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The ICJ's Jadhav Judgment and Its Implications for Pakistan and India under International Law

Published online by Cambridge University Press:  03 November 2020

Abhishek TRIVEDI
Abhishek TRIVEDI*
Affiliation:
Faculty of Legal Studies, South Asian University, New Delhi, India
*
abhishektrivedi2011@gmail.com
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Abstract

The International Court of Justice [ICJ] delivered its Judgment on Jadhav (India v. Pakistan) in 2019, finding Pakistan in breach of its obligations under Article 36 of the Vienna Convention on Consular Relations, 1963. Thus, Pakistan is under a continuing obligation to provide, through the means of its own choosing, effective review and reconsideration [ERR] of Jadhav's conviction and sentence. This paper comments on the ICJ's Jadhav Judgment and its implications for Pakistan and India. It also evaluates the legal option if India is not satisfied with Pakistan's implementation of the ERR process effectively. In this situation, India can approach the ICJ again. This paper finds that the possibilities of India's request to be admissible before the ICJ under Article 60 of its Statute are relatively higher than the possibilities of its successful adjudication on the merits.

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Type
Notes and Comments
Information
Asian Journal of International Law , Volume 11 , Issue 1 , January 2021 , pp. 13 - 23
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press

In the Jadhav case, India instituted proceedings before the International Court of Justice [ICJ or the Court] against Pakistan to realize its right as a state and the right of its national Kulbhushan Jadhav under Article 36 of the Vienna Convention on Consular Relations [VCCR], 1963.Footnote 1 India claimed that Pakistan arrested, convicted, and sentenced Jadhav in violation of Article 36(1) of the VCCR.Footnote 2 Jadhav was arrested on 3 March 2016, and convicted and sentenced on charges of espionage and terrorism by a military court in Pakistan in 2017.Footnote 3 According to Pakistan, persons charged for espionage offences are not entitled to enjoy the rights provided under Article 36.Footnote 4

The VCCR lays down the rules for consular relations between states. The fundamental objective and purpose of the VCCR and Article 36 is to contribute to the development of friendly relations and to facilitate the exercise of consular functions among nations.Footnote 5 Article 36(1)(b) of the VCCR talks about the right of arrested person(s) to have communication with a consular officer of their home state (sending state). It also imposes an obligation on the receiving state to inform without delay the consular post of the sending state of which the detained person is a national.Footnote 6 Also, consular officers of the sending state have the right to consular access and to visit their state's nationals, to converse and correspond with them, and to arrange for their legal representation.Footnote 7

Accordingly, the Court, while dismissing Pakistan's arguments on the merits,Footnote 8 observed that Pakistan acted in breach of its obligations under Article 36(1) of the VCCR. Consequently, Pakistan was obliged to provide “effective review and reconsideration” [ERR] of the conviction and sentence of Jadhav.Footnote 9 Now, it is up to Pakistan how it will implement the ERR process through the means of its own choosing.Footnote 10

Meanwhile, Pakistan has given an indication of complying with the ICJ directives and firmly believes that its legal system is fully equipped to implement the ERR process effectively.Footnote 11 However, India may object to the manner and ways in which Pakistan complies with the Judgment, an indication of which India has already expressed.Footnote 12 In short, India may raise objections regarding the interpretation of the terms “consular access/visit” or right to have a “conversation” and a “fair trial”.

Before evaluating the legal standing of India's objections, this paper first comments on the ICJ's Jadhav Judgment and its implications for Pakistan. It then proceeds to highlight Pakistan's initial willingness to comply with the ICJ ruling and India's initial objections thereto, before coming to consider other options available for India to exercise under international law.

I. ICJ JADHAV JUDGMENT AND ITS IMPLICATIONS FOR PAKISTAN

The ICJ delivered its Jadhav Judgment on 17 July 2019, finding Pakistan in breach of its obligations under Article 36(1)(a)–(c) of the VCCR.Footnote 13 Thus, Pakistan is under a continuing obligation to implement the ERR process effectively, preferably through judicial meansFootnote 14 and in the light of the principle of a fair trial.Footnote 15 Accordingly, Pakistan is obliged to provide consular access and visits to India and to arrange legal representation for Jadhav.Footnote 16 The Court explicitly mentioned that the principle of a fair trial is of cardinal importance and is essential in any ERR process.Footnote 17 The Court, however, did not touch upon the legal elements relevant to this principle. Nevertheless, Pakistan is required, in accordance with its domestic laws, to adhere to the principle of a fair trial.

