537 NUCLEAR TESTS (ORDER 20 XII 74)

has she invoked any basis of jurisdiction vis-à-vis France in her request to
intervene.

The Court should have decided upon this request itself as required by
Article 62 of the Statute of the Court and should, in my view, have rejected
it on the ground that the condition of reciprocity of an obligation to accept
the Court’s jurisdiction was wholly absent between Fiji and France.

Judges DirLARD and Sir Humphrey WaLpock make the following
joint declaration:

The Order states that, the Court having found that the claim of New
Zealand no longer has any object, the Court is not called upon to give a
decision thereon and consequently there will no longer be any proceedings
to which intervention can relate. The Application of the Government of
Fiji has, according to the Order, therefore lapsed.

The conclusion flows logically from the premise. As Members of the
Court, bound by its decision in the Nuclear Tests case, we are therefore
impelled to vote in favour of the Order. It is clearly not possible for the
Government of Fiji to intervene in proceedings, when, by the Judgment of
the Court, no proceedings exist.

Having said this we feel it incumbent on us to state that we do not agree
with the premise which furnishes the ground on which the Court’s con-
clusion rests. As indicated in detail in the dissenting opinion of ourselves
and some of our colleagues, we do not agree that the Court should have
decided that no further action is called for on the claim of New Zealand
against France.

If, in the case of New Zealand v. France, the views of the minority had
prevailed, the issue of.Fiji’s intervention would have required examination
in order to determine whether or not there existed a sufficient jurisdic-
tional link between Fiji and France to justify the former’s intervention
under Article 62 of the Court’s Statute. Furthermore, in our view an
opportunity should have been given to Fiji to be heard on the issue before
this determination was made.

It follows from what we have said above that, while we feel impelled to
vote for the Order of the Court, our reasons for doing so differ in certain
respects from those advanced by the Court.

Judge JIMENEZ DE ARECHAGA makes the following declaration:

I have concurred in voting for the dismissal of Fiji’s application to
intervene under Article 62 of the Statute for a reason other than that on

6
538 NUCLEAR TESTS (ORDER 20 XII 74)

which the Order is based: because Fiji, which is not a party to the 1928
Act and to the optional clause system, has failed to invoke in its applica-
tion any title of jurisdiction in relation to France.

In my view, in order to be entitled to intervene under Article 62 of the
Statute for the purpose of asserting a right as against the respondent a
State must be in a position in which it could itself bring the respondent
before the Court.

When Article 62 of the Statute was drafted, its authors were proceeding
on the assumption that the intervening State would have its own title of
jurisdiction in relation to the respondent, since the draft Statute then
provided for general compulsory jurisdiction. When that system was
replaced by the optional clause, Article 62 remained untouched, but it
must be interpreted and applied as still subject to that condition. Other-
wise, unreasonable consequences would result, in conflict with basic
principles such as those of the equality of parties before the Court and
the strict reciprocity of rights and obligations among the States which
accept its jurisdiction. A State which cannot be brought before the Court
as a respondent by another State can neither become an applicant vis-a-
vis that State nor an intervener against that same State, entitled to make
independent submissions in support of an interest of its own. In my view
the provision in Article 69, paragraph 2, of the Rules of Court requiring
“a statement of law and of fact justifying intervention” must in circum-
stances like those in the present case be interpreted as including the
requirement of establishing an independent jurisdictional link between
intervener and respondent.

Judge ad hoc Sir Garfield BARWICK makes the following declaration:

J have voted in favour of the Order made in respect of the Application
by Fiji to intervene in these proceedings not because of the Order made by
the Court in the cases Australia v. France and New Zealand v. France
but solely for the reasons expressed by Judge Jiménez de Aréchaga and
Judge Onyeama in their declarations concerning the Fiji Order, with
which I entirely agree.

(Initialled) M.L.
(Initialled) S.A.


