mr. Jadhav
   103. India states that Mr. Jadhav was arrested on 3 March 2016 and
that it was informed of his arrest only when the Foreign Secretary of
Pakistan raised the matter with the Indian High Commissioner in
Islamabad on 25 March 2016. It maintains that Pakistan has oﬀered no
explanation as to why it took over three weeks to inform the Indian
High Commissioner of Mr. Jadhav’s arrest. According to the Applicant,
Pakistan acknowledged as early as 30 March 2016 that India had
requested consular access on 25 March 2016. The Applicant contends
that Pakistan had no diﬃculty at that time in recognizing that the request
related to Mr. Jadhav and that for that reason Pakistan did not seek
clariﬁcation as to the identity of the individual concerned.

   104. Pakistan conﬁrms that Mr. Jadhav was arrested on 3 March 2016
and that it informed the Indian High Commissioner of the arrest on
25 March 2016. Nor does Pakistan contest that on 25 March 2016 the
Indian High Commission in Islamabad sent a Note Verbale to the Minis-
try of Foreign Aﬀairs of Pakistan referring to “the purported arrest of an
Indian in Baluchistan” and requesting consular access to that individual.
It stresses, however, that India did not identify the individual by name

32

447                         jadhav (judgment)

and maintains that it was not until 10 June 2016 that India actually iden-
tiﬁed the individual in question as Mr. Jadhav.
   105. Citing the Judgment in the case concerning Avena and Other Mex-
ican Nationals (Mexico v. United States of America), in which the Court
stated that “‘without delay’ is not necessarily to be interpreted as ‘imme-
diately’ upon arrest” (I.C.J. Reports 2004 (I), p. 49, para. 87), Pakistan
contends that immediate consular access is not required by Article 36,
paragraph 1 (b), of the Vienna Convention. In the Respondent’s view,
Article 36, paragraph 2, of the Vienna Convention makes it clear that the
rights under Article 36, paragraph 1 (a) to (c), must be exercised in a
manner that is in accordance with the domestic law of the receiving State.
Pakistan argues that the principle of non-interference in the domestic
aﬀairs of a sovereign State applies to the rights set out in the Vienna Con-
vention.

                                     * *
   106. Article 36, paragraph 1 (b), of the Vienna Convention provides
that if a national of the sending State is arrested or detained, and “if he
so requests”, the competent authorities of the receiving State must, “with-
out delay”, inform the consular post of the sending State. To examine
India’s claim that Pakistan breached its obligation under this provision,
the Court will consider, ﬁrst, whether Mr. Jadhav made such a request
and, secondly, whether Pakistan informed India’s consular post of the
arrest and detention of Mr. Jadhav. Finally, if the Court ﬁnds that notiﬁ-
cation was provided by Pakistan, it will examine whether it was made
“without delay”.
   107. Interpreting Article 36, paragraph 1 (b), in accordance with the
ordinary meaning of the terms used, the Court notes that there is an
inherent connection between the obligation of the receiving State to
inform a detained person of his rights under Article 36, paragraph 1 (b),
and his ability to request that the consular post of the sending State be
informed of his detention. Unless the receiving State has fulﬁlled its obli-
gation to inform a detained person of his rights under Article 36, para-
graph 1 (b), he may not be aware of his rights and consequently may not
be in a position to make a request that the competent authorities of the
receiving State inform the sending State’s consular post of his arrest.
   108. The travaux préparatoires conﬁrm the connection between the obli-
gation of the receiving State to inform a detained person of his rights and his
ability to request that the consular post of the sending State be informed of
his detention. The original text of Article 36, paragraph 1 (b), prepared by
the International Law Commission, did not contain wording equivalent to
“if he so requests” (Official Records of the United Nations Conference on
Consular Relations, Vienna, 4 March-22 April 1963 (United Nations, doc. A/
CONF.25/16/Add.1), Vol. II, p. 24). This phrase was added at the Vienna
Conference in 1963. The United Kingdom expressed concern about “abuses