This appears to be a new development in ICJ jurisprudence regarding the scope and content of ERR. In the Avena case, the Court had an opportunity to comment on the issue of fairness as a constituent element of due process rights raised by Mexico in the light of the breach by the US of its obligations under Article 36(1) of the VCCR.Footnote 18 The Court, in this regard, noted that the rights guaranteed under Article 36(1) are treaty rights, irrespective of the due process rights under the constitutional law of the receiving state.Footnote 19 The Court, in essence, is thought to have indicated that a violation of Article 36(1) may not necessarily be a case of harm to a particular right essential to a fair trial, but it is certainly a case of involving the infringement of individual rights, along with those of a sending state.Footnote 20 In this way, the Court, while in the Avena Judgment seeking to observe that a fair trial is possibly a matter of substantive requirements of due process rights, in the Jadhav Judgment it explicitly mentioned that the principle of a fair trial is significant for any ERR to be effective.

The Court further directed that the process of ERR ought to be implemented in a manner which ensured that “full weight”Footnote 21 would be given to the effects of the violation of Jadhav's rights outlined in Article 36, and that the possible prejudice and implications for his right to a fair trial, and the evidence, and the right of defence caused by such a violation, would be “fully examined” and would receive “close scrutiny”.Footnote 22 Notably, the said obligation is an obligation of result, which must be achieved within a reasonable time.Footnote 23

II. INDICATION BY PAKISTAN OF COMPLIANCE WITH THE ICJ RULING AND THE OBJECTIONS OF INDIA

Pursuant to the ICJ ruling, Pakistan officially demonstrated that it had “provided consular access on 02 September, 2019 to India for Commander Kulbhushan Jadhav”.Footnote 24 Pakistan has also maintained that “un-impeded, uninterrupted” consular access has been provided “in line with [the VCCR], ICJ verdict and the laws of Pakistan”.Footnote 25 The access provided was recorded in the presence of Pakistani government officials and lasted for two hours, with no restriction on the language of communication.Footnote 26

As of now, no objection from the side of India regarding the consular access provided has been raised before Pakistan. India, however, maintained that “Shri [Mr] Jadhav appeared to be under extreme pressure to parrot a false narrative to bolster Pakistan's untenable claims”.Footnote 27 In view of this, and in the absence of a comprehensive report which is expected to be submitted by the chargé d'affaires, High Commission of India in Islamabad, India has yet to decide a further course of action and to determine the extent of compliance by Pakistan with the ICJ directives.

Further, it is important to underline that, just three days before the consular access was provided, Indian chargé d'affaires Gaurav Ahluwalia asserted that Pakistan would ensure the right atmosphere so that the meeting is “free, fair, meaningful and effective in keeping with the letter and spirit of the ICJ orders”.Footnote 28 This statement should be viewed in the light of India's previous statements and Pakistan's first-time offer of consular access.Footnote 29 Pakistan, for the first time, offered consular access to India at the end of July 2019, and the date of 2 August was proposed for such access. India, however, rejected this offer, asking Pakistan to provide unimpeded consular access in an environment free from the fear of intimidation and reprisal.Footnote 30 Thus, India seems to be reiterating its intention that it should be provided with “full” consular access to Jadhav.Footnote 31 The reference to “unimpeded consular access” in an “environment free from the fear of intimidation and reprisal”Footnote 32 indicates that India had the intention of having a private or confidential conversation with Jadhav. In the case of India raising this point of consular access, it is an issue of interpretation as to what constitutes consular access/visit, whether a private or confidential conversation is implicit to the meaning of full consular access, or a right to have a “conversation” within the meaning of Article 36(1)(c).

India's intention to seek a confidential conversation with Jadhav is obvious, i.e. to find out the level of stress or torture which Jadhav might be subjected to in prison.Footnote 33 If Jadhav confirms this verbally, this might serve to help India bolster its narrative and also to help Jadhav during the review process.Footnote 34 If this particular aspect of the right to consular access/visit and its interpretation reaches the ICJ for decision, India would probably argue that Jadhav may fear reprisal if the Pakistani officers know of this communication, and if the privacy of communication is not assured, it may vitiate the purpose of having such communication.

