On 17 July 2019, the ICJ rendered its judgment in Jadhav. In brief, this case involved an Indian national (Mr Jadhav) who was arrested, tried, and convicted by Pakistan for espionage and terrorism offences and sentenced to death. India made repeated requests to Pakistan to allow consular access to Mr Jadhav during his period of detention, all of which were denied. Before the ICJ, India claimed that Pakistan’s conduct violated the Vienna Convention on Consular Relations (VCCR) 1963.
Freya Baetens’ post on this blog provides a useful overview of the ICJ’s judgment. Yet, an aspect of the ICJ’s decision that requires further analysis is the manner in which the Court approached the status of espionage under consular law and customary international law. The interaction between espionage and international law was relevant to this dispute to the extent that Pakistan averred before the Court that, while Article 36 VCCR grants nationals the right to access consular assistance from their home state while detained by a foreign power, states can deny access where the national in question is accused of espionage.
Article 36 VCCR does not expressly state that the right to access consular assistance can be refused where a national is accused of espionage. Nevertheless, Pakistan justified its decision to refuse consular access to Mr Jadhav on three grounds: (1) an espionage carve-out to Article 36; (2) developments in customary international law subsequent to the conclusion of the VCCR; and (3) the 2008 Agreement on Consular Access between Pakistan and India prevails over the VCCR, which allows states to deny consular access where necessary to maintain national security. While the ICJ rejected all three of Pakistan’s submissions, this post focuses specifically upon the Court’s consideration of grounds one and two.
- The Espionage Carve-Out
By citing the object and purpose of the Convention as well as its travaux préparatoires, Pakistan argued that Article 36 VCCR was never intended to apply to spies. To support its interpretation, Pakistan relied upon the discussions of the International Law Commission on the topic of ‘consular intercourse and immunities’ (for these discussions, see here at para 47 et seq). For Pakistan, the Commission’s discussions revealed that the question of whether spies can access consular assistance was ‘too hot to handle’ and was therefore ‘taken off the table’ (para 290, Written Proceedings), with the Commission instead preferring to maintain a ‘studied ambiguity’ on the issue of espionage (para 92, Oral Proceedings). As a result, Pakistan argued that the failure of the drafters of Article 36 to integrate an espionage exception into this provision does not mean that they intended to confer upon individuals accused of spying the right to access consular assistance.
For good reasons, the Court gave short shrift to Pakistan’s interpretation of Article 36 VCCR. First, the Court noted that the object and purpose of the Vienna Convention is ‘to contribute to the development of friendly relations among nations’. For this objective to be realised, the Court determined that all nationals must be permitted to access consular assistance from their home state when detained by a foreign power, even in the case of spying. Second, the Court appears to have agreed with India’s assertion that the issue of espionage was actually ‘very much on the table’ during negotiations (para 95, Oral Proceedings) and thus ‘present to the minds of those who negotiated the Vienna Convention’ (para 89, Oral Proceedings). Hence, and contrary to what Pakistan had claimed, the failure of the drafters to build an espionage exception into Article 36 does in fact indicate that they intended for the protection afforded by this provision to be available to all individuals, including spies.
- Customary International Law
Separately, Pakistan maintained that customary international law permits states to refuse to nationals the right to access consular assistance in the event that they are accused of spying. Pakistan’s central claim was that, because the Preamble to the VCCR affirms that ‘rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention’, this agreement does not cover in toto all matters pertaining to consular relations. In particular, Pakistan submitted that, like cases of asylum and dual nationality, espionage is part of a group of subject matters pertaining to consular relations not expressly regulated by the VCCR (para 298, Written Proceedings). In fact, Pakistan went on to cite examples of state practice both ‘up to and beyond the entry into force of the VCCR 1963’ to support its contention that states are permitted to deny consular access to individuals accused of espionage (para 322, Written Proceedings). In short, Pakistan’s argument was that a customary espionage exception to the right to access consular assistance under Article 36 has crystallised (para 311, Written Proceedings).
India rejected Pakistan’s claim. For India, the decisive issue was that Article 36 VCCR confers upon all individuals – even spies – the right to access consular assistance when they are detained by a foreign power. As India remarked, there is ‘no ambiguity’ when it comes to the comprehensiveness of Article 36 (para 105, Written Proceedings). Moreover, India argued that examples of state practice where individuals accused of espionage had been denied consular access does not affect the integrity and scope of the protection afforded by Article 36:
The plain language of a treaty, if it is contrary to the conduct of States, cannot be whittled down by reference to “State practice”. A treaty, in fact, is set about at times to bring about uniformity in State practice. So even assuming that the conduct of States, evincing a consistent conduct which is sufficiently clearly documented so as to satisfy the rigorous standards of what constitutes “State practice”, it cannot alter the plain language of a treaty (para 99, Oral Proceedings).
