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Consular Access indispensible

The judgment of the International Court of Justice reaffirms wellestablished principles, say JOYEETA BANERJEE & RAJDEEP BANERJEE.


India and Pakistan have locked horns before the World Court on many occasions. This time it was related to an Indian national, Kulbhushan Jadhav, who has been sentenced to death by a military court in Pakistan for alleged espionage activities which India strongly rejects. The main bone of contention between the parties was the consistent refusal of Pakistan to allow consular access to Jadhav by consular officers of India which was in flagrant violation of provisions of Vienna Convention on Consular Relations, 1963 (VCCR).

Article 36 of VCCR deals with communication and contact with nationals of the sending State (here India). Para (a) declares that consular officers are free to communicate with nationals of the sending State and to have access to them. Under para (b), competent authorities of the receiving State (here Pakistan) have to, without delay, inform the consular post of the sending State if a national of that State is arrested. Any communication addressed to the consular post by the person arrested has also to be forwarded by the authorities of the receiving State without delay. This para also mandates that authorities of the receiving State inform the person concerned (here Jadhav) without delay of his rights to ask for such assistance. Consular officers have also been provided the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation

India primarily alleged that Pakistan failed to inform India, without delay, of the arrest and detention of Jadhav and further it failed to inform Jadhav of his rights under Article 36 of the VCCR. Pakistan further repeatedly declined access to Jadhav by consular officers of India resulting in grave injustice calling for the World Court’s intervention.

The death sentence to Jadhav was given by the Field General Court Martial of Pakistan and was confirmed by the Chief of Army Staff. Jadhav’s appeal to the Military Appellate Court has been rejected. Jadhav then made a mercy petition to the Chief of Army Staff. India sought to challenge the sentence of the Military Court as it was argued that it was in gross violation of the Vienna Convention rights under Article 36 as well as elementary human rights of Jadhav. It further contended that the action was in flagrant breach of Article 14 of the 1966 International Covenant on Civil and Political Rights.

Regarding the jurisdiction of the World Court, Article I of the Optional Protocol provides that disputes arising out of the interpretation or application of the Convention lie within the compulsory jurisdiction of ICJ and can be brought before the Court by an application made by any party to the dispute being a Party to the Protocol. Hence jurisdiction of the Court was evident.

Various allegations were made by Pakistan against India including breaches of India’s obligations under Security Council resolution 1373 as well as India’s failure to respond to Pakistan’s request for mutual legal assistance with its criminal investigations into Jadhav’s alleged espionage and terrorism activities. But the Court observed that these allegations could not be invoked as a ground for inadmissibility of the petition. It stated that even if the applicant’s conduct is not beyond reproach in any particular case, the Court had earlier held In the case concerning Certain Iranian Assets (Islamic Republic of Iran v. USA)(2019) that it would not be sufficient per se to uphold the objection to admissibility raised by the Respondent on the basis of the ‘clean hands’ doctrine.

Further rejecting the request of Pakistan to dismiss the Indian claim on the ground of abuse of process, ICJ observed that only in very exceptional circumstances can it reject a claim on the ground of abuse of process and this case was certainly not one of them. Quoting Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment (2019) and Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment (2018) it observed that for rejecting a claim, very clear evidence of abuse of process should be on record which was not so in Jadhav’s case.

Whether espionage cases fall outside the scope of protection of Article 36 was the primary issue to be decided by the Court. Pakistan argued that the Vienna Convention did not apply in cases of individuals who were alleged to be involved in espionage activities. It sought to justify its stand by referring to the travaux préparatoires of the Convention by suggesting that espionage cases could not come within the Convention as these cases constituted a justifiable limitation to a sending State’s freedom to communicate with its arrested nationals in the receiving State. ICJ observed that it would interpret the provisions of VCCR according to the customary rules of treaty interpretation. Provisions of the VCCR must be interpreted in good faith in accordance with the ordinary meaning to be given to their terms in their context and in light of the object and purpose of the Convention. Supplementary means of interpretation including the preparatory work of the Convention and the circumstances of its conclusion can only be considered if there is an obscurity or for avoiding a totally absurd result. The ICJ observed that Article 36 as well as other provisions of the Vienna Convention do not contain any reference to cases of espionage. Article 36 is quite general in scope and nowhere does it seek to exclude from its scope certain categories of persons including espionage cases.