33

448                        jadhav (judgment)

and misunderstanding” which could be caused by the addition of this new
phrase, which, in its view, “could well make the provisions of [A]rticle 36
ineﬀective because the person arrested might not be aware of his rights”
(United Nations, doc. A/CONF.25/16/Add.1, Vol. I, pp. 83-84, para. 73).
For these reasons, the United Kingdom considered it essential to introduce
the following new sentence at the end of subparagraph (b): “The said
authorities shall inform the person concerned without delay of his rights
under this subparagraph.” (Ibid., Vol. II, p. 171.) The proposal to add the
phrase “if he so requests” was adopted together with that of the United King-
dom to add the new sentence (ibid., Vol. I, pp. 86-87, paras. 108-112).
   109. Article 36, paragraph 1 (b), of the Convention provides that if a
detained person “so requests”, the competent authorities of the receiving
State must inform the consular post of the sending State. In light of what
is set out in paragraphs 107 and 108 above, the phrase “if he so requests”
must be read in conjunction with the obligation of the receiving State to
inform the detained person of his rights under Article 36, paragraph 1 (b).
The Court has already found that Pakistan failed to inform Mr. Jadhav
of his rights (see paragraph 102 above). Consequently, the Court is of the
view that Pakistan was under an obligation to inform India’s consular
post of the arrest and detention of Mr. Jadhav in accordance with Arti-
cle 36, paragraph 1 (b), of the Convention.

   110. Moreover, the Court observes that, when a national of the send-
ing State is in prison, custody or detention, an obligation of the authori-
ties of the receiving State to inform the consular post of the sending State
is implied by the rights of the consular oﬃcers under Article 36, para-
graph 1 (c), to visit the national, “to converse and correspond with him
and to arrange for his legal representation”.

   111. The Court now proceeds to the second question, that of whether
Pakistan informed India of the arrest and detention of Mr. Jadhav. On
25 March 2016, the Foreign Secretary of Pakistan summoned the Indian
High Commissioner in Islamabad to raise the matter of the arrest and
issued a démarche protesting the illegal entry into Pakistan of “a RAW
oﬃcer” (see paragraph 22 above). The Court observes that Article 36,
paragraph 1 (b), does not specify the manner in which the receiving State
should inform the consular post of the sending State of the detention of
one of its nationals. What is important is that the information contained
in the notiﬁcation is suﬃcient to facilitate the exercise by the sending
State of the consular rights envisaged by Article 36, paragraph 1, of the
Vienna Convention. Pakistan’s action on 25 March 2016 enabled India to
make a request for consular access on the same day (see paragraph 103
above). Under the circumstances, the Court considers that Pakistan noti-
ﬁed India on 25 March 2016 of the arrest and detention of Mr. Jadhav,
as required by Article 36, paragraph 1 (b), of the Vienna Convention.

34

449                        jadhav (judgment)

   112. The Court now turns to the ﬁnal question, that of whether the
notiﬁcation was given “without delay”. Pakistan claims that at the time
of his arrest on 3 March 2016, Mr. Jadhav was in possession of an Indian
passport bearing the name “Hussein Mubarak Patel”. In the circum-
stances of the present case, the Court considers that there were suﬃcient
grounds at the time of the arrest on 3 March 2016 or shortly thereafter
for Pakistan to conclude that the person was, or was likely to be, an
Indian national, thus triggering its obligation to inform India of his arrest
in accordance with Article 36, paragraph 1 (b), of the Vienna Conven-
tion (see Avena and Other Mexican Nationals (Mexico v. United States of
America), Judgment, I.C.J. Reports 2004 (I), p. 43, para. 63).
   113. There was a delay of some three weeks between Mr. Jadhav’s
arrest on 3 March 2016 and the notiﬁcation made to India on 25 March
2016. The Court recalls that “neither the terms of the [Vienna] Conven-
tion as normally understood, 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). It also recalls that “there is no suggestion in the travaux that
the phrase ‘without delay’ might have diﬀerent meanings in each of the
three sets of circumstances in which it is used in Article 36, para-
graph 1 (b)” (ibid., p. 49, para. 86). In the Avena case, the Court’s deter-
mination whether notiﬁcation had been given “without delay” was made
on the basis of each individual’s circumstances. It found that there had
been a violation of the obligation to inform under Article 36, para-
graph 1 (b), with regard to a delay of just 40 hours when the foreign
nationality of the detained person was apparent from the outset of his
detention (ibid., p. 50, para. 89). However, the Court found no violation
in respect of a delay of ﬁve days when the foreign nationality was less
obvious at the time of arrest (ibid., p. 52, para. 97). Taking account of the
particular circumstances of the present case, the Court considers that the
fact that the notiﬁcation was made some three weeks after the arrest in
this case constitutes a breach of the obligation to inform “without delay”,
as required by Article 36, paragraph 1 (b), of the Vienna Convention.