578

           DECLARATION OF VICE-PRESIDENT YUSUF

   Existence of a dispute — Matter for objective determination — Positively
opposed juridical views required — Subjective criterion of “awareness” not a
condition — “Awareness” has no basis in jurisprudence of Court — It also
undermines sound administration of justice — Court could have reached same
conclusions without using “awareness” criterion — Incipient dispute must exist
prior to application to the Court — Dispute can crystallize during proceedings —
At issue is Pakistan’s compliance with obligation to negotiate nuclear
disarmament — Both Parties supported negotiations on disarmament — Both
voted in favour of relevant United Nations resolutions — No evidence of positively
opposed views.

   1. I agree with the conclusions of the Court on the inexistence of a dis-
pute between the Republic of the Marshall Islands and Pakistan on
the subject-matter of the Application of the former. I disagree, however,
with some aspects of the reasoning in the Judgment. I disagree, in
particular, with the introduction of the subjective criterion of “awareness”
in the assessment by the Court of the existence of a dispute. This is a clear
departure from the consistent jurisprudence of the Court on this matter. I
am also in disagreement with the one-size-ﬁts-all approach to the three
distinct cases argued before the Court by the Parties (Marshall Islands v.
India, Marshall Islands v. Pakistan, Marshall Islands v. United Kingdom).
   2. It is correctly stated in the Judgment that: “[w]hether a dispute exists
is a matter for objective determination by the Court which must turn on
an examination of the facts”, and, for that purpose, “the Court takes into
account in particular any statements or documents exchanged between
the parties, as well as any exchanges made in multilateral settings”
(para. 36). However, as has been shown in my dissenting opinion on Mar-
shall Islands v. United Kingdom, and as will be demonstrated in this
declaration, the policy approaches of the respondent States to the nego-
tiation and conclusion of an international instrument on nuclear disarma-
ment are quite diﬀerent from each other and the positions they have
taken in multilateral forums on the subject-matter of the dispute are far
from being identical. The existence of a dispute between each one of them
and the applicant State has therefore to be determined in light of those
distinctive facts.
   3. The jurisdiction of the Court is to be exercised in contentious cases
only in respect of legal disputes submitted to it by States. This case was
submitted to the Court on the basis of Article 36, paragraph 2, of the
Statute. This provision does not deﬁne what is meant by a “legal dis-

30

579          nuclear arms and disarmament (decl. yusuf)

pute”; it therefore falls to the Court not only to deﬁne it, but also to
determine its existence or inexistence in a case such as this one before
proceeding to the merits.

   4. The jurisprudence of the Court is replete with such deﬁnitions. The
ﬁrst one, which is still frequently cited by the Court, was in the Mavrom-
matis Palestine Concessions case, in which the Court stated that: “A dis-
pute is a disagreement on a point of law or fact, a conﬂict of legal views
or of interests between two persons.” (Mavrommatis Palestine Conces-
sions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.) It has since
then, however, been further elaborated and enriched by subsequent juris-
prudence.

   5. The Court has clearly established in its jurisprudence that: “[w]hether
there exists an international dispute is a matter for objective determina-
tion” (Interpretation of Peace Treaties with Bulgaria, Hungary and Rom-
ania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74). It has also
observed, in elaborating further on the deﬁnition given by the PCIJ in the
Mavrommatis case, that:
        “A mere assertion is not suﬃcient to prove the existence of a dispute
      any more than a mere denial of the existence of the dispute proves its
      non-existence. Nor is it adequate to show that the interests of the two
      parties to such a case are in conﬂict. It must be shown that the claim
      of one party is positively opposed by the other.” (South West Africa
      cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
      Objections, Judgment, I.C.J. Reports 1962, p. 328.)

