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

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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.

  1. 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.

  1. 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). 

  1. 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.

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    Comments

    Kubo Mačák says

    August 8, 2019

    Dear Russell and Iñaki,

    Thank you for your excellent post. Reading it made me wonder about your views on the central issue which, as you say, the ICJ was reluctant to address. In other words, do you agree with Pakistan’s argument that a customary espionage exception to Article 36 VCCR has emerged since 1963? How should the Court have approached answering this question?

    Best wishes,
    Kubo

    Minh Tran says

    August 8, 2019

    Thanks for the post.

    I skimmed the written memorials of Pakistan. It is confusing to me. I reads the arguments of Pakistan in a way different with yours. I think that Pakistan did not argue for a customary exception to Article 36. It appears that Pakistan argued for the absence of a customary right to consular access applicable to persons involving espionage.

    As submitted by Pakistan in para. 311 and 323 of its Written Counter-Memorial, Pakistan argued that there is no evidence travaux préparatoires of the VCCR 1963, state practice or academic writing that “customary international law principles support the contention that an individual arrested […] [in] a prima facie case of espionage is entitled to consular access pursuant to Article 36...” The wording indicates that it did not argue for a customary exception to Article 360. What it argued is that the right under Article 36 is not applicable to those persons, and, moreover, under CIL they are also not entitled to such a right, therefore, they are not entitled such a right under both VCCR and CIL.

    So, it is not necessary for the Court to consider whether there exists such a customary right for this category of individuals because it had concluded previously that the right exists for them under Article 36. The Court’s approach is reasonable.

    If Pakistan advances a more direct argument for a customary exception to Article 36, e.g. a customary rule positively allowing a state to deny the rights under Article 36 to persons concerned, or precluding the applicability of Article 36 to those persons. The Court would need to examine this argument.

    In sum, the approach of the Court is the result of the strategy Pakistan argued the case.

    Tran H. D. Minh

    Russell Buchan says

    August 8, 2019

    Thank you Tran Minh for your comment. As we read the counter-memorial - especially paras 311 and 322 (but also the preceding and proceedings discussion) - the gist of Pakistan’s claim was that there exists a rule in customary international law that can be relied upon by States as a legal justification to refuse spies access to consular assistance notwithstanding Article 36 VCCR. It seems to us that Pakistan was of the view that a customary rule existed either prior to 1963 and which survives the inception of the VCCR or has emerged subsequent to 1963, and Pakistan pointed to state practice both before and after 1963 to support this claim. That this was Pakistan’s claim is also demonstrated by paragraph 87 of the ICJ's judgment. The Court concluded that it did not need to determine whether there was such a customary rule in 1963 because, at least for the States parties to the Vienna Convention, Article 36 VCCR was supreme and decisive, that is, from 1963 all nationals of States parties - including spies - are entitled to access consular assistance. Our concern is that the Court did not consider whether State practice subsequent to 1963 has given rise to a customary law that permits States to deny consular access to spies to the exclusion of Article 36 VCCR.

    Russell Buchan says

    August 10, 2019

    Thank you Kubo for your comment. The answer to your question requires a forensic doctrinal examination of State practice in relation to detained nationals accused of spying and whether they have been allowed to access consular assistance. In our post we do not look at this - instead, our objective is to call out the Court’s failure to engage in this assessment. We would make two observations, however: (1) as we know, for customary law to form a high threshold has to be met: widespread and representative State practice coupled with opinio juris.; (2) not all State conduct is eligible to contribute to customary law formation; for example, secret State conduct does not qualify as State practice. Thus, when dealing with State conduct in the context of espionage - which is an intrinsically secretive enterprise - Courts should be careful as to what State practice they rely upon when identifying customary rules.

    Katie Johnston says

    August 11, 2019

    Dear Russell and Iñaki,

    Thank you very much for this interesting post.

    I was also intrigued by your suggestion that a new rule of customary law could carve out an exception to a rule of treaty law and was wondering what exactly you mean by this. I understand your post did not seek to address this point directly but it seems important for the question you raise about the Court’s decision not to engage with certain arguments made in proceedings. If the Court took the view that it is not possible for customary law to displace or set aside a prior and inconsistent treaty rule then it may have considered that Pakistan’s argument on this point did not need to be addressed.

    There are clearly some situations in which a modification of custom can produce a change in a treaty rule: new rules of jus cogens (Art 64 VCLT, assuming jus cogens norms are a form of custom), or when a treaty refers to a customary rule/concept/definition such that the interpretation of the treaty must take account of any subsequent customary developments (e.g. elements of Art 51 UNC).

    Otherwise it seems difficult to see how a new customary rule could itself modify treaty obligations between the parties or act as a defence to breach of those obligations. Even if a new general customary rule contrary to a treaty norm were to arise, the treaty norm would remain lex specialis among its parties.

