In the present case, India had filed an application instituting proceedings
against Pakistan in International Court of Justice for the Violation of ‘Article
36 of the Vienna Convention on Consular Relations (VCCR)’ that India’s consular
officers had been denied access to Mr. Jadhav while he was in custody, detention
and imprisoned, and had been unable to converse and correspond with him, or
arrange for his legal representation and demanded for the immediate suspension
of his Death sentence. Thus the dispute between the two countries concerns the
question of Consular Assistance with regard to the arrest, detention, trial and
sentencing of Mr. Jadhav.
It was contended by Pakistan that they had arrested Jadhav on 3rd March 2016 in
Balochistan after he entered from Iran, and he was a spy from RAW (Research and
Analysis Wing) of India planning for the terrorist attack in Pakistan. Pakistan
relied upon a bilateral agreement of 2008 on Consular Access between him and
India and in the present situation, instead of the Vienna Convention on Consular
Relations (VCCR). And that Agreement exempts Spies from being given the same
privileges that signatories to the Vienna Convention on Consular Relations (like
India and Pakistan) must grant each other’s citizens in jail.
International court of Justice (ICJ) held that the Pakistan had acted in
violation of International norm of Consular access that is Vienna Convention on
Consular Relations (VCCR). By its order the court had stayed the Death sentence
of Mr. Jadhav by Pakistan military court and directed Pakistan to grant Consular
Assistance as per Article 36 of VCCR to Mr. Jadhav and the bilateral
Agreement of 2008 constitutes a subsequent agreement within meaning of Article
73, paragraph 2 of Vienna Convention and does not displace obligations under
The India’s request to Court to direct Pakistan to take steps to
annul the decision of the military court and release Mr. Jadhav and facilitate
his safe passage to India, the Court found that the submissions made by India
could not be upheld.
A Consul is an official agent or representative of one state who has been
assigned to reside in another state to protect the Sate’s interests and its
citizens. The privileges and obligations of the States with regard to the
Consular officials they send or receive are dealt under Consular relations. It
is one of the means by which a State defends their citizen’s interest abroad,
especially their nationals who are arrested or detained for violating the
Criminal Laws of other country.
By a series of effort of International Law Commission, and the Vienna Conference
on Consular Relations, the Vienna Convention on Consular Relations, 1963 comes
into existence and progressively developed Customary International Law on
Consular immunities. At present, there are 48 signatories and 180 parties to the
Convention. Its key objective was to protect the interests of a State and its
nationals in the territory of another State while promoting relations amongst
States. Both Pakistan and India are members of this convention and had ractified
it on 1969 and 1977 respectively and its Optional protocol without any
Article 36 of the Vienna Convention, 1963 provides that if any foreign citizen
is arrested or detained on criminal charges of that country, then that person is
entitled to be notified about the right to notify the detainee country’s
consulate of his arrest. This article also provides that for a regular
consultation with the consular officials during the detention and any trial of
the accused. The essential principle of this Article is to provide Communication
between a National and his country’s officials, in the Foreign State.
The International Court of Justice had delivered the judgement with an enormous
Majority of 15:1, the only dissenting Judge was an Ad hoc judge Jilani. In his
dissenting Judgement, Justice Jilani came up with a conclusion which is not the
main dispute between the parties. He rather dealing with the question of law and
discussing international Law which is put before the ICJ, concerned with those
questions which are dwelled upon the issues like the confession of Mr Jadhav,
Kashmir and other political related issues to prove his instance.
The Judgement of Majority deals mainly with the question of Violation of
Article 36 of the Vienna Convention on Consular Relations (VCCR). India had
argued for a remedy under Article 1 of Optional Protocol concerning the
Compulsory settlement of disputes, 1963 to annul the decision of Pakistan
military court and Pakistan has also violated Mr. Jadhav’s “elementary human
rights”, “which are also to be given effect as mandated under Article 14 of the
1966 International Covenant on Civil and Political Rights” and release Mr.
Jadhav to which the court has rightly observed that its:
“Jurisdiction is limited
to the interpretation or application of the Vienna Convention and does not
extend to the India’s claims based on any other rules of the International Law”.
The author is of the view that the judgement of ICJ is well-balanced where the
court has limited its interference only till its jurisdiction, given a judgement
in line with the principles of International Law.
The judgement of ICJ in this case is well in line with the previous judgements
of this hon’ble court as the remedy granted in the instant case is similar to
that remedies given by the court in case of La Grand (Germany Vs United States
) and Avena Case (Mexico Vs United States of America)
, which had
involved the same question of law.
In 2004, ICJ had ruled in the Avena
that US had violated Vienna Convention on Consular Relations (VCCR) by not
providing consular access to Mexico for its 50 nationals who were on death rows
in various American states. Similarly in La Grand case of 2001, a suit against
the United States was filed by Germany in the International Court of Justice,
claiming the United States law enforcement agent failed to advice its citizen
upon their arrests of their rights under the Vienna Convention of Consular
The court held that the meaning adduced to the phrase “authorities
shall inform the person concerned without delay of his rights under this
subparagraph” of Article 36 suggests that the rights to be informed of their
rights under the Convention is an individual right of every national of a state
that is party to the Convention.
In both the judgements, ICJ held that the
United States was in breach of its obligations provided under the Article 36 of
the Vienna Convention on Consular Relations and directed it to give “effective
review and reconsideration” to sentences and convictions of Foreign arrested
nationals. The same has been held in the Jadhav Case, for “review and
reconsideration” of the conviction and sentencing of Mr. Jadhav by the Pakistani
government as it was held in the above-mentioned two cases.