India can also raise objections regarding the manner and ways in which Pakistan will give effect to the ICJ Judgment. To be more specific, India may with higher probability raise concerns about the right of Jadhav to a fair trial by an independent and impartial court.Footnote 35

If such a situation arises, what would be the implications, and how the Court would deal with these situations, are questions of pertinent importance for both parties to the present case and for the ICJ. The next part of the paper analyzes the legal option India would have under international law, and evaluates the legal standing of India's arguments regarding the interpretation of the expressions “consular access/visit” and/or right to have a “conversation” and a “fair trial”.

III. OPTION OPEN FOR INDIA IN THE CASE WHERE IT IS NOT SATISFIED WITH PAKISTAN'S IMPLEMENTATION OF THE EFFECTIVE REVIEW AND RECONSIDERATION PROCESS

Since Pakistan has indicated that it would comply with the Judgment, there is a possibility that the modalities and procedures which Pakistan adopts to give effect to the Judgment may give rise to different interpretations for India and Pakistan. If such a situation arises, India may approach the ICJ again for clarification.

A. Recourse to the ICJ

India can approach the ICJ under Article 60 of its Statute, which provides that “[i]n the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party”.Footnote 36 India can request the Court to interpret the expression “consular access/visit”, and whether it includes within its meaning or scope private or confidential conversation between its consular officers and Jadhav. Second, India can also urge the Court to construe the meaning of the term “fair trial”. The Court is supposed to exercise jurisdiction on both issues as they are part of its original Judgment of 17 July 2019.Footnote 37

However, the Court has to be satisfied that there exists any “dispute”—a difference of opinion—between India and Pakistan regarding the meaning or scope of the terms “consular access/visit” or “fair trial”.Footnote 38 Meanwhile, if Pakistan withdraws from the Optional Protocol to the VCCR, it would have no bearing on the Court's jurisdiction under Article 60.Footnote 39

The most challenging part for India in establishing a “dispute” with Pakistan within the meaning of Article 60 will be to indicate “precise point[s] in [the] dispute as to the meaning or scope of the judgment” of 17 July 2019.Footnote 40 The existence of a dispute under Article 60 is not subject to the satisfaction of the same criteria as that of a dispute referred to under Article 36(2) of the ICJ Statute.Footnote 41 Non-specificity as to what the claimed dispute precisely is may render India's application inadmissible under Article 60. Accordingly, the next part of this paper examines whether India's potential arguments carry any specificity about the interpretation of the expressions “consular access/visit” and/or right to have “conversation” and “fair trial”.

1. Interpretation of the terms “consular access/visit” and right to have a “conversation”

As for the right of India to have consular access/visit to, or the right to have a conversation with, Jadhav, India may argue in favour of a particular interpretation of the term “consular access/visit”, i.e. that such rights include the right to have a private or confidential conversation with Jadhav. Pakistan would likely deny this for many reasons, such as the safety of Jadhav or a breach of security or any other domestic laws/regulations.Footnote 42 This indicates that there may exist a dispute between the two parties regarding the interpretation of a particular term, “consular access/visit”, triggering the jurisdiction of the Court in this matter.

However, the moot question before the ICJ would be to decide whether a private or confidential conversation is part of the right to consular access/visit under the scope of Article 36(1) of the VCCR.

The VCCR is silent about the modes and methods of providing consular access, whether the conversation should be purely confidential or in the presence of the officials of the receiving state. The VCCR leaves it to the discretion of each state to decide the methods of providing consular access.Footnote 43 However, these methods must enable “full effect to be given to the purposes for which the rights accorded under [Article 36] are intended”.Footnote 44 In this regard, the Pakistan Prison Rules of 1978 are relevant to directing the prison management.Footnote 45 However, these rules do not mention how prison authorities should behave during the visits of consular officers.

During the visit of Jadhav's mother and wife in December 2017, the agreed modalities provided that there would be an Indian diplomat, one officer from the Pakistan foreign ministry, and a female Pakistani security official present during the meeting.Footnote 46 The standard practice regarding consular access cases in Pakistan is that they are observed and overheard by Pakistani officials.Footnote 47 For other states, there is diversity in how they implement Article 36. Many states in their practice consider any monitoring of communication and conversation between consular officers and their national a violation of their right to consular access.Footnote 48 There are also a significant number of bilateral conventions that have provisions ensuring some degree of privacy during consular visits.Footnote 49 Nevertheless, it would be difficult to conclude whether such practice and conventions are sufficient to establish state practice and opinio juris in terms of crystalizing customary rules of international law, particularly in parallel to Article 36(2) of the VCCR, which leaves it to the receiving state to decide how it should provide consular access to the sending state.