More recently, the Court stated in Georgia v. Russian Federation that:
“The Court’s determination must turn on an examination of the facts.
The matter is one of substance, not of form” (Application of the Interna-
tional Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment,
I.C.J. Reports 2011 (I), p. 84, para. 30).
   6. Notwithstanding this jurisprudence of the Court, it is stated in para-
graph 38 of the Judgment that: “a dispute exists when it is demonstrated,
on the basis of the evidence, that the respondent was aware, or could not
have been unaware, that its views were ‘positively opposed’ by the appli-
cant”. The Judgment claims that this requirement is reﬂected “in previous
decisions of the Court in which the existence of a dispute was under con-
sideration”, and invokes as authority for this statement two judgments,
namely the Judgments on preliminary objections in the cases of
Alleged Violations of Sovereign Rights and Maritime Spaces in the Carib-
bean Sea (Nicaragua v. Colombia) and the Application of the International
Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation) (ibid.).

31

580         nuclear arms and disarmament (decl. yusuf)

   7. Neither of the two referenced Judgments provides support to a sub-
jective requirement of “awareness” by the Respondent in the determina-
tion of the existence of a dispute. In the Alleged Violations Judgment on
preliminary objections, the Court determined that a dispute existed on the
basis of statements made by the “highest representatives of the Parties”
(Alleged Violations of Sovereign Rights and Maritime Spaces in the Carib-
bean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment,
I.C.J. Reports 2016 (I), pp. 32-33, para. 73). It simply stated as a matter
of fact that Colombia was aware that its actions were positively opposed
by Nicaragua. “Awareness” was not identiﬁed as a criterion for the exis-
tence of a dispute, nor was it treated as such by the Court.

   8. Similarly, in the Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian Fed-
eration), the Court merely noted that Russia was or was not aware of the
position taken by Georgia in certain documents or statements. It did not
identify “awareness” as a requirement for the existence of a dispute at any
point in the Judgment nor was this implicit in the Court’s reasoning (Pre-
liminary Objections, Judgment, I.C.J. Reports 2011 (I), pp. 117-120,
paras. 106-113).

   9. It is indeed the ﬁrst time that such a subjective condition is intro-
duced into the assessment by the Court of the existence of a dispute. As
pointed out above, the Court’s jurisprudence has always viewed the exis-
tence of a dispute as an objective matter. The Court has underlined on
many occasions that the determination of the existence of a dispute is a
“matter . . . of substance, not of form” (ibid., p. 84, para. 30).
   10. The function of the Court is to determine objectively the existence
of a conﬂict of legal views on the basis of evidence placed before it and
not to delve into the consciousness, perception and other mental pro-
cesses of States (provided they do possess such cerebral qualities) in order
to ﬁnd out about their state of awareness.
   11. The introduction of an “awareness” test into the determination of
the existence of a dispute does not only go against the consistent jurispru-
dence of the Court; it also undermines judicial economy and the sound
administration of justice by inviting submissions of second applications
on the same dispute. If a formalistic requirement such as “awareness” is
to be demanded as a condition for the existence of a dispute, the appli-
cant State may be able to fulﬁl such a condition at any time by instituting
fresh proceedings before the Court. The respondent State would,
of course, be aware of the existence of the dispute in the context
of these new proceedings. It is to avoid exactly this kind of situation
that the Permanent Court of International Justice observed in the
Polish Upper Silesia case that: “the Court cannot allow itself to be
hampered by a mere defect of form, the removal of which depends solely
on the Party concerned” (Jurisdiction, Judgment No. 6, 1925, P.C.I.J.,
Series A, No. 6, p. 14).

32

581         nuclear arms and disarmament (decl. yusuf)

  12. More recently, in the Military and Paramilitary Activities case
(Nicaragua v. United States of America), the Court stated that: “It would
make no sense to require Nicaragua now to institute fresh proceedings
based on the Treaty, which it would be fully entitled to do.” (Jurisdiction
and Admissibility, Judgment, I.C.J. Reports 1984, pp. 428-429, para. 83.)

