Jadhav Case (India vs.

Pakistan)
17 July 2019

FACTS:
 Mr. Jadhav was in the custody of Pakistani authorities starting the 3 rd of March 2016.
The parties to the case have conflicting versions of his detention:
o INDIA’S VERSION: Mr. Jadhav was kidnapped from Iran, where he was residing
as a retiree. He was subsequently transferred to Pakistan and detained for
interrogation.
o PAKISTAN’S VERSION: Mr. Jadhav was a spy for India and was arrested in
Balochistan, Pakistan (bordered by Iran on the west) after illegally entering
Pakistani territory. Allegedly in possession of an Indian passport with another
name.
 25 March 2016, the following events happen:
o Pakistan releases a video in which Jadhav appears to be confessing to
espionage and terrorism, raises the issues to the High Commissioner of India
in Islamabad.
o On the same day, Pakistan notifies the Security Council of the matter.
o Also on the same day, through a Note Verbal from the High Commissioner of
India in Islamabad to the Ministry of Foreign Affairs of Pakistan, India noted
the purported arrest and requested consular access to “the said individual.”
 Subsequently until 09 October 2017, India sent more than 10 Note Verbales
identifying Mr. Jadhav as an Indian national and seeking consular access.
 08 April 2016: Pakistani police registered a “First Information Report” (hence, FIR), a
document recording the information of alleged crimes and triggering police
investigation.
o A supplemental FIR was registered on 06 September 2016.
 22 July 2016: Jadhav makes a confessional statement, allegedly recorded before a
magistrate.
 21 September 2016: trial begins before the Field General Court Martial. Jadhav was
tried under Sec. 59 of the Pakistan Army Act of 1952 and Sec. 3 of the Official Secrets
Act of 1923.
o According to Pakistan, a law qualified field officer was specially appointed to
aid Jadhav in his defense, of which he was given an additional three weeks.
 02 January 2017: Adviser to the Prime Minister of Pakistan on Foreign Affairs sent a
letter to the UN Sec Gen informing the latter of the arrest and alleged India’s
involvement in destabilization activities aimed at Pakistan.
 23 January 2017: Pakistan foreign affairs ministry sent a letter to the High
Commissioner of India in Islamabad, seeking assistance in obtaining evidence.
o Subsequently, Pakistan claimed that despite these, no substantive response
from India was received.
 21 March 2017: Pakistan foreign affairs ministry sent a Note Verbale to the High
Commissioner of India in Islamabad, indicating that the request for consular access
would be considered.
o Ten days later, India replies that consular access would be a pre-requisite to
verify the facts of and circumstances regarding Jadhav’s presence in Pakistan.
 10 April 2017: Pakistan announces that Jadhav has been sentenced to death.
 o In a press statement dated 14 April 2017, Pakistan referred to availability of
modes of appeal.
 26 April 2017: High Commissioner transmits to Pakistan an “appeal” on behalf of
Jadhav’s mother under Sec. 133 (B) and a petition to the Federal Government of
Pakistan under Sec. 131 of the Pakistan Army Act.
 22 June 2017: Pakistan announces that the appeal to the Military Appellate Court was
rejected, which prompted Jadhav to make a mercy petition to the Chief of Army Staff.
o Same press release containing this information refers to another confession.
 10 November 2017: Pakistan informs India of its decision to allow Jadhav’s wife to visit
him on humanitarian grounds, which was also extended to Jadhav’s mother. Pakistan
made assurances as to the free movement, safety, and wellbeing of the visitors. Also
assured the presence of a diplomatic representative from India.
o 25 December 2017: visit takes place. Parties disagree over the extent to which
Pakistan gave effect to its assurances.
 India made the present application in order to declare Pakistan in violation of Jadhav’s
“elementary human rights”, citing the VCCR and also the ICCPR.
o NOTE: the application was filed before the Registry of the Court on 08 May
2017, instituting proceedings against Pakistan.

ISSUES + RULING OF THE COURT:

1. Whether or not India has abused the Court’s procedures in making its application.
 Pakistan made two arguments in this regard:
o The modes of appeal were made public in a 14 April 2017 press release.
o India failed to notify Pakistan of the existence of a dispute concerning
the interpretation or application of the VCCR until 08 May 2017.
 The Court, on the first argument: “there is no basis to conclude that India
abused its procedural rights when requesting the Court to indicate provisional
measures in this case.”
o WHY? Because there was considerable uncertainty as to WHEN any
decision on any appeal or petition could be rendered, and as to WHEN
Jadhav could be executed.
 The Court, on the second argument: None of the provisions of the Option
Protocol to the VCCR and VCDR relied on by Pakistan contain preconditions to
the exercise of the Court’s jurisdiction.  In short, THERE ARE NO
PREREQUISITES TO THE EXERCISE OF JURISDICITON.
o Citing US vs. Iran, the Court said that the language of the articles in the
Optional Protocol is permissive as to arbitration or to conciliation
(“parties may agree”)
o In other words, INDIA WAS UNDER NO OBLIGATION TO CONSIDER
OTHER MODES OF DISPUTE SETTLEMENT.