    It is possible that the same practice and beliefs of States that give rise to the new conflicting customary rule could simultaneously meet the criteria for informal modification of treaty obligations, leading in effect to the same outcome as if a new customary rule had modified the treaty rule. Subsequent practice in the application of the treaty can alter the interpretation given to a treaty rule (Art 31(3)(b) VCLT). However, in these circumstances it would not be correct to say that the new customary rule had itself modified the treaty. In addition, Art 31(3)(b) requires practice “which establishes the agreement of the parties regarding its interpretation”: arguably a more demanding requirement which the practice and OJ sufficient to establish a new customary rule would not necessarily satisfy. (An interesting question is what the difference between these two thresholds - if any does exist - would look like in practice.)

    I’d be interested to hear your thoughts, particularly as to which questions regarding how these sources of international law interact you hoped the Court would address, and if you (or other commenters?!) have other examples in mind of where such a customary exception to a treaty rule has been seen to develop.

    Best wishes,
    Katie

    Kubo Mačák says

    August 12, 2019

    Thank you Russell. I agree it would require non-trivial effort to arrive at a conclusive answer and that the two considerations you offer provide useful guidance to anyone who would want to undertake it. It may also be of interest that Judge ad hoc Jillani accepted the Pakistani argument at least in part in para. 30 of his dissenting opinion: “[A]s argued by Pakistan, State practice from the Cold War demonstrates that requests for consular access between the United States of America and the Union of Soviet Socialist Republics for individuals accused of espionage activities were either denied or were granted on severely restricted terms.” It was, it seems to me, on that basis that he noted that an “exception of not providing consular access in cases of espionage [was] reflected in customary international law” (para. 32). However, he did so without engaging in anything even approximating the “forensic doctrinal examination of State practice” that you mention. Perhaps there are graduate students reading this discussion who will find an inspiration for a dissertation topic here – it would be interesting to see such analysis at some point in the future. In any case, thanks again for your thoughtful reply to my question.

    PS: As for Katie’s question, I would recommend Rebecca Crootof’s excellent article published in the Yale Journal of International Law in 2016, which addresses this very issue and provides a number of concrete historical examples. For instance, she notes how the customary equivalent of Article 70 AP I modified the pre-existing (treaty) obligations under GC IV for States not party to AP I, which was also acknowledged by Israel’s High Court of Justice (see pp. 272–74 of Rebecca’s piece).

    Russell Buchan says

    August 13, 2019

    Dear Katie,

    Thank you for your comment and questions - they are very interesting.

    Doctrinally, our view is there is sufficient evidence to support the contention that customary law can set aside a prior and inconsistent treaty rule. Kubo has rightly pointed to the article by Crootof and we would also recommend Buga’s book on this topic - both publications provide various examples of national and international courts relying on customary law to the exclusion of a prior and inconsistent treaty provision. Also illuminating is the example of Article 2(4) UN Charter and the doctrine of humanitarian intervention. While scholars may disagree vociferously over whether - ontologically speaking - States can use force for humanitarian purposes under customary law notwithstanding the use of force prohibition, there seems to be general agreement that, providing the criteria for customary law are met, humanitarian intervention can emerge as a customary exception to Article 2(4) UN Charter.

    You say custom cannot take preference over a prior and inconsistent treaty rule because the treaty is lex specialis. We disagree. If customary law forms that is inconsistent with a prior treaty then, by definition, both rules relate to the same subject matter and it becomes difficult to identify which of them is lex specialis. Yet, given that there is no hierarchy when it comes to identifying the sources of international law, as custom is the latter in time and by way of the lex posterior principle, it must be given priority over a prior treaty rule with which it is in conflict.

    For the avoidance of doubt: we are not suggesting that subsequent customary law can directly modify the content of a treaty provision in the sense that the treaty is re-constituted to accommodate the developments that have occurred in customary law.

    You also ask a very good question about how we distinguish in practice between treaty reinterpretation under Article 31(3(b) VCLT and customary displacement of a treaty provision. As you say, Article 31(3)(b) VCLT requires evidence of practice by States parties demonstrating their agreement to (re)interpet the treaty. However, under custom the state practice must be accompanied by the belief that their conduct is permissible by way of customary law. In this sense, Buga suggests that there is a double OJ requirement for custom to form and to set aside a prior and inconsistent treaty rule - (i) OJ to create a new customary rule as well as (ii) evidence of a recognition by States that they intend to develop custom that overrides a prior treaty rule. Whatever the case may be, we believe that the test ought to be a demanding and exacting one. Basically, States can only create custom that supersedes a treaty where they are clear and express in their intention to do so.

    We’d welcome your thoughts (and references to any other material) on this issue. This is a threshold question (different from the criteria to be met for custom) and it really intrigues us.

    Best wishes
    Russell and Inaki