   13. Thus, in those circumstances where an applicant State may be enti-
tled to bring fresh proceedings to fulﬁl an initially unmet formal condi-
tion, it is not in the interests of the sound administration of justice to
compel it to do so (see Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary
Objections, Judgment, I.C.J. Reports 2008, p. 442, para. 87). The intro-
duction of a test of “awareness” constitutes an open invitation to the
applicant State to institute such proceedings before the Court, having
made the respondent State aware of its opposing views.

  14. The existence of a dispute has to stand objectively by itself. What
matters is that there is a positive opposition of juridical viewpoints, a
disagreement on a point of law or fact. It is not for both parties to deﬁne
or to circumscribe the dispute before it comes to the Court, except when
drawing up a compromis. In all other instances it is the task of the Court
to do so. Nor is it a legal requirement for the existence of a dispute that
the applicant State provide prior notice or raise the awareness of the
respondent before coming to the Court.

   15. The Court could have come to the same conclusions reached in the
present Judgment by applying the criteria traditionally used by it in the
determination of the existence of a dispute. On the basis of the evidence
placed before it in this case, the Court could have concluded that the Par-
ties did not hold positively opposed views prior to the submission of the
Application by the Marshall Islands. There was no need to introduce a
new criterion of “awareness” in order to justify those conclusions. Indeed,
as indicated in paragraph 52 of the Judgment: “the question whether
there is a dispute in a particular contentious case turns on the evidence of
opposition of views”. Nothing more, nothing less, as stated by the Court
on so many occasions in the past.

   16. Thus, the conclusions of the Judgment on the absence of a dispute
between the Republic of the Marshall Islands and Pakistan should have
been based on an analysis of the facts in the case ﬁle regarding the posi-
tions of the Parties on the subject-matter of the alleged dispute. In par-
ticular, account should have been taken of the articulation of those
positions in multilateral settings (see para. 36), since there were no bilat-
eral exchanges between the Marshall Islands and Pakistan prior to the
ﬁling of the Application by the former. As the Court had done in
Georgia v. Russian Federation, it should have reviewed the documents and

33

582         nuclear arms and disarmament (decl. yusuf)

statements relied upon by the Parties, including statements in multilateral
settings and voting record in the United Nations General Assembly,
to demonstrate the existence or non-existence of a dispute between them
(see Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation), Prelimi-
nary Objections, Judgment, I.C.J. Reports 2011 (I), pp. 100-120,
paras. 63-113).
   17. However, before turning to the examination of those documents
and statements, a few observations need to be made on the subject-matter
of the dispute and the date at which the dispute must have existed, both
of which are important factors in the objective determination of the exis-
tence or absence of a dispute between the Parties.
   18. It is for the Court itself to determine on an objective basis the
subject-matter of the dispute between the Parties, that is, to “isolate the
real issue in the case and to identify the object of the claim” (Nuclear Tests
(Australia v. France), Judgment, I.C.J. Reports 1974, p. 262, para. 29;
Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974,
p. 466, para. 30). However, in doing so, the Court examines the positions
of both Parties, while giving particular attention to the manner in which
the subject-matter of the dispute is framed by the applicant State (Fisher-
ies Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment,
I.C.J. Reports 1998, p. 448, para. 30; see also Territorial and Maritime
Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment,
I.C.J. Reports 2007 (II), p. 848, para. 38).
   19. In its Memorial, the Republic of the Marshall Islands describes its
dispute with Pakistan as concerning “Pakistan’s compliance or non-
compliance with its obligation under customary international law to pur-
sue in good faith, and bring to a conclusion, negotiations leading to nuclear
disarmament in all its aspects under strict and eﬀective international con-
trol” (Memorial of the Marshall Islands (MMI), para. 42). This framing
of the subject-matter of the dispute was reiterated by the Republic of the
Marshall Islands in oral proceedings (CR 2016/2, pp. 25-26, paras. 4-5
(Condorelli)).
   20. Although the Republic of the Marshall Islands argued at various
points in its pleadings that the quantitative build-up and qualitative
improvement of Pakistan’s nuclear arsenal was “contrary to the objective
of nuclear disarmament” (MMI, para. 48), the Republic of the Mar-
shall Islands relies mainly on the statement made by its Foreign Minister
at the Second Conference on the Humanitarian Impact of Nuclear Weap-
ons held in Nayarit, Mexico, as evidence of the existence of a dispute with
Pakistan. In that statement, the Republic of the Marshall Islands, after
accusing the States possessing nuclear weapons of failing to fulﬁl their
legal obligations on pursuing nuclear disarmament through multilateral
negotiations, declared that “the immediate commencement and conclu-
sion of such negotiations is required by legal obligation of nuclear disar-
mament resting upon each and every State under Article VI of the
Non-Proliferation Treaty and customary international law”.

