The Order That Was: What International Court of Justice Said
Presiding judge Ronny Abraham of France (center) reads the World Court's verdict in the case brought by India against Pakistan in The Hague on Thursday, May 18, 2017.(AP Photo/Peter Dejong)
New Delhi: India on Thursday scored a major diplomatic victory as the International Court of Justice told the Islamic Republic of Pakistan that it must take "all measures at its disposal" to prevent the execution of Kulbhushan Sudhir Jadhav, an Indian national, pending final judgment of the Court.
Here is the text of the ICJ statement issued right after its order in favour of India:
In its order indicating provisional measures, which was adopted unanimously, the Court also stated that the Government of Pakistan shall inform it of all measures taken in implementation of that Order. It further decided to remain seized of the matters which form the subject of the Order until it has rendered its final judgment.
History of the proceedings
Reasoning of the Court
The Court begins by considering whether it has jurisdiction prima facie to hear the case. It recalls that India seeks to ground its jurisdiction in Article I of the Optional Protocol to the Vienna Convention, which provides that the Court has jurisdiction over "disputes arising out of the interpretation or application of the Vienna Convention". In this regard, the Court notes that the Parties do indeed appear to have differed, and still differ today, on the question of India's consular assistance to Jadhav under the Vienna Convention. It further notes that the acts alleged by India, i.e., the alleged failure by Pakistan to provide the requisite consular notifications with regard to the arrest and detention of Jadhav, as well as the alleged failure to allow communication and provide access to him, appear to be capable of falling within the scope of the Convention. In the view of the Court, this is sufficient to establish that it has prima facie jurisdiction under Article I of the Optional Protocol. The Court further observes that the existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.
The Court then turns to the question whether the rights alleged by India are at least plausible. It observes that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognised in Article 36, paragraph 1, of the Vienna Convention, and that India has alleged violations of this provision. In the view of the Court, therefore, it appears that the rights alleged by India are plausible.
The Court then examines whether there is a risk of irreparable prejudice and urgency. It considers that the mere fact that Judah is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India. The Court further observes that Pakistan has indicated that any execution of Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case. The Court also notes that Pakistan has given no assurance that Jadhav will not be executed before the Court has rendered its final decision. In those circumstances, the Court is satisfied that there is urgency in the present case.
The Court concludes by indicating the following measures:
"Pakistan shall take all measures at its disposal to ensure that 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. The court also decides that, until it has given its final decision, it shall remain seized of the matters which form the subject-matter of this Order."
Composition of the Court
Judge Cançado Trindade appends a separate opinion to the Order of the Court; Judge Bhandari appends a declaration to the Order of the Court.
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