               3. Alleged failure to provide consular access

   114. India notes that Pakistan stated in its Note Verbale of 21 March
2017 that India’s request for consular access would be considered “in the
light of India’s response to Pakistan’s request for assistance in the inves-
tigation process”. The Applicant argues that by denying its request for
consular access despite repeated reminders, Pakistan has violated, and
continues to violate, its obligations under Article 36 of the Vienna Con-
vention. India maintains that the obligations of the receiving State under
Article 36 of the Convention are not conditional on the sending State

35

450                        jadhav (judgment)

complying with requests for co-operation in the investigation of crimes,
and argues that Article 36 provides for no exception and thus creates
obligations that are absolute in nature.

   115. Pakistan maintains that the sending State’s consular function of
defending the interests of its nationals in the receiving State must be exer-
cised in a manner that is in conformity with the laws of the receiving
State. In relation to the alleged violation of Article 36, paragraph 1 (c),
it argues that Mr. Jadhav was allowed to choose a lawyer for himself, but
that he opted to be represented by an in-house defending oﬃcer qualiﬁed
for legal representation.

                                    * *
  116. Article 36, paragraph 1 (a), of the Vienna Convention provides
that
      “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 communication
      with and access to consular oﬃcers of the sending State”.

Paragraph 1 (c) provides, inter alia, that “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”. The Court recalls that
“Article 36, paragraph 1, creates individual rights, which, by virtue of
Article I of the Optional Protocol, may be invoked in this Court by the
national State of the detained person” (LaGrand (Germany v. United States
of America), Judgment, I.C.J. Reports 2001, p. 494, para. 77).

   117. In the present case, it is undisputed that Pakistan has not granted
any Indian consular oﬃcer access to Mr. Jadhav. India has made a num-
ber of requests for consular access since 25 March 2016 (see paragraphs 22
and 23 above). Pakistan responded to India’s request for consular access
for the ﬁrst time in its Note Verbale dated 21 March 2017, in which it
stated that “the case for the consular access to the Indian national, Kul-
bushan Jadhev shall be considered, in the light of Indian side’s response
to Pakistan’s request for assistance in investigation process and early dis-
pensation of justice” (see paragraph 28 above). The Court is of the view
that the alleged failure by India to co-operate in the investigation process
in Pakistan does not relieve Pakistan of its obligation to grant consular
access under Article 36, paragraph 1, of the Convention, and does not
justify Pakistan’s denial of access to Mr. Jadhav by consular oﬃcers of
India.

36

451                        jadhav (judgment)

   118. Article 36, paragraph 1 (c), provides that consular oﬃcers have
the right to arrange legal representation for a detained national of the
sending State. The provision presupposes that consular oﬃcers can
arrange legal representation based on conversation and correspondence
with the detained person. In the view of the Court, Pakistan’s contention
that Mr. Jadhav was allowed to choose a lawyer for himself, but that he
opted to be represented by a defending oﬃcer qualiﬁed for legal represen-
tation, even if it is established, does not dispense with the consular oﬃ-
cers’ right to arrange for his legal representation.