34

583         nuclear arms and disarmament (decl. yusuf)

   21. The subject-matter of the dispute may therefore be considered to
relate in this case to the alleged non-compliance of Pakistan with a cus-
tomary law obligation to pursue in good faith and to bring to a conclu-
sion negotiations on nuclear disarmament. While the issue of
non-compliance with such an obligation, assuming of course that it exists,
belongs to the merits of the case, what is at issue at this point is the exis-
tence of positively opposed viewpoints on the pursuit in good faith of
negotiations on nuclear disarmament. In other words, for the purpose of
determining the existence of a dispute between the Marshall Islands and
Pakistan, the Court has to ascertain on the basis of the facts placed before
it whether there is a disagreement between the Parties on the immediate
commencement and conclusion of multilateral negotiations on nuclear
disarmament.
   22. As the Court has pointed out on several occasions, such disagree-
ment must, in principle, have existed at the time of the institution of pro-
ceedings before the Court (Alleged Violations of Sovereign Rights and
Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Prelimi-
nary Objections, Judgment, I.C.J. Reports 2016 (I), p. 27, para. 52; Ques-
tions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Judgment, I.C.J. Reports 2012 (II), p. 442, para. 46; Applica-
tion of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Preliminary Objec-
tions, Judgment, I.C.J. Reports 2011 (I), p. 84, para. 30). The seisin of the
Court cannot by itself bring into being a dispute between the Parties.
There must be as a minimum the start or the onset of a dispute prior to
the ﬁling of an application, the continuation or crystallization of which
may become more evident in the course of the proceedings.
   23. As explained in the following paragraphs, and in contrast to the
Marshall Islands v. United Kingdom case, it does not appear that there was
an incipient dispute between the Republic of the Marshall Islands and
Pakistan in the present case prior to the ﬁling of the Application. As dis-
cussed in my dissenting opinion in Marshall Islands v. United Kingdom, the
Nayarit statement by the Republic of the Marshall Islands may be consid-
ered as a protest meant to contest the attitude of all the nuclear-weapons
States towards the immediate commencement of negotiations on a com-
prehensive convention for the elimination of nuclear weapons. However,
for there to exist at least the beginning of a dispute between the Republic
of the Marshall Islands and Pakistan, it must be shown that Pakistan had
a course of conduct which was positively opposed to the commencement
and conclusion of such negotiations prior to the institution of proceedings.
A review of the voting record and statements mentioned above shows that
Pakistan has systematically supported the immediate commencement and
conclusion of multilateral negotiations aimed at the elimination of nuclear
weapons both before and after the submission of the Application by the
Republic of the Marshall Islands.
   24. Pakistan has consistently voted in favour of United Nations Gen-
eral Assembly resolutions that call upon States immediately to commence

