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The Jadhav Judgment: Espionage, Carve-Outs and Customary Exceptions

Published on August 8, 2019        Author:  and

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. Read the rest of this entry…

 

Economic Espionage under International Law

Published on January 16, 2019        Author: 

In December 2018 the Council on Foreign Relations and the BBC published independent reports identifying China as a prolific perpetrator of economic espionage. Economic espionage describes the state-sponsored theft of confidential information belonging to foreign companies. Once obtained, the state passes the stolen information to domestic companies in order to enhance their competitive position within the market and, by making them more profitable, to strengthen the national economy.

Economic espionage costs victim companies millions of dollars a year. Given that nowadays states draw a direct line between the maintenance of their economic security and their national security, states have increasingly determined that economic espionage constitutes a threat to national security. Indeed, the intensity of this threat has been amplified since the advent of cyberspace because of the vast amounts of business information stored in this domain combined with the ease, speed and anonymity with which it can be accessed. Read the rest of this entry…

Filed under: EJIL Analysis
 
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Response to Roth, D’Aspremont and Fox

Published on November 19, 2014        Author: 

I formulated the central thesis of this book at the height of the ‘liberal confidence’ that was witnessed during the Bush and Blair administrations. At that time it seemed that a new world order was emerging and that a serious attempt was underway to fundamentally reorganise the political and legal structure of the world order. In short, what we were witnessing was a clash of normative orders between associations of states that I refer to as the international society and the international community.

Obviously, matters have become much more complex in recent years – in light of the rise of international terrorism, the global economic downturn, the emerging multipolar world etc – and much of the hype and hubris that once surrounded Bush and Blair’s ‘liberal confidence’ during the 1990s has now substantially faded. But I argue that although the liberal project has changed in form it has not changed in substance, and I continue to stand by my central thesis – namely, that the contemporary world order comprises opposing normative orders (the international society and the international community) and that it is the interface between these associations that provides a convincing explanation for why violations of international peace and security occur.

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International Law and the Construction of the Liberal Peace: An Introduction

Published on November 14, 2014        Author: 

I am delighted that the editors of EJIL: Talk! have agreed to host a discussion of my recently published monograph, which is entitled International Law and the Construction of the Liberal Peace and published by Hart. I am especially delighted that Professor Jean d’Aspremont, Professor Greg Fox and Professor Brad Roth have agreed to act as discussants. These scholars have been at the forefront of the debate on the relationship between international law and liberal democracy and, as is apparent from my book, their work has had a significant impact upon the way in which I understand international law and international relations. It is therefore an honour for me that they have taken the time to critically engage with the arguments that I pursue in the book. I intend to briefly outline the main ideas and arguments that are developed in the book and I do this with the objective of setting the scene for the discussion that follows.

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