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Home Posts tagged "Espionage"

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…

 

Espionage & Good Faith in Treaty Negotiations: East Timor v Australia

Published on January 20, 2014        Author: 

In April last year, East Timor instituted arbitral proceedings against Australia at the Permanent Court of Arbitration (‘PCA’) in relation to a dispute arising under the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (‘CMATS Treaty’). Timor Leste (as East Timor is formally known) alleges that the CMATS Treaty is invalid because Australia engaged in espionage in the course of negotiating the Treaty. As noted by Matthew Happold in an earlier EJIL:talk! post, Timor Leste has also initiated proceedings against Australia the International Court of Justice in respect of the seizure of documents by Australian authorities from the offices of the Australian lawyer who is acting for Timor Leste in the PCA arbitration. Indeed, the ICJ is holding hearings, this week, on Timor Leste’s request for provisional measures that will require Australia to give up to the custody of the Court all documents and data seized by Australia pending disposal of the ICJ case and to give assurances that ‘it will not intercept or cause or request the interception of communications between Timor-Leste and its legal advisers’.

The details of the arbitration before the PCA have not been made public, so it is difficult to form any clear assessment of the precise international law issues that arise.  However, from public statements and media reports, it seems that Timor Leste is alleging that the CMATS is invalid because “Australia did not conduct the CMATS negotiations in 2004 in good faith by engaging in espionage”.  According to the lawyer for Timor Leste, during the negotiations for the CMATS Treaty, Australian intelligence services inserted listening devices into the wall of Timor-Leste’s negotiating room under the guise of an Australian aid program concerning renovation and construction of cabinet offices. The lawyer for Timor-Leste has likened the behaviour of the Australian intelligence services to insider trading. The PCA case is particularly interesting as it might be the first case in which a state seeks invalidity of a treaty on the ground that the other treaty party acted fraudulently in the negotiation of the treaty. The case raises the question whether states not only have an obligation to negotiate treaties in good faith but whether breach of the obligation to negotiate in good faith amounts to a ground for invalidity of a treaty.

Before turning to the grounds for invalidity, it is first worth noting that one of the interesting aspects of these proceedings is that they were even commenced at all. Read the rest of this entry…