35

584          nuclear arms and disarmament (decl. yusuf)

multilateral negotiations leading to an early conclusion of a comprehen-
sive nuclear weapons convention providing for disarmament. It has done
so both in the context of the string of resolutions that follow up on the
Advisory Opinion of the Court on the Legality of the Threat or Use of
Nuclear Weapons as well as those that follow up on the 2013 United
Nations General Assembly High-Level Meeting on Nuclear Disarma-
ment.
   25. Pakistan has also voted in favour of the United Nations General
Assembly resolutions entitled “Convention on the Prohibition of the Use
of Nuclear Weapons”, which calls upon States to negotiate a comprehen-
sive treaty on nuclear disarmament, and has participated in the meetings
of the Open Ended Working Group (OEWG) established by the United
Nations General Assembly with the aim of taking forward proposals for
multilateral nuclear disarmament negotiations.
   26. In addition to voting in favour of resolutions urging the immediate
commencement of negotiations, representatives of Pakistan have also
made statements at multilateral forums calling upon States holding
nuclear arsenals to commence disarmament negotiations. The Represen-
tative of Pakistan, for example, stated in the First Committee Them-
atic Debate on Nuclear Weapons on 18 October 2013 that “the
international community should immediately start negotiations on a
Convention for the elimination of nuclear weapons within a speciﬁed time
frame” (Statement by Ambassador Zamir Akram, Permanent Represen-
tative of Pakistan to the United Nations, Geneva, at the First Thematic
Debate on Nuclear Weapons (Sixty-Eighth Session of the UNGA),
New York, 18 October 2013).

  27. Moreover, Pakistan, as a member of the Non-Aligned Movement
(NAM), has consistently subscribed to statements made by this group of
States that express willingness to engage in multilateral negotiations lead-
ing to nuclear disarmament. Thus, in August 2012, at the Sixteenth Sum-
mit Conference of the Non-Aligned Movement, the Heads of State or
Government,
      “reiterated deep concern over the slow pace of progress towards
      nuclear disarmament and the lack of progress by the Nuclear-Weapons
      States (NWS) to accomplish the total elimination of their nuclear
      arsenals in accordance with their relevant multilateral legal obliga-
      tions . . . and emphasized, in this regard, the urgent need to commence
      negotiations on comprehensive and complete nuclear disarmament
      without delay” (Sixteenth Summit of Heads of State or Government
      of the Non-Aligned Movement, August 2012, para. 151).

Similarly, at the Sixteenth Ministerial Conference of the Non-Aligned
Movement:
        “The Ministers . . . reiterated deep concern over the slow pace of

36

585           nuclear arms and disarmament (decl. yusuf)

      progress towards nuclear disarmament and the lack of progress by
      the Nuclear-Weapons States (NWS) to accomplish the total elimina-
      tion of their nuclear arsenals in accordance with their relevant multi-
      lateral legal obligations . . . and emphasized, in this regard, the urgent
      need to commence negotiations on comprehensive and complete
      nuclear disarmament without delay.” (Sixteenth Ministerial Confer-
      ence and Commemorative Meeting of the Non-Aligned Movement,
      Final Document, May 2011, para. 136.)
  28. In a statement to the United Nations Conference on Disarmament,
the Representative of Pakistan declared on 22 May 2012 that:
         “In terms of importance, no other issue can claim primacy over
      Nuclear Disarmament, Pakistan, along with the 118 members of the
      Non-Aligned Movement, believes that the CD must get on with its
      obligation of negotiating a convention on nuclear disarmament, with-
      out further delay, if it has to justify the purpose of its creation.”
      (Statement by Ambassador Zamir Akram, Permanent Representative
      of Pakistan to the United Nations and other international organiza-
      tions on nuclear disarmament at the conference of disarmament,
      Geneva, 22 May 2012.)

   29. Thus, the positions taken by Pakistan in multilateral forums, its
voting record on United Nations General Assembly resolutions, and the
statements of its representatives do not indicate a course of conduct or an
attitude in positive opposition to that of the Republic of the Mar-
shall Islands, but rather a convergence of views on the commencement
and conclusion of multilateral negotiations aimed at nuclear disarma-
ment.
   30. Based on the evidence in the record, it is therefore my view that
positively opposed views were not held by Pakistan and the Republic of
the Marshall Islands with respect to the obligation to pursue and con-
clude negotiations on nuclear disarmament, assuming that such an obli-
gation exists in customary international law, prior to the submission of
the application by the Republic of the Marshall Islands.

