The Right to Consular Access in Light of Kulbhushan Jadhav Case

I. Introduction

In the sphere of consular access, it is well manifested on the grounds of humanitization of International law that as a process and through the mandates of provisions of International treaties, the consular access must be granted to the individuals. As per the verdict of International Court of Justice in the case of Germany v. United States of America³, it was held that Article 36 of the Vienna Convention on Consular Relation grants an inalienable right⁴ to consular access to an individual⁵ who has been arrested in a foreign country. Article 36 of the said Convention gives rise to many unclear issues like whether Article 36 vests the rights to an individual of a signatory state, whether a private individual can enforce the rights himself, whether internal procedural statutes preside the rules given under this Convention.

Evidently, the U.S Courts have not laid much importance to Article 36 of the said Convention, which has majorly given rise to the conflict in interpretation of the obligations created by the said Convention. One case has mis-interpreted the term “notification of the diplomatic representation,” rather than stating it as “notification and option of consular access for denied foreign national himself”⁶. As per the landmark judgment of LaGrand the position of this Court at this point has been quite settled. The Court has made it clear that the said provision of Vienna Convention “creates individual rights” to be informed without any further delay that they are entitled to access consular help if they want to, also it adds that this provision enables the foreign nationals in securing their own private counsels rather than being assisted through state appointed counsels.⁷ Also the court protected the petitioner by emphasizing that if any state failed to inform about the right to consular access then that state cannot plead waiver as a defense. All these show that providing protection to foreign nationals as per the prevalent criminal justice delivery system is a hard nut to crack. It is feared that xenophobia will infect not only the culture and system of our society rather our legal system as well.

Similarly, there is a burning issue of consular access which was currently faced by India in Kulbhushan Jadhav case. The quick and reactive decision of International Court of Justice has raised many questions as to morality and sovereignty of one nation.⁸ The judgment delivered in the said case was considered as a moral victory by the Indians and the same time it was considered a blatant miscarriage of justice by Pakistanis. Basically before jumping directly on the legal nature involved in the case the author has brought the aspect of morality into picture. While interpreting the rights, the first thing that has to be considered under such circumstance is whether the individual who has been detained is given proper treatment, under the control of country that has arrested. Before complying with the provisions of International Conventions the country must meet the requirements of right to equality which is the fundamental right of any citizen and thereby India has considered the judgment of Kulbhushan Jadhav in consonance with the mandates a thereby justified the aspect of morality.

II. Kulbhushan jadhav case and the legal effect of international convention

Facts of the case in relation with the legal issues:

An Indian national called Kulbhushan Jadav was detained in Pakistan for being the spy for Indian intelligence services without giving him the right to consular access. He was sentenced to death penalty by the Pakistan Military Court against which he filed a case in International Court of Justice. Even the Indian government feared the execution, and thereby called for an urgent and emergency hearing. The 11-Judges Bench of ICJ in the year 2017 decided that the execution shall be on hold till a final verdict is passed. Basically India demanded the access to Jadhav though Pakistan refuted the same and others on certain grounds.

On one hand Pakistan argued that this doesnot fall within the jurisdiction of the ICJ, whereas India defended saying that the dispute falls within its jurisdiction within the purview of Vienna Convention of Consular Relations. Now since India and Pakistan are signatories to the “Optional Protocol to the Vienna Convention on Consular Relations” since 1977 and 1976 respectively in order to have permanent settlement of disputes. As per Article 1 of the “Optional Protocol to the VCCR” clearly states that “disputes arising out of the interpretation or application of the VCCR shall lie within the compulsory jurisdiction of the International Court of Justice”. Therefore, it is very clear that there is no question on jurisdictional issue and it is quite obvious that any dispute arising between the parties to the treaty would be subjected to the jurisdiction ICJ.⁹

Also the said dispute is directly related to Article 36¹⁰ of the said Convention, therefore the parties are supposed to abide by the provisions of VCCR and thus application of Article 1 also holds good, hence conferring the jurisdiction over ICJ on such matters

The arguments against this contention as raised by the Pakistan is that such a provision can not be applied to the person who are charged for terrorism or espionage and therefore the provision would not apply to the case in hand.

The court while ruling in favor of India held that there is no such exclusion expressly mentioned under the Convention and therefore the ICJ is free to exercise its jurisdiction in the case at hand. Further India also has pleaded to declare the death sentence as illegal due to clear violation of the provisions of domestic laws and other international laws relating to fair trial.

Pakistan has put forward the contention 2008 Bilateral Agreement between the two countries and according to them this agreement would declare the VCCR inapplicable, to which India responded that firstly, that agreement was not registered with UN and thereby it would only have a persuasive value and also that such an agreement in any way does not ruke out the application of VCCR and also stated that therefore, ICJ has complete jurisdiction in this case.