  119. The Court therefore concludes that Pakistan has breached the
obligations incumbent on it under Article 36, paragraph 1 (a) and (c), of
the Vienna Convention, by denying consular oﬃcers of India access to
Mr. Jadhav, contrary to their right to visit him, to converse and corre-
spond with him, and to arrange for his legal representation.

                                    *
   120. Having concluded that Pakistan acted in breach of its obligations
under Article 36, paragraph 1 (a), (b) and (c), of the Vienna Conven-
tion, the Court will now examine Pakistan’s contentions based on abuse
of rights.

                           C. Abuse of Rights
   121. In light of the above, the Court will determine whether India’s
alleged violations of international law invoked by Pakistan in support of
its contentions based on abuse of rights may constitute a defence on the
merits (see paragraphs 57 and 58 above).

   122. The Parties’ arguments regarding such allegations have already
been set out above (see paragraphs 51-53 above). In essence, Pakistan
argues that India cannot request consular assistance with respect to
Mr. Jadhav, while at the same time it has failed to comply with other
obligations under international law.
   123. In this respect, the Court recalls that the Vienna Convention “lays
down certain standards to be observed by all States parties, with a view
to the ‘unimpeded conduct of consular relations’”, and that Article 36 on
consular assistance to and communication with nationals undergoing
criminal proceedings sets forth rights both for the State and the individ-
ual which are interdependent (Avena and Other Mexican Nationals (Mex-
ico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 36,
para. 40 and p. 38, para. 47, citing respectively LaGrand (Germany v.
United States of America), Judgment, I.C.J. Reports 2001, p. 494,

37

452                        jadhav (judgment)

para. 77 ; and United States Diplomatic and Consular Staff in Tehran
(United States of America v. Iran), Provisional Measures, Order of
15 December 1979, I.C.J. Reports 1979, pp. 19-20, para. 40). In
the Court’s view, there is no basis under the Vienna Convention for a
State to condition the fulﬁlment of its obligations under Article 36 on the
other State’s compliance with other international law obligations. Other-
wise, the whole system of consular assistance would be severely under-
mined.

   124. For these reasons, the Court concludes that none of Pakistan’s
allegations relating to abuse of rights by India justiﬁes breaches by
Pakistan of its obligations under Article 36 of the Vienna Convention.
Pakistan’s arguments in this respect must therefore be rejected.

                               V. Remedies

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

   126. India argues that, in order to fashion an appropriate remedy that
would meet the high standards of international human rights law, “of
which Article 36 is . . . a signiﬁcant element”, the Court should take into
account the nature and extent of the violations, the degree of injury suf-
fered, and the extent to which the trial did not follow the norms of due
process. It maintains that where the breach of Article 36 of the Vienna
Convention has resulted in the violation of the right under Article 14 of

38

453                        jadhav (judgment)

the Covenant, the principles of State responsibility must recognize the
“synergy” between Article 14 and Article 36 and must therefore address
the serious consequences of the breach of Article 36 which results in the
violation of the right under Article 14 of the Covenant.
   127. India seeks to distinguish the present case from the LaGrand and
Avena cases, in which, according to India, the Court granted only review
and reconsideration of the conviction and sentence, because it accepted
the assertion of the United States that its criminal justice system was fully
compliant with due process. India argues that Pakistan’s criminal justice
system by way of trial in the military courts does not satisfy the minimum
standards of due process in its application to civilians. It contends that
“relief by way of review and reconsideration” is “highly inadequate” as a
remedy in the case of Mr. Jadhav. Referring to a judgment rendered by
the Pakistan Supreme Court in 2016 in Said Zaman Khan et al. v. Federa-
tion of Pakistan (see paragraph 141 below), it contends that the remit of
judicial review in Pakistan is narrow, because convictions by the military
courts “can only be assailed on the ground of coram non judice, absence
of jurisdiction, mala fide and malice in law”. While acknowledging that a
judgment rendered by the Peshawar High Court in 2018 appears to have
taken “a broader view”, India stresses that the Government of Pakistan
has ﬁled an appeal against that judgment and that the Supreme Court has
suspended the operation of the judgment pending the appeal.