                                           (Signed) Abdulqawi A. Yusuf.

37


                      INTERNATIONAL COURT OF JUSTICE

                        REPORTS OF JUDGMENTS,
                     ADVISORY OPINIONS AND ORDERS

                           JADHAV CASE
                           (INDIA v. PAKISTAN)

                        ORDER OF 17 JANUARY 2018

                             2018
                      COUR INTERNATIONALE DE JUSTICE

                          RECUEIL DES ARRÊTS,
                   AVIS CONSULTATIFS ET ORDONNANCES

                         AFFAIRE JADHAV
                           (INDE c. PAKISTAN)

                     ORDONNANCE DU 17 JANVIER 2018

5 CIJ1130.indb 1                                       7/06/18 11:21

                                               Official citation :
                                          Jadhav (India v. Pakistan),
                              Order of 17 January 2018, I.C.J. Reports 2018, p. 3

                                            Mode officiel de citation :
                                         Jadhav (Inde c. Pakistan),
                            ordonnance du 17 janvier 2018, C.I.J. Recueil 2018, p. 3

                                                                                1130
                                                                 Sales number
                   ISSN 0074-4441                                No de vente:
                   ISBN 978-92-1-157328-2

5 CIJ1130.indb 2                                                                       7/06/18 11:21

                                         17 JANUARY 2018

                                             ORDER

                     JADHAV CASE
                   (INDIA v. PAKISTAN)

                    AFFAIRE JADHAV
                   (INDE c. PAKISTAN)

                                         17 JANVIER 2018

                                         ORDONNANCE

5 CIJ1130.indb 3                                           7/06/18 11:21

                    3

                                   INTERNATIONAL COURT OF JUSTICE

                                                    YEAR 2018
        2018
     17 January
     General List                                 17 January 2018
      No. 168

                                              JADHAV CASE
                                             (INDIA v. PAKISTAN)

                                                     ORDER

                    Present:
                             President Abraham; Vice‑President Yusuf; Judges Owada,
                             Tomka, Bennouna, Cançado Trindade, Greenwood, Xue,
                             Donoghue, Gaja, Sebutinde, Bhandari, Robinson,
                             Gevorgian; Judge ad hoc Jillani; Registrar Couvreur.

                        The International Court of Justice,
                       Composed as above,
                       After deliberation,
                       Having regard to Article 48 of the Statute of the Court and to Arti-
                    cles 44, 45, paragraph 2, 48 and 49 of the Rules of Court,
                       Having regard to the Application filed in the Registry of the Court on
                    8 May 2017, whereby the Republic of India (hereinafter “India”) insti-
                    tuted proceedings against the Islamic Republic of Pakistan (hereinafter
                    “Pakistan”), concerning alleged violations of the Vienna Convention on
                    Consular Relations of 24 April 1963 “in the matter of the detention and
                    trial of an Indian National, Mr. Kulbhushan Sudhir Jadhav”, sentenced
                    to death in Pakistan,
                       Having regard to the Request for the indication of provisional mea-
                    sures submitted by India on 8 May 2017 and to the Order by which the
                    Court indicated provisional measures on 18 May 2017,
                       Having regard to the Order dated 13 June 2017, whereby the President
                    of the Court fixed 13 September 2017 and 13 December 2017 as the