2. Whether or not India abused various rights under international law.

 Pakistan had three arguments in this regard:
o India refused to provide evidence of Jadhav’s nationality by means of
his actual passport in his real name, citing a duty to do so
 o India failed to engage with Pakistan’s request for assistance in
conducting the investigation
o India allegedly authorized Jadhav to cross the border and conduct
espionage and terrorist activities.
 India’s argument: Pakistan made contradicting arguments regarding the
question of nationality. Also, there is no mutual legal assistance treaty that
would have required India to aid Pakistan’s criminal investigation.
o In any event, according to India, Art. 36 of the Vienna Convention
regarding the grant of consular assistance is not predicated on any such
obligation (to lend assistance to an investigation).
 The Court: Citing Equatorial Guinea vs. France, abuse of rights cannot be
invoked as a ground for inadmissibility of a claim. HOWEVER, the Court notes
that Pakistan is appearing to suggest that India has failed to prove Jadhav’s
nationality. As such, the Court addressed it at this stage.
o Both parties appear to have considered Jadhav to be an Indian national.
THUS, “it leaves no room for doubt that Jadhav is of Indian nationality.”
 On Pakistan’s second and third arguments: the allegations are a matter for the
merits and thus cannot be invoked as grounds for inadmissibility. (The Court
will address the 2nd and 3rd arguments later in the merits)

3. Whether or not India engaged in alleged unlawful conduct.

 Pakistan also asks the Court to dismiss the current application on the basis that
India did not come to Court with clean hands, as on the outset, it engaged
Jadhav to conduct espionage and terrorist activities.
 The Court: an objection based on the “clean hands” doctrine does not per se
render an application inadmissible. The Court rejects this argument.

4. Whether or not Art. 36 of the VCCR applies in this case.1

 Pakistan made three arguments regarding the inapplicability of the VCCR:
o First, Art. 36 does not apply to prima facie cases of espionage
o Second, customary IL governs cases of espionage
o Third, a 2008 Agreement on Consular Access between India and
Pakistan governs, rather than the VCCR.
 The Court, on the 1st argument: Prefatorily, the Court notes that India is NOT
a party nor has it ratified the VCLOT. As a matter of interpretation, the
provisions of the VCCR must be interpreted in good faith and in accordance
with the ordinary meaning and object and purpose of the Convention.
o On the merits: Art. 36 does not contain a reference to espionage.
Neither is espionage excluded from its scope.
 On the 2nd argument: 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”

1
Basically, this Article (esp. pars. 2 & 3) refers to the right of consular officers to have access to their nationals
in the receiving State, especially if they are imprisoned.
 o India has been a State party to the VCCR since 1977, and Pakistan
since 1966. They did not attach any reservation or declaration to
the provisions of the Convention.
o THEREFORE, art. 36 governs and NOT customary IL.
 On the 3rd argument: The Court notes the text of the 2008 Agreement: point
(vi) of the 2008 Agreement provides that “[i]n case of arrest, detention or
sentence made on political or security grounds, each side may examine the
case on its merits”
o 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 sentence made on political or security grounds.
o Also note Art. 73, Par. 2 of the VCCR: [n]othing in the present
Convention shall preclude States from concluding international
agreements confirming or supplementing or extending or
amplifying the provisions thereof
o HENCE, the 2008 Agreement does NOT displace obligations under
Art. 36 of the VCCR.

5. On the alleged violations of Art. 36

 On this point, India made several allegations:
o Failure to appraise Jadhav of his rights under Art. 36
 The Court: Pakistan itself maintained that it made
exceptions to Art. 36 in cases of espionage. Thus, Pakistan
breached its obligation.
o Failure to inform India, without delay, of the arrest and detention
 The Court: when a national of the sending State is in prison,
custody or detention, an obligation of the authorities 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, paragraph 1 (c)
 There was notification by Pakistan on 25 March 2016.
 However, there was a delay in making the arrest and
detention known, considering that on 03 March 2016,
Pakistan had reason to believe Jadhav was an Indian
national but only made the notification on 25 March.
o Failure to provide consular access:
 The Court: In the present case, it is undisputed that Pakistan
has not granted any Indian consular officer access to Mr.
Jadhav. There were many Note Verables sent by India.

6. On the abuse of rights by India

 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.
 The Court: 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. Otherwise, the
whole system of consular assistance would be severely undermined.
o Pakistan is NOT justified in its breaches by India’s alleged abused of
rights.

7. On remedies
 India seeks the following reliefs: “the annulment of a domestic criminal
conviction, the annulment of a domestic criminal sentence, the release of a
convicted prisoner”
 The Court considers that the breaches by Pakistan 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.
o Consequently, 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.
 With regard to India’s submission that the Court declare that the sentence
handed down by Pakistan’s military court is violative of international law and
the provisions of the Vienna Convention… the Court’s 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.
o It is the conviction and sentence of Mr. Jadhav which are to be regarded
as a violation of Article 36 of the Vienna Convention.
o Court’s final word: “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.”