This notwithstanding, India noted that ‘[t]he random examples given by Pakistan in any case do not assist the Court in coming to any such conclusion of State practice’ (para 100, Oral Proceedings), the argument being that state practice in this area is not sufficiently thick to support the existence of a customary exception to Article 36 VCCR. To strengthen its argument, India also offered examples of state practice where states had actually granted consular access to individuals accused of spying, which it argued militate against Pakistan’s conclusion that a rule of customary law has emerged allowing states to deny spies access to consular assistance under Article 36 (para 100, Oral Proceedings).
In its judgment, the ICJ concurred with India’s argument that the Preamble to the VCCR ascribes a residual role to customary international law – that is, customary law only applies in relation to consular matters not expressly regulated by the Convention. As already noted, earlier in its judgment the Court found that Article 36 VCCR grants to all nationals the right to access consular assistance, regardless of whether they are accused of spying. In light of this, the Court did ‘not find it necessary to determine whether, when the Vienna Convention was adopted in 1963, there existed the rule of customary international law that Pakistan advances’ (para 90, Jadhav).
The Court’s legal assessment is on point insofar as it relates to ‘when the Vienna Convention was adopted in 1963’. At that time, and at least for states parties to the VCCR, Article 36 VCCR was the only applicable legal framework on consular access because, according to the literal meaning of this provision as well as the object and purpose of the Convention and its attendant travaux, all individuals fell within the ambit of protection conferred by Article 36. Certainly, historical state practice cannot be invoked to subject Article 36 to a meaning that it was not intended to bear when the treaty was concluded.
The problem with the Court’s analysis is that it fails to address Pakistan’s central argument, namely, that since the adoption of the Vienna Convention in 1963 a rule of customary international law has crystallised allowing states to deny individuals accused of spying access to consular assistance notwithstanding the existence of Article 36 VCCR. The Court’s approach is surprising given that there is evidence within state practice as well as the jurisprudence of national and international tribunals to support the proposition that, as lex posterior, customary law can be relied upon to the exclusion of prior treaty law in the event that they run into conflict (for a discussion of this practice and jurisprudence see Villiger, p. 195 et seq, Buga, chapter 5, and Crootof, pp. 264-288).
It is not the purpose of this post to determine whether customary law can displace or set aside a prior and inconsistent treaty rule and, if it can, to consider whether state practice and opinio juris has formed in sufficient amounts since 1963 to create a customary espionage exception to Article 36 VCCR. What we would say, however, is that for customary law to take precedence over prior and incompatible treaty law, ‘strict’ requirements must be met (Buga, p. 234; Ruys, p. 29), specifically, there must be a general practice accompanied by communal opinio juris in favour of the customary rule. It is open to question whether such strict requirements are met with regard to a customary espionage exception.
Moving forward, the main objective of this post has been to spotlight the Court’s failure to engage with Pakistan’s argument that, post-1963, state practice has given rise to a customary international rule that allows states to deny individuals accused of spying access to consular assistance. Indeed, the ICJ’s refusal to engage with Pakistan’s argument is unfortunate given that, as treaty law and customary international law become ever more intertwined and as questions over their co-existence become ever more complex, it would have been useful for the Court to clarify how these sources of international law interact and to what extent they are interoperable.
Moreover, by failing to deal with Pakistan’s so-called customary espionage exception, the Court missed an opportunity to address an important issue (which was raised by Pakistan, see para 154 and 162, Written Proceedings) relating to how we identify the formation of customary international law; specifically, what, if any, legal significance can be accorded to state practice in the case of subject matter clouded in secrecy and silence, such as espionage (incidentally, this is an issue that the present authors have discussed here and which has also been recently discussed on this blog in the context of the jus ad bellum).
- Concluding Thoughts
In the end, the Court’s reluctance to delve into an intensive discussion of state practice of espionage is understandable given that states themselves have been reluctant to litigate disputes involving spying (as an example, see Timor-Leste v Australia). In the context of the Jadhav proceedings, this is exemplified by the fact that none of the 177 states parties to the VCCR responded to the Court’s invitation under Article 63 of the Statute of the Court to express their views on whether Article 36 VCCR provides for a customary international law exception with regard to espionage.