                    4

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                   4 	                        jadhav (order 17 I 18)

                   respective time‑limits for the filing of a Memorial by India and a Counter‑
                   Memorial by Pakistan,
                      Having regard to the Memorial and the Counter‑Memorial duly filed
                   by the Parties within those time‑limits ;
                      Whereas, by a letter dated 19 December 2017, the Agent of India indi-
                   cated, inter alia, that the Counter‑Memorial of Pakistan raised “issues of
                   fact and law that may not necessarily have been anticipated by India and
                   considered in the Memorial filed by India” ; whereas he further stated that
                   the Government of India, referring to Article 45, paragraph 2, of the
                   Rules of Court, requested the Court to authorize the submission of a
                   Reply by India and a Rejoinder by Pakistan ; and whereas the Agent indi-
                   cated that India requested that each Party be granted a period of
                   three months for the preparation of its pleading ;
                      Whereas, by letter dated 5 January 2018, the Co‑Agent of Pakistan
                   stated, inter alia, that the Government of Pakistan considered that “the
                   Court [was], following receipt of the initial written pleadings, sufficiently
                   informed of the contentions of fact and law relied upon by India and
                   Pakistan” and that the submission of further pleadings in the case was
                   not necessary ; whereas the Co‑Agent further stated that,
                         “[n]evertheless, and without prejudice to the foregoing, in the event
                         that India is further and clearly able to particularize the basis for its
                         request for a further round of pleadings, within a shorter time frame,
                         in the interests of ensuring a full and fair process, Pakistan may be
                         amenable to acceding to a further round of pleadings, should the
                         Court also consider this to be necessary”;
                      Whereas, by letter dated 5 January 2018, India, in light of the views
                   expressed by Pakistan, was invited to furnish the Court with any further
                   observations that it may wish to make by 10 January 2018; and whereas
                   by letter of the same date Pakistan was informed that it would have the
                   opportunity to provide any comments it may wish to make on those
                   observations by 15 January 2018;
                      Whereas, by letter dated 10 January 2018, the Agent of India reiterated
                   its position that Pakistan, in its Counter‑Memorial, had for the first time
                   “set out its defence and in doing so ha[d] raised various issues of fact and
                   law” ; whereas he further stated that Pakistan, in particular, was seeking
                   to develop various legal theories as a defence against violations of the
                   Vienna Convention ; whereas the Agent of India stated that the allega-
                   tions of fact and submissions of law made by Pakistan in its Counter‑
                   Memorial “would have to be fully rebutted” ; whereas the Agent indicated
                   further that India also sought an opportunity to place on record recent
                   developments in the case ; and whereas, finally, the Agent reiterated
                   India’s Request that the Court authorize the submission of a Reply and
                   that a period of three months be granted for the preparation of that
                   pleading ;

                   5

5 CIJ1130.indb 6                                                                                7/06/18 11:21

                   5 	                        jadhav (order 17 I 18)

                      Whereas, by letter dated 15 January 2018, the Co‑Agent of Pakistan
                   submitted that India still failed to identify any issue that could not have
                   been addressed in its Memorial and that it was “in essence, now seeking
                   a further opportunity (if not a second chance) to supplement its Memo-
                   rial, in respect of facts and matters that it should already have addressed” ;
                   whereas the Co‑Agent stated in his letter that India could not be taken by
                   surprise by the content of the Counter‑Memorial, since Pakistan had
                   already presented its key arguments during the proceedings on provi-
                   sional measures despite of the urgency and short notice ; whereas the
                   Co‑Agent added that the interests of justice and fairness would not be
                   served by delaying the adjudication of the case yet further ; whereas the
                   Co‑Agent nevertheless indicated that “with due deference to the Court . . .
                   Pakistan would respectfully consent to a further round of pleadings,
                   which permits two months to India to serve its Reply and Pakistan
                   two months thereafter for a Rejoinder” ;

                     Taking into account the views of the Parties and the circumstances of
                   the case,
                     Authorizes the Republic of India to submit a Reply and the Islamic
                   Republic of Pakistan to submit a Rejoinder ;
                       Fixes the following time‑limits for the filing of those pleadings :

                       17 April 2018 for the Reply of the Republic of India ;
                       17 July 2018 for the Rejoinder of the Islamic Republic of Pakistan ; and

                       Reserves the subsequent procedure for further decision.

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

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

                   6

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