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

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

  130. Pakistan maintains that the appropriate remedy in this case would
be, at most, eﬀective review and reconsideration of the conviction and

39

454                         jadhav (judgment)

sentence of the accused, taking into account the potential eﬀects of any
violation of Article 36 of the Vienna Convention. It refers to the decision
rendered by the Peshawar High Court in 2018, which set aside more than
70 convictions and sentences handed down by military courts. It contends
that its domestic legal system provides for an established and deﬁned pro-
cess whereby the civil courts can undertake a substantive review of the
decisions of military tribunals, in order to ensure procedural fairness has
been aﬀorded to the accused, and that its courts are well suited to carry-
ing out a review and reconsideration that gives full weight to the eﬀect of
any violation of Article 36 of the Vienna Convention.

   131. Pakistan further notes that clemency procedures can act as
an appropriate supplement to judicial procedures for review and recon-
sideration, and points out that, at all material times, both judicial
review and clemency procedures have been available to Mr. Jadhav and
his family.
   132. Pakistan adds that the conduct of India and Mr. Jadhav must be
taken into account in any consideration of relief the Court undertakes,
including whether the conduct is of such grave illegality that it militates
against the granting of any relief at all.

                                     * *
  133. The Court has already found that Pakistan acted in breach of its
obligations under Article 36 of the Vienna Convention,
  (i) by not informing Mr. Jadhav of his rights under Article 36, para-
      graph 1 (b);
 (ii) by not informing India, without delay, of the arrest and detention of
      Mr. Jadhav; and
(iii) by denying access to Mr. Jadhav by consular oﬃcers of India, con-
      trary to their right, inter alia, to arrange for his legal representation
      (see paragraphs 99-119 above).

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

  135. With regard to India’s submission that the Court declare that the
sentence handed down by Pakistan’s military court is violative of interna-

40

455                         jadhav (judgment)

tional law and the provisions of the Vienna Convention, the Court recalls
that its jurisdiction has its basis in Article I of the Optional Protocol. This
jurisdiction is limited to the interpretation or application of the Vienna
Convention and does not extend to India’s claims based on any other
rules of international law (see paragraph 36 above). India refers to Arti-
cle 14 of the International Covenant on Civil and Political Rights to sup-
port its requests for remedies. In accordance with the rule reﬂected in
Article 31, paragraph 3 (c), of the Vienna Convention on the Law of
Treaties, the Covenant may be taken into account, together with the con-
text, for the interpretation of the Vienna Convention on Consular Rela-
tions. The Court notes, however, that the remedy to be ordered in this
case has the purpose of providing reparation only for the injury caused by
the internationally wrongful act of Pakistan that falls within the Court’s
jurisdiction, namely its breach of obligations under Article 36 of the
Vienna Convention on Consular Relations, and not of the Covenant.

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

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

  138. The Court reaﬃrms that “it is a principle of international law . . .
that any breach of an engagement involves an obligation to make repara-

41

456                        jadhav (judgment)

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

  139. The Court considers that a special emphasis must be placed on
the need for the review and reconsideration to be eﬀective. The review
and reconsideration of the conviction and sentence of Mr. Jadhav, in
order to be eﬀective, must ensure that full weight is given to the eﬀect of
the violation of the rights set forth in Article 36, paragraph 1, of the Con-
vention and guarantee that the violation and the possible prejudice caused
by the violation are fully examined. It presupposes the existence of a pro-
cedure which is suitable for this purpose. The Court observes that it is
normally the judicial process which is suited to the task of review and
reconsideration (see Avena and Other Mexican Nationals (Mexico v.
United States of America), Judgment, I.C.J. Reports 2004 (I), pp. 65-66,
paras. 138-140).
  140. In the present case, the death sentence imposed on Mr. Jadhav by
the Field General Court Martial of Pakistan was conﬁrmed by the Chief
of Army Staﬀ on 10 April 2017. The evidence suggests that Mr. Jadhav
appealed to the Military Appellate Court under Section 133 (B) of the
Pakistan Army Act of 1952, but that the appeal was rejected. With regard
to the petition procedure, the evidence suggests that Mr. Jadhav has made
a mercy petition to the Chief of Army Staﬀ, and that the mother of
Mr. Jadhav has sought to ﬁle a petition with the Federal Government of
Pakistan under Section 131 and an appeal under Section 133 (B) of the
Act. There is no evidence before the Court to indicate the outcome of
those petitions or that appeal.