Pakistan’s counter memorial had highlighted the three basic objections to the
First of all, it was contended that the case of Mr. Jadhav
brought by India before ICJ is an abuse of the Court’s process as India in
reality pursuing different purposes which takes the application outside the
scope of the provision.
Secondly, Pakistan argued that the Mr. Jadhav case
should be dismissed on the ground of abuse of rights. It is contended that the
India is not able to prove Indian nationality of Mr. Jadhav. And Pakistan also
claimed that India has violated the international obligations under the United
Nation Security Council Resolution 1373 0f 2001 by authorizing Jadhav to
continuing with espionage and terrorist activities.
Thirdly Pakistan contended
that India’s petition was based upon the India’s own misconduct and relying on
the Doctrine of “Clean Hands” and the principles of “ex turpi causa non oritur
actio” and “ex juria jus non oritur” and hence the case must be
The ICJ in its judgement held that firstly it had complete jurisdiction over
cases falling under the ‘Article 1 of Optional Protocol to Vienna Convention on
Consular Relations concerning the compulsory settlement of Disputes, 1963’.
Therefore, rejecting the objection of Pakistan that India has abused its
procedural rights. On the question of Mr. Jadhav nationality, the court held
that there is no room for doubt that Mr. Jadhav is not an Indian national.
court also rejected the other objections raised in the second objection by
Pakistan on account of holding no “merit”. Dealing with the third contention of
Pakistan, the court held that it did not find any unlawful activity or conduct
of India, thereby rejecting the Pakistan’s ‘Clean Hands’ doctrine.
Pakistan could not provided with the explanation of how India’s unlawful
conduct, that is, the alleged action of espionage prevented Pakistan from
providing consular access to Mr. Jadhav. Thus the court did not uphold
Pakistan's objection based on the "ex turpi causa non orituractio
Furthermore the Court noted that the concept of ex injuria jus non oritur, which
specifies that improper activity cannot change the statute applied in the
relations between the parties, is equally insufficient for the circumstances of
the case. The court further added that there is no mention of any alleged
exception of espionage in the Vienna Convention as Pakistan claimed. And the
bilateral Agreement of 2008 constitutes a subsequent agreement within meaning of
Article 73, paragraph 2, of Vienna Convention and does not displace obligations
under Article 36. ICJ stated that Pakistan is failed to follow the Vienna
Convention on the following grounds:
- Jadhav was not informed of his rights after he was arrested
- Pakistan failed to inform India, without delay, of the arrest and
detention of Jadhav.
- Pakistan also failed to inform India’s consular post of arrest and
detention of Jadhav, where Pakistan made the notification three weeks after the
arrest was made.
- Pakistan failed to provide consular access to Jadhav
Thus the court ordered that Pakistan is under international obligation “to cease
internationally wrongful act of a continuing character”. Mr. Jadhav should be
informed of his rights and the Indian Consular officers must be given access to
the Jadhav and arrange for his legal representation.
Pakistan will review and
rethink Jadhav's conviction and sentencing and will pass relevant laws if
applicable such that such a review can be carried out in a free and fair manner.
The ICJ put a stay on the execution until the moment when Pakistan takes those
action and the confusion persists in this situation.
The author is of the view that the court decision is very balanced, it is
neither win nor loss for any side in this case. And the trial of Mr. Jadhav is a
long way to go. The court order founding Pakistan guilty of violating the
Article 36 of the Vienna Convention and ordering Pakistan to give access of
Indian Consular officers to Mr. Jadhav and arrange for his legal representation
and an stay on his execution till he gets the opportunity of having a legal
proceeding, in a free, fair and transparent manner with Consular access is a win
for India. But still Pakistan had the discretion to decide in what manner it
wants to review Mr. Jadhav’s conviction case and to secure his Vienna Convention
right. It has to be seen in which manner and to what extent Pakistan will
provide Consular access to Mr. Jadhav and how it will implement this order.
- Article 36 Communication and contact with nationals of the sending State
of VCCR, 1963 available
- Article 73 Paragraph 2 of VCCR, 1963 read as: Nothing in the present
Convention shall preclude States from concluding international agreements
confirming or supplementing or extending or amplifying the provisions thereof.
- https://www.icj-cij.org/en/case/168 last accessed on 26th Nov. 2020
- https://lexlife.in/2020/05/25/vienna-convention-on-consular-relations-1963/ last
accessed on 26th Nov 2020
- Article 1: Disputes arising out of the interpretation or application of
the Convention shall lie within the compulsory jurisdiction of the
International 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, available at https://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963_disputes.pdf
- 2001 I.C.J.466
- (2004) ICJ Rep 12
- https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-7/lagrand-case-germany-v-united-states/ last
accessed on 27th Nov. 2020
- The United Nations Security Council Resolution 1373 of 2001 states that
UN member states were encouraged to share their intelligence on terrorist
groups in order to assist in combating international terrorism. The
resolution also calls on all states to adjust their national laws so that
they can ratify all of the existing international conventions on terrorism.
States “should also ensure that terrorist acts are established as serious
criminal offences in domestic laws and regulations and that the seriousness
of such acts is duly reflected in sentences served”, available at https://www.unodc.org/pdf/crime/terrorism/res_1373_english.pdf
- Ex turpi causa non oritur actio” means of an illegal cause there can be
- Ex injuria jus non oritur” means law (or right) does not arise from
- Dr. Dhrubajyoti Bhattacharjee, The Verdict of ICJ on the Kulbhushan Jadhav
Case available at