On 17 July 2019, the International Court of Justice (the “ICJ” or the “Court”) issued its judgment in the Jadhav case. This case concerns Mr. Kulbhushan Sudhir Jadhav, a national of the Republic of India (hereinafter “India”), who was arrested by the Islamic Republic of Pakistan (hereinafter “Pakistan”) and was tried and was sentenced to death by Pakistan’s military court for espionage and terrorist activities. India filed in the Registry of the Court an Application instituting proceedings against Pakistan invocating to Article I of the Optional Protocol to the Vienna Convention on Consular Relations 1963 (the Convention) and alleging violations of this convention, in particular, the obligation to provide consular access (Article 36). Pakistan’s main response to this claim is that under international law, there is no consular access for persons accused of espionage and terrorist activities.
In this post, I will discuss the views and interpretations of the Court and the parties to the dispute regarding this claim of Pakistan. I argue that this case proves that there is consular access for persons accused of espionage and terrorist activities.
Application of the Convention on Consular Relations on spies and terrorists
Pakistan argues that Article 36 of the Convention on Consular Relations, in particular, the obligation to provide consular access (Article 36), does not apply in prima facie cases of espionage and terrorist and customary international law governs these cases in consular relations allows States to make exceptions to the provisions on consular access contained in Article 36 of the Convention (see here, here and here). The Court observes that, when interpreted in accordance with the ordinary meaning to be given to the terms of the Convention in their context and in the light of its object and purpose, Article 36 does not exclude from its scope certain categories of persons, such as those suspected of espionage or terrorist activities. Pakistan, with regard to the allowance to make exceptions to consular access by customary international law, recalls the preamble of the Convention, which affirms that the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention.
According to Pakistan, State practice establishes that at the time of the adoption of the Convention in 1963, there was no rule of customary international law that made consular access obligatory in the case of individuals accused of espionage or terrorist activities and there was a rule of customary international law in 1963 that prima facie cases of espionage or terrorist activities constituted an exception to the right of consular access. The Court responds that Article 36 of the Convention expressly regulates the question of consular access to nationals of the sending State and makes no exception with regard to cases of espionage or terrorist activities. Also, India and Pakistan have been parties to the Convention since 1977 and 1969 respectively, and that neither party attached any reservation or declaration to the provisions of the Convention. The Court, therefore, considers that Article 36 of the Convention, and not customary international law, governs the matter at hand in the relations between the parties, and having reached this conclusion, the Court does not find it necessary to determine whether, when the Convention was adopted in 1963, there existed the rule of customary international law that Pakistan advances (see here).
The Court considers that the application of Article 36 to spies and terrorists is so obvious that even the Agreement on Consular Access between Pakistan and India 2008 cannot change it. According to point (vi) of the Agreement, in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits. According to the Vienna Convention on the Law of Treaties 1969, two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) the possibility of such a modification is provided for by the treaty; or (b) the modification in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.
The Convention on Consular Relations also has a provision on the conclusion of agreements between member states: nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof (Article 73(2)). The Court notes that it is consistent with the Convention on Consular Relations to conclude only subsequent agreements which confirm, supplement, extend or amplify the provisions of that instrument, such as agreements that regulate matters not covered by the Convention. The Court maintains that the parties have negotiated the 2008 Agreement in full awareness of Article 73(2) and consequently, the point (vi) of that Agreement does not, as Pakistan contends, displace the obligations under Article 36 of the Vienna Convention. Focusing on the preamble to the Agreement, which states that the parties were desirous of furthering the objective of humane treatment of nationals of either country arrested, detained or imprisoned in the other country, the Court concludes that the point (vi) cannot be read as denying consular access in the case of an arrest, detention or sentence made on political or security grounds.
Given the importance of the rights concerned in guaranteeing the humane treatment of nationals of either country arrested, detained or imprisoned in the other country, if the parties had intended to restrict in some way the rights guaranteed by Article 36, one would expect such an intention to be unequivocally reflected in the provisions of the Agreement. In other words, the Court is of the view that, as Judge Sebutinde stated in his Declaration, by virtue of an a contrario interpretation, an agreement that purports to negate, limit or derogate from the rights and obligations provided for under Article 36, would be inconsistent with Article 73.
The Court also did not remain silent on Pakistan’s assertion that India’s request for consular access would be considered in the light of the Indian side’s response to Pakistan’s request for assistance in the investigation process and early dispensation of justice. The Court is of the view that the alleged failure by India to co-operate in the investigation process in Pakistan does not relieve Pakistan of its obligation to grant consular access under Article 36 of the Convention, and otherwise, the whole system of consular assistance would be severely undermined.
