168- Jadhav (India vs Pakistan)
On May 08th, 2017, India filed a motion instituting proceedings against Pakistan before the International Court of Justice (ICJ) regarding the detention, trial and death sentence of one of its nationals by the State of Pakistan. The treatment suffered by Mr. Jadhav constituted, according to the applicant, a violation of the Vienna Convention on Consular Relations (the Convention).
India maintained that it had not been informed without delay of the arrest and detention of its national whom had not been informed of his rights under Article 36 of the Convention and that the Indian consulate was neither in the position to communicate with Mr. Jadhav nor ensure his legal representation.
The initial claim was accompanied by a request for the indication of provisional measures in which India asked the ICJ to order Pakistan to take all necessary measures to stay the execution of Mr. Jadhav and respect the rights of the Republic of India and its national in respect of any decision the Court may take on the merits of the case.
The order issued on May 18th, 2017 granted this request.
The ICJ ruled on the merits of the case in its judgment of July 17th, 2019. After affirming its jurisdiction and the admissibility of the application, the Court turned to the claims presented by the two parties. First, it dismissed Pakistan’s arguments that the Vienna Convention was not applicable in this case because Mr. Jadhav had been convicted of espionage.
It then considered all the points raised by India:
- Regarding firstly the alleged violation of Pakistan’s obligation under Article 36 of the Vienna Convention by failing to notify Mr. Jadhav detention to India: as this fact was not disputed by Pakistan, the Court concluded that the Respondent had breached its international obligations under this provision;
- Then onto the alleged breach of Pakistan’s obligation to notify India without delay of the arrest and detention of Mr. Jadhav. The question turned on the legal definition of without delay; in the present case, the notification had reached the Indian authorities three weeks after the said arrest. In view of the particular circumstances of the case, the ICJ concluded that Pakistan had breached its obligation to notify consular authorities “without delay” as required by Article 36 paragraph 1 (b) of the Vienna Convention;
- Finally, with regard to Pakistan’s alleged breach of its obligation to allow Indian consular authorities to communicate with Mr. Jadhav, as provided for in Article 36, paragraph 1, sub-paragraphs a and c of the Convention, the Court noted that once again, the point was not contested by Pakistan.