Do Alleged “Terrorists” and Spies Have the Right to Consular Access Under the VCCR?

Reema Omer is a Legal Adviser for the International Commission of Jurists.

Last week, the International Court of Justice (ICJ) completed oral hearings in the Jadhav case, which concerns India’s dispute with Pakistan on upholding the right of detainees to consular access.

The judgment in this case, which is expected at some point in the summer this year, will be significant as this is the first time the ICJ will expressly decide whether offences such as espionage and terrorism exclude accused persons and the sending States from the protections of the Vienna Convention on Consular Relations (VCCR). 

India’s allegations

India has alleged “egregious violations” of the VCCR by Pakistan in connection with the detention, trial and conviction of Indian national Kulbhushan Jadhav.

India has claimed that denial of consular access to Jadhav breaches Pakistan’s obligations under Article 36(1) of the VCCR. This provision, among other things, provides that when a national of a foreign country is arrested or detained, the detainee must be advised of the right to have the detainee’s consulate notified and that the detainee has the right to regular consultation with consular officials during detention and trial.

India has also argued that the ICJ has jurisdiction to hear this case as the Optional Protocol to the VCCR, which both India and Pakistan are a party to, gives the ICJ mandate to try disputes that arise from the treaty.

Pakistan’s case

According to Pakistan, Kulbhushan Jadhav was involved in espionage and terrorism-related activities in the country.

Responding to India’s allegations, Pakistan has primarily argued: (1) The VCCR is not applicable to spies or “terrorists” due to the inherent nature of the offences of espionage and terrorism; (2) a bilateral agreement on consular access, signed by India and Pakistan in 2008, overrides the obligations under the VCCR; and (3) reservations made under Article 36(2) of the ICJ Statute are also applicable to cases under Article 36(1) of the ICJ Statute.

Pakistan’s arguments appear to be on weak legal footing. The VCCR does not make any exception for people suspected of (or even convicted of) committing espionage or terrorism-related offences and the ICJ has in the past also not interpreted the treaty to exclude such offences from VCCR protections.

Pakistan’s position is not just untenable; it is also dangerous. Making rights pertaining to consular access under the VCCR contingent upon the offence foreign nationals are charged with would undermine the very purpose of the treaty. It would allow States to deny consular access to foreign nationals merely through a particular characterization of their acts.

Pakistan’s argument that the 2008 bilateral treaty – which states that in cases of “arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits” – overrides the VCCR, a multilateral treaty, is also not convincing.

The VCCR is a multilateral treaty, to which the vast majority of States are party (179 at present). The obligations under the VCCR may be enhanced or clarified by bilateral treaties, but cannot be diluted or undermined, as affirmed by authoritative interpretation of the VCCR[1] and general principles of treaty law, including Article 41(1) of the Vienna Convention on the Law of Treaties.

The ICJ, of course, will decide these issues in its final judgment.

This brings us to another important point. Much of what has been raised in the media in both countries regarding the strengths of the case on both sides is very likely going to be irrelevant. This public display includes Jadhav’s televised “confessions”, details of the charges against him, evidence of India’s alleged role in “sponsoring terrorism” in Balochistan, or the alleged role of Pakistan in “sponsoring terrorism” in Kashmir.

While the Court is not immune to these considerations, here most judges are likely to be constrained to adhere to what appears to be clear-cut imperatives of the VCCR – i.e. the applicability of Article 36 of the VCCR and the right to consular access.

Relief and remedies

Another key issue that of relief. If the ICJ finds Pakistan to be in breach of its international legal obligations under the VCCR, what specific measures can it order?

We should recall that in May 2017, the ICJ issued an order for provisional measures in response to India’s request, and directed Pakistan to “take all measures at its disposal” to ensure Jadhav is not executed pending the final decision of the Court. Such measures, however, are only indicated pending the final decision of the Court and that they cease to apply once the judgment of the Court is given.

India has also requested a number of other measures of relief from the ICJ, including the annulment of Kulbhushan Jadhav’s death sentence; a declaration that Kulbhushan Jadhav’s military trial was in violation of the VCCR and international human rights law, including the International Covenant on Civil and Political Rights (ICCPR); a directive restraining Pakistan from giving effect to the death sentence; and a directive to release Kulbhushan Jadhav.

Significantly, the ICJ, pursuant to its jurisdictional competencies, can only decide whether Pakistan breached its obligations under Article 36 of the VCCR and order related relief. This may include, for example, directions to Pakistan to guarantee that similar breaches won’t occur in future or to “review or reconsider” Jadhav’s conviction and sentence

On this question, it would be particularly interesting to see whether the ICJ considers a review of military courts’ proceedings before the high courts or the Supreme Court in Pakistan “effective” and “meaningful” to determine if breaches of the VCCR resulted in actual prejudice in Jadhav’s trial. Note that military courts’ proceedings cannot be appealed in civilian courts in Pakistan. High courts and the Supreme Court, however, may “review” decisions of military courts based on limited grounds such as jurisdiction and bad faith.

Furthermore, in these proceedings the ICJ cannot determine whether Jadhav’s trial was in violation of the ICCPR. It is also unlikely that the Court can order Jadhav’s release or rule on the lawfulness of military trials or the death penalty in Pakistan.

Lose-lose (or win-win)?

The ICJ could therefore dismiss Pakistan’s arguments on the merits of the case and hold that by denying Jadhav consular access, Pakistan breached its obligations under the VCCR.

At the same time, the ICJ could also deny a number of the specific measures requested by India for lack of jurisdiction.

Regardless of the outcome, one hopes that this case encourages both States to start taking their international commitments more seriously, and the media to start taking interest in their international legal obligations beyond this one high-profile case.

[1] See, for example, Luke T. Lee and John Quigley, Consular Law and Practice, 3rd edition, pp 568-9.