In this judicial process of construing the meaning of the term “consular access/visit” under Articles 36(1)(a) and (c), the ICJ may resort to supplementary means of interpretation, i.e. the travaux préparatoires of Article 36 of the VCCR. For this purpose, the Court may have recourse to the records of the Vienna Conference (1963)Footnote 50 and International Law Commission [ILC] Reports.Footnote 51 The travaux préparatoires of Article 36 do provide some, albeit insufficient, insight regarding the interpretation of a term “consular access/visit”, and to its scope within the meaning of Article 36(1), as to whether the term includes private or confidential conversation.Footnote 52 The ILC, in its report in 1960, discussed the new draft Article 30A proposed by Sir Gerald Fitzmaurice.Footnote 53 The relevant part of Article 30A(b) states that:

The local authorities shall inform the consul of the sending State without delay when any national of that State is detained in custody within his district; and the consul shall be permitted without delay to visit, converse privately with, and arrange legal representation for any national so detained.Footnote 54

One of the members of the ILC, Mr François, asked whether the provision in paragraph (b) meant that “no warder or other prison official should be present”.Footnote 55 Sir Gerald Fitzmaurice replied that

[t]he words “converse privately” in paragraph (b) were not meant to suggest that a warder or other official should not be present. According to the usual practice in most countries a warder was in the room, but the conversation could nevertheless be private.Footnote 56

Another member, Mr Edmonds, emphasized that private conversation between consular officers and prisoners is essential for providing prisoners with protection, particularly after their sentence or pending appeal.Footnote 57 According to him, only a private conversation could fulfil the purpose intended by the new draft Article 30A.Footnote 58 Similarly, and interestingly, Article 30A was strongly supported by a few other members of the Commission.Footnote 59

Further, the ILC in its 1961 report mentions just that “visits to persons in custody or imprisoned are permissible in conformity with the provisions of the code of criminal procedure and prison regulations” of the receiving state.Footnote 60 This is largely a replication of Article 36(2) of the VCCR. Article 36(2) is, however, slightly different from the language of the ILC Draft Articles in the sense that the latter requires that the laws and regulations of the receiving state “must not nullify [the] rights” of Article 36(1),Footnote 61 while the former requires that such laws and regulations “must enable full effect to be given” to the rights accorded under Article 36(1).Footnote 62 In short, the language of Article 36(2) of the VCCR provides stronger protection in favour of the rights of individuals accorded under Article 36(1), while balancing and giving a sufficient degree of deference to the municipal laws and regulations of receiving states to decide the manner of providing consular access. Surprisingly, neither the ILC's report 1961 (both volumes I and II), nor the records of Vienna Conference in 1963 (both volumes I and II), mentions private conversations as part of consular access/visit.Footnote 63

Based on the above analysis, it would be difficult to conclude with any certainty that the VCCR would allow the ICJ, if the matter goes on the merits, to interpret Article 36 so widely as to include private or confidential conversation within the meaning of the term “consular access/visit”, or the right of consular officers to have (private) conversations.

2. Interpretation of the term “fair trial”

As for Jadhav's right to a fair trial, India may argue that, if Pakistan does not transfer Jadhav's case to the civil courts for a fresh trial,Footnote 64 then the trial of Jadhav by military courts cannot ensure his right to a fair trialFootnote 65 and it would consequently impede giving “full weight” to the effects of the violation of Jadhav's rights outlined in Article 36 of the VCCR and pronounced by the ICJ in its 17 July 2019 Judgment. India will probably argue that, if the process of ERR is conducted by the military courts of Pakistan, it cannot be “effective” in the light of Jadhav's right to a fair trial and will “prejudice” his various other rights enshrined in Article 36. Pakistan, in turn, may argue that Article 36(2) of the VCCR leaves it to the receiving state's domestic laws/regulations as to how a fair trial is conducted and what are its substantive legal elements.