   141. The Court notes that, according to Pakistan, the High Courts of
Pakistan can exercise review jurisdiction. The Court observes, however,
that Article 199, paragraph 3, of the Constitution of Pakistan has been
interpreted by the Supreme Court of Pakistan as limiting the availability
of such review for a person who is subject to any law relating to the

42

457                         jadhav (judgment)

Armed Forces of Pakistan, including the Pakistan Army Act of 1952. The
Supreme Court has stated that the High Courts and the Supreme Court
may exercise judicial review over a decision of the Field General Court
Martial on “the grounds of coram non judice, without jurisdiction or suf-
fering from mala fides, including malice in law only” (Said Zaman Khan
et al. v. Federation of Pakistan, Supreme Court of Pakistan, Civil Petition
No. 842 of 2016, 29 August 2016, para. 73). Article 8, paragraph 1, of the
Constitution provides that any law which is inconsistent with fundamen-
tal rights guaranteed under the Constitution is void, but this provision
does not apply to the Pakistan Army Act of 1952 by virtue of a constitu-
tional amendment (ibid., para. 125). Thus, it is not clear whether judicial
review of a decision of a military court is available on the ground that
there has been a violation of the rights set forth in Article 36, paragraph 1,
of the Vienna Convention.

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

   143. The Court conﬁrms that the clemency process is not suﬃcient in
itself to serve as an appropriate means of review and reconsideration but
that
      “appropriate clemency procedures can supplement judicial review
      and reconsideration, in particular where the judicial system has failed
      to take due account of the violation of the rights set forth in the
      Vienna Convention” (Avena and Other Mexican Nationals (Mexico v.
      United States of America), Judgment, I.C.J. Reports 2004 (I), p. 66,
      para. 143).
The evidence before the Court suggests that two clemency procedures are
available to Mr. Jadhav: a mercy petition to the Chief of Army Staﬀ
within 60 days of the decision by the Appellate Court and a mercy peti-
tion to the President of Pakistan within 90 days of the decision of the
Chief of Army Staﬀ on the mercy petition (see paragraph 29 above). The
outcome of the petition submitted by Mr. Jadhav to the Chief of Army
Staﬀ (see paragraph 140 above) has not, however, been made known to
the Court. No evidence has been submitted to the Court regarding the
presidential clemency procedure.

43

458                         jadhav (judgment)

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

   146. The Court notes that the obligation to provide eﬀective review and
reconsideration can be carried out in various ways. The choice of means is
left to Pakistan (cf. LaGrand (Germany v. United States of America),
Judgment, I.C.J. Reports 2001, p. 514, para. 125). Nevertheless, freedom in
the choice of means is not without qualiﬁcation (Avena and Other Mexican
Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports
2004 (I), p. 62, para. 131). The obligation to provide eﬀective review and
reconsideration is “an obligation of result” which “must be performed
unconditionally” (Request for Interpretation of the Judgment of 31 March
2004 in the Case concerning Avena and Other Mexican Nationals (Mex-
ico v. United States of America) (Mexico v. United States of America),
Judgment, I.C.J. Reports 2009, p. 17, para. 44). Consequently, Pakistan
shall take all measures to provide for eﬀective review and reconsideration,
including, if necessary, by enacting appropriate legislation.
   147. To conclude, the Court ﬁnds that Pakistan is under an obligation
to provide, by means of its own choosing, eﬀective review and reconsid-
eration of the conviction and sentence of Mr. Jadhav, so as to ensure that
full weight is given to the eﬀect of the violation of the rights set forth in
Article 36 of the Vienna Convention, taking account of paragraphs 139,
145 and 146 of this Judgment.

