## Facts

- Kulbhushan Sudhir Jadhav, asserted by India to be an Indian national, was taken into custody by Pakistani authorities on 3 March 2016 under disputed circumstances.
- Pakistan informed India of the arrest on 25 March 2016 and later released a confession video.
- On 10 April 2017, Pakistan announced that a military court convicted Jadhav of espionage and sabotage-related offenses and sentenced him to death.
- On 8 May 2017, India instituted proceedings alleging violations of Article 36 of the Vienna Convention on Consular Relations (VCCR) and sought provisional measures to prevent execution.
- On 18 May 2017, the ICJ ordered Pakistan to take all measures at its disposal to ensure Jadhav was not executed pending final decision.
- After merits hearings in February 2019, the ICJ issued judgment on 17 July 2019.

## Issues

1. Whether the ICJ had jurisdiction under the Optional Protocol to the VCCR and whether Pakistan’s admissibility objections (abuse of process/rights; alleged illegality by India; nationality doubts) barred the claims.
2. Whether Article 36 VCCR applies when the detainee is accused of espionage and whether a 2008 bilateral consular-access agreement could modify or displace Article 36 obligations.
3. Whether Pakistan violated Article 36 by failing to (a) inform Jadhav without delay of his consular rights, (b) notify India without delay, and (c) grant consular communication, visits, and assistance in arranging legal representation.
4. What remedy is required for Article 36 violations in a capital case: annulment/release, or “effective review and reconsideration,” and whether a stay of execution is required.

## Decision

- The ICJ unanimously held it had jurisdiction under the Optional Protocol and rejected Pakistan’s admissibility objections.
- The ICJ held Article 36 VCCR applied notwithstanding espionage allegations and that the 2008 bilateral agreement could not reduce Article 36 rights.
- The ICJ found Pakistan breached Article 36 by:
  - failing to inform Jadhav without delay of his Article 36 rights;
  - notifying India about three weeks after arrest, which was not “without delay”; and
  - denying consular access and communication and the ability to arrange legal representation.
- The ICJ rejected India’s request for annulment of the conviction, release, and safe passage, but ordered Pakistan to:
  - inform Jadhav without further delay of his Article 36 rights;
  - grant Indian consular officers access and allow arrangement of legal representation; and
  - provide, by means of its choosing, effective review and reconsideration of the conviction and sentence, giving full weight to the Article 36 violations.
- The ICJ stated a continued stay of execution is an indispensable condition for effective review and reconsideration.

## Legal Principles

- Disputes concerning interpretation or application of the VCCR fall within the ICJ’s compulsory jurisdiction under the VCCR Optional Protocol.
- Article 36 VCCR applies to detained foreign nationals even when the receiving State alleges espionage; there is no implied espionage exception.
- Bilateral consular arrangements may complement the VCCR but may not diminish rights guaranteed by Article 36.
- “Without delay” in Article 36 requires prompt notice to the sending State and prompt advice to the detainee of consular rights; multi-week delay violates the obligation.
- Article 36 protects the sending State’s right to communicate with and visit its national and to assist in arranging legal representation; alleged noncooperation in an investigation does not excuse noncompliance.
- The appropriate reparation for Article 36 violations in a capital case is effective review and reconsideration of the conviction and sentence, with a stay of execution to ensure the remedy has practical effect.

## Conclusion

The ICJ held Pakistan violated Article 36 of the VCCR by delaying notice, failing to advise Jadhav of consular rights, and denying consular access, and it ordered consular access plus effective review and reconsideration of the conviction and death sentence under a continued stay of execution.


Jadhav Case (India v. Pakistan), 2019 I.C.J. 418 (I.C.J. 2019)