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Home Posts tagged "consular access"

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…

 

The International Court of Justice renders its judgment in the Jadhav case (India v. Pakistan)

Published on July 18, 2019        Author: 

On 8 May 2017, India instituted proceedings before the International Court of Justice (ICJ) against Pakistan, accusing the latter of ‘egregious violations of the Vienna Convention on Consular Relations’ (VCCR) (p. 4). The dispute concerns the treatment of an Indian national, Mr. Kulbhushan Sudhir Jadhav, who was detained, tried and sentenced to death by a military court in Pakistan.

In this post, I will give a brief overview of the background of the case and the claims submitted by India, followed by the provisional measures decision and the judgment on jurisdiction, admissibility and merits, pronounced in open court on 17 July 2019.

Application instituting proceedings

In its Application, India claimed that, on 3 March 2016, Mr. Jadhav was ‘kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan’ (para. 13) on suspicion of espionage and sabotage activities.  India stated that it was not informed of Mr. Jadhav’s detention until 22 days after his arrest and Pakistan failed to inform Mr. Jadhav of his rights under the VCCR. Allegedly, the Pakistani authorities refused to give India consular access to Mr. Jadhav, despite repeated requests. Read the rest of this entry…

 
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Some Thoughts on the Jadhav Case: Jurisdiction, Merits, and the Effect of a Presidential Communication

Published on May 12, 2017        Author: 

On 8 May, India instituted proceedings at the International Court of Justice against Pakistan relating to the latter’s imprisonment and award of death penalty to Kulbhushan Jadhav, an Indian national. Pakistan claims it arrested Mr Jadhav on 3 March 2016, in Balochistan (a Pakistani province), where he was engaged in espionage and sabotage activities. A military court sentenced him to death on 10 April 2017. India alleges that Mr Jadhav was abducted from Iran, where he was engaged in business following retirement from the Indian Navy. India further claims that following his arrest and throughout his trial, sentencing and now imprisonment pending execution of sentence, it has not been allowed consular access to Mr Jadhav.

India’s application asks the Court to declare that the sentence imposed by Pakistan is ‘in brazen defiance’ of Article 36 of the Vienna Convention on Consular Relations (VCCR), and of the ‘elementary human rights of the accused’ (para. 60). It asks the Court to direct Pakistan to annul the decision; or, if, Pakistan is unable to do so, to declare the decision illegal, and direct Pakistan to release Mr Jadhav immediately (Id.). India has also requested that the Court indicate provisional measures preventing Pakistan from executing him pending resolution of the dispute.

Oral hearings on provisional measures are listed to begin on 15 May. Meanwhile, President Abraham has issued an urgent communication to Pakistan, pursuant to his powers under Article 74(4) of the 1978 Rules of the Court. This provides:

Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.

In this post, we offer a brief account of several issues. We first note a few points in relation to India’s claims as to the Court’s jurisdiction and the merits of the claim proper. We then discuss the scope and effects of the President’s Article 74(4) communication. Our attention was caught by the fact that this communication was reported in the Indian media as a ‘stay’ on Mr Jadhav’s execution, with India’s Foreign Minister even tweeting that she had told Mr Jadhav’s mother ‘about the order of President, ICJ […]’. This squarely raises the question: can the Article 74(4) communication be read as a mandatory ‘order’ in the same way as provisional measures ordered under Article 41 of the Court’s Statute? And, if not, could a state in any way be found legally accountable in for its breach? Read the rest of this entry…

 
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