Principle of natural justice:

Under no circumstances, a person or a country is allowed to bypass the principle of natural justice. The core element of principle of natural justice is that “nobody should be condemned unheard” and in the instant case in hand there was sheer violation of alleged natural justice as the detained person was not given a chance to have right to consular access as a matter of right. Also it was claimed that his trial of bereft of any substantial evidence. In order to fulfill the requirement of the principle of natural justice the Court has ordered the review in order to examine the procedure involving free trial, thereby the strengthening the concept of right to consular access and has treated its essence as sacrosanct and not subjected to exceptions.¹¹ After the judgment of ICJ in 2019, it is seen currently that the Indian national has refused to file a review of his case rather he wants to go for mercy which is clearly indicating his reservations to implement the order of the ICJ in true sense. On one hand, Pakistan is stating it to be his own move; India claims it to be a coerced act. If the claims asserted by India are found to be true then again there is going to be failure in implementing the principle of natural justice. Therefore, in order to avoid the miscarriage of justice the case must be given a closer and intricate look and the compliance of all the provisions of domestic as well as international conventions and statutes must be given proper attention to.

III. Conclusion and analysis

So, the author, while going through the facts of the instant case and applying the said facts to the provision available on record to us, has drawn the conclusion that when two countries have signed a treaty it ratifies that treaty and becomes the party to the Convention and thereby becomes bound to that treaty, thereby conforming the principle of pacta sunt servanda, which in its literal means explains that “every treaty that is in force would be binding upon the parties to it and must be performed by the parties in good faith”.

Also, by going through the entire statutes available, documents on record and facts in hand it is well analyzed that the judgment of ICJ was appropriate and in consonance to existing international norms.

Moreover, it could be ultimately concluded by the author that considering the Vienna Convention on Consular Relations and the fact that both the countries were the party to the treaty it is expected that both the countries would work in consonance with the provisions and in good faith, thereby avoiding the miscarriage of justice and conforming with the principle of criminal jurisprudence that “hundred guilty person could be set free but not one innocent person should be convicted”.

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IV. Bibliography:

Case Laws-

1. Germany v. United States of America, I.C.J. 2001 I.C.J. 466.

2. United States v. Li, 206 F.3d 56, 63-64 (1st Cir. 2000)

3. United States v. Emuegbunam, 268 F.3d 377, 386 (6th Cir. 2001)

Journals:

1. Cara H. Drinan, Article 36 of the Vienna Convention on Consular Relations: Private Enforcement in American Courts after LaGrand, 54 STAN. L. REV. 1303 (2002)

2. Pemmaraju Sreenivasa Rao, The Jadhav case (2017): India and Pakistan before the International Court of Justice, Indian Journal of International Law volume 56, at 79–403 (2016)

E-resources:

1. Christina M. Cerna, The Right to Consular Notification as a Human Right, HeinOnline, 31 Suffolk Transnat'l L. Rev. 419 (2007-2008).

2. Joyeeta Banerjee & Rajdeep Banerjee, Consular Access indispensible, The Statesman

3. Veera Nath, Denial of Consular Access Gives Jurisdiction To ICJ-Kulbhushan Jadhav Case, Krishnomics Legal

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Footnotes

1. Author is a LL.M. student at National University of Study and Research in Law (NLU Ranchi), India.

2. Author is a LL.M. student at National University of Study and Research in Law (NLU Ranchi), India.

3. I.C.J. 2001 I.C.J. 466. ↩

4. Christina M. Cerna, The Right to Consular Notification as a Human Right, HeinOnline, 31 Suffolk Transnat'l L. Rev. 419 (2007-2008). ↩

5. United States v. Li, 206 F.3d 56, 63-64 (1st Cir. 2000) ↩

6. United States v. Emuegbunam, 268 F.3d 377, 386 (6th Cir. 2001) ↩

7. Cara H. Drinan, Article 36 of the Vienna Convention on Consular Relations: Private Enforcement in American Courts after LaGrand, 54 STAN. L. REV. 1303 (2002), The Catholic University of America, Columbus School of Law ↩

8. Pemmaraju Sreenivasa Rao, The Jadhav case (2017): India and Pakistan before the International Court of Justice, Indian Journal of International Law volume 56, at 79–403 (2016) (Aug. 09, 2017) ↩

9. Veera Nath, Denial of Consular Access Gives Jurisdiction To ICJ-Kulbhushan Jadhav Case, Krishnomics Legal (8 June, 2017). https://www.mondaq.com/india/international-courts-tribunals/600364/denial-of-consular-access-gives-jurisdiction-to-icj-kulbhushan-jadhav-case ↩

10. Art. 36 of the VCCR: “If any foreign national is detained or arrested on criminal or immigration charges, he/she is entitled to be notified about the right to notify the detainee country's consulate of his/her arrest”. ↩

11. Joyeeta Banerjee & Rajdeep Banerjee, Consular Access indispensible, The Statesman (July 26, 2019 1:50 am) ↩