                                        *
                                    *       *

44

459                         jadhav (judgment)

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

                                       *
                                   *       *

  149. For these reasons,
  The Court,
  (1) Unanimously,
  Finds that it has jurisdiction, on the basis of Article I of the Optional
Protocol concerning the Compulsory Settlement of Disputes to the
Vienna Convention on Consular Relations of 24 April 1963, to entertain
the Application ﬁled by the Republic of India on 8 May 2017;

  (2) By ﬁfteen votes to one,
   Rejects the objections by the Islamic Republic of Pakistan to the admis-
sibility of the Application of the Republic of India and finds that the
Application of the Republic of India is admissible;
  in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,
     Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari,
     Robinson, Crawford, Gevorgian, Salam, Iwasawa;

  against: Judge ad hoc Jillani;
  (3) By ﬁfteen votes to one,
  Finds that, by not informing Mr. Kulbhushan Sudhir Jadhav without
delay of his rights under Article 36, paragraph 1 (b), of the Vienna Con-
vention on Consular Relations, the Islamic Republic of Pakistan breached
the obligations incumbent upon it under that provision;

  in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,
     Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari,
     Robinson, Crawford, Gevorgian, Salam, Iwasawa;

  against: Judge ad hoc Jillani;
  (4) By ﬁfteen votes to one,
  Finds that, by not notifying the appropriate consular post of the
Republic of India in the Islamic Republic of Pakistan without delay of

45

460                         jadhav (judgment)

the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving
the Republic of India of the right to render the assistance provided for by
the Vienna Convention to the individual concerned, the Islamic Republic
of Pakistan breached the obligations incumbent upon it under Article 36,
paragraph 1 (b), of the Vienna Convention on Consular Relations;
  in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,
     Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari,
     Robinson, Crawford, Gevorgian, Salam, Iwasawa;

  against: Judge ad hoc Jillani;
  (5) By ﬁfteen votes to one,
   Finds that the Islamic Republic of Pakistan deprived the Republic of
India of the right to communicate with and have access to Mr. Kulb-
hushan Sudhir Jadhav, to visit him in detention and to arrange for his
legal representation, and thereby breached the obligations incumbent
upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Conven-
tion on Consular Relations;
  in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,
     Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari,
     Robinson, Crawford, Gevorgian, Salam, Iwasawa;

  against: Judge ad hoc Jillani;
  (6) By ﬁfteen votes to one,
   Finds that the Islamic Republic of Pakistan is under an obligation to
inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights
and to provide Indian consular oﬃcers access to him in accordance with
Article 36 of the Vienna Convention on Consular Relations;

  in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,
     Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari,
     Robinson, Crawford, Gevorgian, Salam, Iwasawa;

  against: Judge ad hoc Jillani;
  (7) By ﬁfteen votes to one,
   Finds that the appropriate reparation in this case consists in the obliga-
tion of the Islamic Republic of Pakistan to provide, by the means of its
own choosing, eﬀective review and reconsideration of the conviction and
sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full
weight is given to the eﬀect of the violation of the rights set forth in Arti-
cle 36 of the Convention, taking account of paragraphs 139, 145 and 146
of this Judgment;

  in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,

46

461                         jadhav (judgment)

      Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari,
      Robinson, Crawford, Gevorgian, Salam, Iwasawa;

  against: Judge ad hoc Jillani;
  (8) By ﬁfteen votes to one,
  Declares that a continued stay of execution constitutes an indispensable
condition for the eﬀective review and reconsideration of the conviction
and sentence of Mr. Kulbhushan Sudhir Jadhav.
  in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,
     Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari,
     Robinson, Crawford, Gevorgian, Salam, Iwasawa;

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

                                   (Signed) Abdulqawi Ahmed Yusuf,
                                                   President.
                                       (Signed) Jean-Pelé Fomété,
                                                Deputy-Registrar.

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

                                                    (Initialled) A.A.Y.
                                                    (Initialled) J.-P.F.

47