The World Court also extensively discussed the discussions of the International Law Commission on the topic of “consular intercourse and immunities”. It observed that there was no suggestion on non-applicability of Article 36 in espionage cases. It reproduced the remark of the Chairman of the Commission in regard to cases of espionage who had observed that ‘a statement of a general principle of law could not possibly cover all conceivable cases. If the Commission went into the question of whether cases of espionage should be made an exception the whole principle of consular protection and communication with nationals would have to be re-opened.’

Pakistan unsuccessfully tried to put emphasis on a 2008 agreement titled ‘Agreement on Consular Access’ with India wherein it is stated that ‘The Government of India and the Government of Pakistan, desirous of furthering the objective of humane treatment of nationals of either country arrested, detained or imprisoned in the other country, have agreed to reciprocal consular facilities’. Point 6 of the Agreement declares that ‘in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits’. Regarding this Agreement, ICJ rejected the contention of Pakistan that it is the 2008 Agreement and not VCCR that governs the question of consular access between India and Pakistan. It rejected Pakistan’s contention that the nature and circumstances of Jadhav’s alleged espionage and terrorist activities brought his arrest squarely within the national security qualification.

Looking into the preamble of the Agreement wherein the Parties declared that they were “desirous of furthering the objective of humane treatment of nationals of either country arrested, detained or imprisoned in the other country” as well as the language of the Agreement, it came to the conclusion that the words of the Agreement never intended to restrict in any way the rights guaranteed by Article 36. Had there been any intent on denying consular access in the case of an arrest, detention or sentence made on political or security grounds, then it would have been expressly reflected in its provisions.

Though ICJ in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America)(2004) observed that ‘without delay’ is not necessarily to be interpreted as ‘immediately’ upon arrest”, ICJ rejected the contention of Pakistan that immediate consular access was not required by Article 36, para 1 (b). The delay of three weeks between Jadhav’s arrest and the notification made to India was held by the Court to constitute a grave breach of the obligation to inform without delay. It observed that the phrase ‘without delay’ can indicate different meanings under different circumstances. If the foreign nationality of the detained person was clear, then even a delay of just 40 hours has been held bad in law whereas if the foreign nationality was not clear a delay of even five days has not been wrong.

The Court held that the alleged failure by India to co-operate in the investigation process in Pakistan did not relieve Pakistan of its obligation to grant consular access nor did it justify Pakistan’s denial of access to Jadhav by consular officers of India. Even if Jadhav was allowed to choose a lawyer for himself, it did not dispense with the consular officers’ right to arrange for his legal representation. There can be no basis under the Vienna Convention for a State to condition the fulfilment of its obligations under Article 36 on the other State’s compliance with other international law obligations.

But ICJ refused to accept India’s contention that a relief by way of review and reconsideration was highly inadequate. India had argued that Pakistan’s criminal justice system by way of trial in the military courts did not satisfy the minimum standards of due process in its application to civilians and hence review was inadequate. It further sought to buttress its argument by referring to the judgement titled Said Zaman Khan et al. v. Federation of Pakistan (Pakistan Supreme Court, 2016) wherein it was held that the scope of judicial review of convictions by the military courts was very narrow and that too only on certain limited grounds.

The Court refusing to annul the conviction of Jadhav remarked that the internationally wrongful act of Pakistan that fell within the Court’s jurisdiction was the breach of obligations under Article 36 of the Vienna Convention on Consular Relations and not the conviction and sentence of Jadhav. Reiterating its earlier judgment in the Avena case, ICJ observed that clemency process cannot be sufficient in itself to serve as an appropriate means of review and reconsideration. It can only supplement judicial review and reconsideration, in particular where the judicial system has failed to take due account of the violation of the rights set forth in the Vienna Convention.

Deliberating on effective review and reconsideration process, ICJ declared that the review should consider effectively the violation of the rights under Article 36, para 1 of the Vienna Convention. Also, the implications for the principles of a fair trial has to be properly examined. Such review should include all aspects including prejudice and evidentiary weight as well as the right of defence. On the means to carry out such effective review and reconsideration, the choice has been left to Pakistan subject to such safeguards including by enacting appropriate legislation. The judgment has once again clarified that the right of consular access is a vital and inalienable right and it cannot be refused under the guise of allegations of anti-national or espionage activities. This case has reiterated the legal position that right of consular access is a sacrosanct right not subject to exceptions.

The writers are Mumbai-based advocates and legal consultants.