The Court will most probably not comment on the substantive requirements of a fair trial, nor will it delve into how it should be conducted, as doing so may amount to acting as an appellate court, intervening in the domestic/internal affairs of Pakistan.Footnote 66 Also, the Court will probably not examine (which it should)Footnote 67 the international human rights jurisprudence on a fair trial, even though Pakistan is a party to the International Covenant on Civil and Political Rights [ICCPR].Footnote 68 The reason for the Court doing so is that it assumed its jurisdiction for its 17 July 2019 Judgment based on Article 1 of the Optional Protocol to the VCCR, not the ICCPR.Footnote 69 However, the Court is expected, if the matter goes on the merits, to bring in the ICCPR through Article 31(3)(c) of the VCLTFootnote 70 in its interpretation of the term “fair trial” to give it a proper “meaning” or to explore its “scope” in the light of the fact that Pakistan is required to give “full weight” to the effect of the violation of Jadhav's rights under Article 36 and to “fully examine” the implications for the principle of a fair trial of the violations of such rights.

IV. CONCLUDING REMARKS

The ICJ's role in the progressive development of international law on consular functions is significant for ensuring the protection of a state's rights and the rights of individuals under the VCCR. The Jadhav Judgment is a reiteration of the fact that disputes can be settled judicially and peacefully. This paper finds that the possibilities of India's request to be admissible before the ICJ under Article 60 of its Statute are relatively higher than the possibilities of its successful adjudication on the merits. To be further specific, there are higher chances that the request might be admitted under Article 60 for the interpretation of the term “consular access/visit” or the right to have a “conversation”, with the least chances for the construction of the term “fair trial”.

However, keeping in mind the current relations between these two countries, Pakistan should try to locate outside the purview of the ERR process other options that should be legally permissible and politically desirable. Pakistan and India should try to manage the Jadhav matter through diplomatic channels or a bilateral understanding in terms of the Simla Agreement.Footnote 71 In either case, it would be beneficial for both the declared nuclear states as it would help in facilitating bilateral relations and easing tensions between the two nations. Thus, it would eventually contribute to mitigating or prohibiting any potential conflict or “use of force” between the two nations—a jus cogens nature of its prohibition in international relations.Footnote 72

Footnotes

*

PhD research scholar. This paper constitutes part of my presentation delivered at the international conference “South Asia in the Era of International Courts and Tribunals”, held on 28–29 February 2019 at the Faculty of Legal Studies, South Asian University in New Delhi, India.

References

1. Memorial of the Republic of India, Jadhav (India v. Pakistan), [2017] I.C.J. Pleadings at 1–5 [Memorial of India].

2. Ibid., at 19–25.

3. Counter-Memorial of the Islamic Republic of Pakistan, Jadhav (India v. Pakistan), [2017] I.C.J. Pleadings at 19–20, para. 64.

4. Ibid., at 79–94.

5. Vienna Convention on Consular Relations, 24 April 1963, 596 U.N.T.S. 261, (entered into force 19 March 1967), preamble, art. 5, and chapeau of art. 36 [VCCR]; see also United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Order of 15 December 1979, [1979] I.C.J. Rep. 6 at 19–20, para. 40; QUIGLEY, John, ACEVES, William J., and SHANK, Adele, The Law of Consular Access: A Documentary Guide (New York: Routledge, 2011) at 3–15Google Scholar; LEE, Luke T. and QUIGLEY, John, Consular Law and Practice, 3rd ed. (New York: Oxford University Press, 2008)Google Scholar.

6. VCCR, supra note 5, art. 36(1)(b).

7. Ibid., arts. 36(1)(a), (c).

8. Jadhav Case (India v. Pakistan), Judgment, 17 July 2019, [2019] I.C.J. G.L. No. 168 at paras. 68–9, 73, 75, 86–7, 89, 92, 98, 104, 113, 115, 118–19, 122, 124 [Jadhav case].

9. Ibid., at para. 138.

10. Ibid., at para. 147.

11. “Pakistan Provides Consular Access to India for Commander Jadhav, Islamabad”, Ministry of Foreign Affairs, Government of Pakistan (2 September 2019), online: MOFA <http://mofa.gov.pk/pakistan-provides-consular-access-to-india-for-commander-jadhav/> [MOFA statement].

12. “Official Spokesperson's Response to Queries from the Media on Consular Access to Shri Jadhav”, Ministry of External Affairs, Government of India (2 September 2019), online: MEA <https://mea.gov.in/response-to-queries.htm?dtl/31784/official+spokespersons+response+to+queries+from+the+media+on+consular+access+to+shri+jadhav> [MEA statement].

