This paper discusses the Jadhav case submitted to the ICJ by India against Pakistan on 8 May 2017. The case concerns the alleged violation of the 1963 Vienna Convention on Consular Relations with regard to the detention and trial of an Indian national who was sentenced to death by a Pakistani military court. Pakistan claimed to have applied the 2008 bilateral Agreement on Consular Access, providing that “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”. Nonetheless, according to India, the bilateral Agreement cannot be invoked before the ICJ, as it was not promptly registered with the UN Secretariat, inconsistently with Article 102 of the UN Charter. The author does not share such a formalistic interpretation of Article 102. This provision aims at discouraging secret treaties. Since the bilateral Agreement has never been secret, it could be invoked before the ICJ regardless of its registration. Hence, it was not necessary for Pakistan to register the bilateral Agreement after India had instituted proceedings before the ICJ.

Sull'obbligo degli Stati di registrare gli accordi internazionali presso il segretariato generale delle Nazioni Unite: il caso Jadhav

Pascale G
2017

Abstract

This paper discusses the Jadhav case submitted to the ICJ by India against Pakistan on 8 May 2017. The case concerns the alleged violation of the 1963 Vienna Convention on Consular Relations with regard to the detention and trial of an Indian national who was sentenced to death by a Pakistani military court. Pakistan claimed to have applied the 2008 bilateral Agreement on Consular Access, providing that “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”. Nonetheless, according to India, the bilateral Agreement cannot be invoked before the ICJ, as it was not promptly registered with the UN Secretariat, inconsistently with Article 102 of the UN Charter. The author does not share such a formalistic interpretation of Article 102. This provision aims at discouraging secret treaties. Since the bilateral Agreement has never been secret, it could be invoked before the ICJ regardless of its registration. Hence, it was not necessary for Pakistan to register the bilateral Agreement after India had instituted proceedings before the ICJ.
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/10278/3724831
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