Some observations on the Court’s judgment
Rejecting Pakistan’s allegations that the Convention on Consular Relations did not apply to spies and terrorists, the Court stated that, by not informing Mr. Jadhav without delay of his rights under Article 36, Pakistan breached the obligations incumbent upon it under that provision, and, by not notifying the appropriate consular post of India in Pakistan without delay of the detention of Mr. Jadhav and thereby depriving India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, Pakistan breached the obligations incumbent upon it under Article 36. Also, the Court declares that Pakistan has breached the obligations incumbent on it under this Article, by denying consular officers of India access to Mr. Jadhav, contrary to their right to visit him, to converse and correspond with him, and to arrange for his legal representation.
Pakistan’s ad hoc judge, Judge Jillani, states, in his dissenting opinion, that the Vienna Convention, having been concluded with the view to contributing to the development of friendly relations among nations, it can hardly be the case that the drafters of that Convention intended for its rights and obligations to apply to spies and nationals of the sending State (India) on secret missions to threaten and undermine the national security of the receiving State (Pakistan). The most appropriate response to this view is the one made by Judge Iwasawa in his Declaration: subsequent to the conclusion of the Convention in 1963, States have concluded a number of anti-terrorism conventions in which they have included the right of a person suspected of terrorism to have access without delay to the representative of the State of which he is a national. Accepting Pakistan’s argument would be very dangerous, because, otherwise, any state can deny the right to consular access by describing the actions of a foreign national as espionage and terrorist activities (see here and here).
The Court’s approach in the Jadhav case and its judgment is similar to two previous cases in which the violation of Article 36 of the Convention on Consular Relations was raised (LaGrand and Avena and Other Mexican Nationals). In Jadhav case, the Court adds to its findings in previous cases that Article 36 of the Convention does not exclude from its scope certain categories of persons, such as spies or terrorists and this Article applies to all nationals of State parties in the territory of other State parties. Also, Consular access is available, even if the nationality of the arrested person is disputed. However, in Jadhav case, the Court does not meet all the demands of the applicant. India requests the court to restrain Pakistan from giving effect to the sentence or conviction in any manner and direct it to release Mr. Jadhav, forthwith, and to direct Pakistan to facilitate his safe passage to India. In the alternative, and if the Court were to find that Jadhav is not to be released, then direct Pakistan to take steps to annul the decision of the military court and direct a trial under the ordinary law before civilian courts, after excluding his confession that was recorded without affording consular access, in strict conformity with the provisions of the International Covenant on Civil and Political Rights 1966, with full consular access and with a right to India to arrange for his legal representation.
The Court recalls that its jurisdiction has its basis in Article I of the Optional Protocol and this jurisdiction is limited to the interpretation or application of the Convention on Consular Relations and the remedy to be ordered in this case has the purpose of providing reparation only for the injury caused by the internationally wrongful act of Pakistan that falls within the Court’s jurisdiction, namely its breach of obligations under Article 36 of the Convention. The Court reiterates that it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 and it is not to be presumed that partial or total annulment of conviction or sentence provides the necessary and sole remedy in cases of violations of this Article. The Court considers the appropriate remedy in this case, consistent with the approach that the Court has taken in cases of violations of Article 36, to be effective review and reconsideration of the conviction and sentence. This approach is in line with the principle that the Court does not have the function of a criminal appellate court. In the LaGrand and the Avena and Other Mexican Nationals case, the Court also affirmed that the function of this Court is to resolve international legal disputes between States, and not to act as a court of criminal appeal.
The obligation to provide consular access for a foreign national is a general obligation for States Parties to the Convention on Consular Relations, and the type of the committed crime by that national does not affect this obligation. In Jadhav case, the Court notes that this obligation, which is inferred from the interpretation of Article 36 of the Convention, is not conditional on the performance of certain actions including the assistance in the investigation process by her/his State of nationality, and this obligation cannot be disregarded even by concluding a bilateral agreement in the relations between the parties to the Convention. Following the Court’s Judgment, Pakistan’s Foreign Office said Islamabad abides by all its international obligations, and this applies to the ICJ judgment in the case of Jadhav. India and Pakistan disagree on some issues related to the manner in which the Court’s judgment should be implemented, including the effective review and reconsideration of the conviction and sentence of Jadhav by Pakistan and the appointment of a lawyer for Jadhav by India (see here). However, they may return to the Court, as in the Avena case, for ascertaining the meaning or scope of the judgment (see here).
Vahid Bazzar is a Ph.D. graduate in international law, Allameh Tabataba’i University, Iran.