13. Jadhav case, supra note 8 at paras. 120, 134.

14. Ibid., at paras. 138–9; see also LaGrand (Germany v. United States of America), Judgment, 27 June 2001, [2001] I.C.J. Rep. 466 at 514 at paras. 125–6; Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, 31 March 2004, [2004] I.C.J. Rep. 12 at 65–6, para. 140 [Avena case].

15. Jadhav case, supra note 8 at para. 145.

16. Ibid., at para. 149(6).

17. Ibid., at para. 145.

18. Avena case, supra note 14 at 31–2, para. 30.

19. Ibid., at 65, para. 139.

20. Ibid.

21. Jadhav case, supra note 8 at para. 139.

22. Ibid., at para. 145

23. Ibid., at para. 146; see also Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, 19 January 2009, [2009] I.C.J. Rep. 3 at 12, 17, paras. 27, 44 [Request for Interpretation 2009].

24. MOFA statement, supra note 11.

25. Ibid.

26. Ibid.

27. MEA statement, supra note 12.

28. “India Accepts Pakistan's Offer of Consular Access to Kulbhushan Jadhav Today” The Wire (2 September 2019), online: The Wire <https://thewire.in/diplomacy/pakistan-announces-consular-access-to-kulbhushan-jadhav-on-september-2>.

29. “Jadhav: India Rejects Pakistan's Friday Offer, Asks For ‘Unimpeded’ Consular Access” The Wire (2 August 2019), online: The Wire <https://thewire.in/south-asia/kulbhushan-jadhav-india-rejects-consular-access>.

30. Ibid.

31. “India Demands Granting of ‘Full’ Consular Access to Jadhav” The Wire (25 July 2019), online: The Wire <https://thewire.in/diplomacy/kulbhushan-jadhav-india-demands-full-consular-access>.

32. Sidhant SIBAL, “India Demands Full Consular Access to Kulbhushan Jadhav” DNA India (3 August 2019), online: DNA India <https://www.dnaindia.com/india/report-india-demands-full-consular-access-to-kulbhushan-jadhav-2778408>.

33. India has already highlighted this point in its written pleadings; see Memorial of India, supra note 1 at 65–70.

34. Jadhav was convicted solely on the basis of his “confession” before the magistrate. Jadhav, during the review process, if conducted through civil courts, can submit that his confession was taken under torture.

35. Memorial of India, supra note 1 at 62–78 (India believes that the Pakistani military courts system is not fair, independent, and transparent); see also SHAH, Niaz A., “The Right to a Fair Trial and the Military Justice System in Pakistan” (2016) 7 Journal of International Humanitarian Legal Studies 330 at 352, 350CrossRefGoogle Scholar (which finds that the Pakistani military justice system blatantly violates fair trial standards: it is part of the Executive and is neither independent nor impartial).

36. Statute of the International Court of Justice, 26 June 1945, U.S.T.S. 993 (entered into force 24 October 1945), art. 60.

37. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Order of 16 July 2008, [2008] I.C.J. Rep. 311 at 323, paras. 44–6 [Provisional Measures Order 2008]; Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment, 27 November 1950, [1950] I.C.J. Rep. 395 at 402.

38. Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, 10 December 1985, [1985] I.C.J. Rep. 192 at 216–17, paras. 44–6; Request for Interpretation of the Judgment of 11 June 1998 in the Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, 25 March 1999, [1999] I.C.J. Rep. 31 at 36–7, para. 12.

39. Provisional Measures Order 2008, supra note 37 at 323, para. 44.

40. International Court of Justice Rules of Court (1978), 14 April 1978, 17 I.L.M. (1978) 1286 (entered into force 1 July 1978), art. 98(2), online: ICJ <https://www.icj-cij.org/en/rules>.

41. Provisional Measures Order 2008, supra note 37 at 325, para. 53; Request for Interpretation 2009, supra note 23 at 9, para. 17.

42. Earlier in 2018, Pakistan provided a visit to Jadhav's mother and wife in the presence of governmental officials and with a tight security check-up. See infra note 46.

43. Art. 36(2) of the VCCR says that the right to consular access “shall be exercised in conformity with the laws and regulations of the receiving State”.

44. Ibid., a proviso to art. 36(2).

45. “Pakistan Prison Rules, 1978: Rules for the Superintendence and Management of Prisons in Pakistan”, Justice Project Pakistan (n.d.), online: Justice Project Pakistan <https://data.jpp.org.pk/en/document/ij4ejiwvn1e?page=2>.

46. “Statement by the Official Spokesperson on Shri Kulbhushan Jadhav's Meeting with His Family”, Ministry of External Affairs, Government of India (26 December 2017), online: MEA <https://mea.gov.in/press-releases.htm?dtl/29239/statement+by+the+official+spokesperson+on+shri+kulbhushan+jadhavs+meeting+with+his+family>.

47. The Pakistan Prisons Act of 1894, ss. 40, 41; Devirupa MITRA, “India Likely Won't Be Allowed to Speak to Kulbhushan Jadhav in Private. Here's Why” The Wire (22 July 2019), online: The Wire <https://thewire.in/diplomacy/kulbhushan-jadhav-consular-access-icj-india-pakistan>.

48. Quigley et al., supra note 5 at 59–63.

49. For instance, see Consular Convention Between the United States and the United Kingdom, 6 June 1951, 3 U.S.T. 3426 (entered into force 7 September 1952), art. 16(1); Consular Convention Between Sweden and the United Kingdom, 14 March 1952, 202 U.N.T.S. 2731 (entered into force on 24 September 1952), art. 19(2); Philippines-Spain Consular Convention, 20 May 1948; the United Kingdom-Italy Consular Convention, 1 June 1954. According to the State Department, the US has bilateral agreements with thirty-five countries which allow their consular officers to converse with their nationals in private. These countries are Antigua and Barbuda, Bahamas, Barbados, Belize, Brunei, Costa Rica, Cyprus, Dominica, Fiji, Gambia, Ghana, Grenada, Guyana, Ireland, Jamaica, Japan, Kiribati, Kuwait, Malaysia, Malta, Mauritius, Nigeria, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Seychelles, Sierra Leone, Singapore, Tanzania, Tonga, Trinidad and Tobago, Tuvalu, the UK, Zambia, and Zimbabwe. In cases of nationals of other counties, the manual issued by the State Department to law enforcement officials at federal, state, and local levels provides that privacy is encouraged but not required. See the United States Department of State, Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them, 5th ed. (Washington, DC: U.S. Department of State, 2018) at 7–8, 33.

50. Summary Records of Plenary Meetings and of the Meetings of the First and Second Committees, United Nations Conference on Consular Relations (Vol. I), UN Doc. A/CONF.25/16 (1963) [UN Conference on Consular Relations (Vol. I)]; Annexes; Vienna Convention on Consular Relations; Final Act; Optional Protocols; Resolutions, United Nations Conference on Consular Relations (Vol. II), UN Doc. A/CON.25/16/Add.1 (1963) [UN Conference on Consular Relations (Vol. II)].

51. Summary Records of the Twelfth Session, Yearbook of the International Law Commission 1960 (Vol. I), UN Doc. A/CN.4/SER.A/1960 (1960) [ILC Yearbook 1960 (Vol. I)]; Documents of the Twelfth Session Including the Report of the Commission to the General Assembly, Yearbook of the International Law Commission 1960 (Vol. II), UN Doc. A/CN.4/SER.A/1960/Add. 1 (1960); Summary Records of the Thirteenth Session, Yearbook of the International Law Commission 1961 (Vol. I), UN Doc. A/CN.4/SER.A/1961 (1961) [ILC Yearbook 1961 (Vol I)]; Documents of the Thirteenth Session Including the Report of the Commission to the General Assembly, Yearbook of the International Law Commission 1961 (Vol. II), UN Doc. A/CN.4/SER.A/1961/Add. 1 (1961) [ILC Yearbook 1961 (Vol. II)].

52. ILC Yearbook 1960 (Vol. I), supra note 51 at 42–62.

53. Ibid., at 42.

54. Ibid. (emphasis added).

55. Ibid., at 42, para. 4.

56. Ibid., at 42, para. 5 (emphasis added).

57. Ibid., at 42, 44. In this regard, the observation made by Mr Pal, another member of the ILC, is also equally important. He said that the provision enabling consuls to converse privately with detained nationals in such a situation of need can enable them to talk and communicate freely with their consul without thereby jeopardizing their defence. He was also in disagreement with Mr Ago's view that such provision should be made subject to the principle of reciprocity. Mr Pal viewed that such should be inserted without any bargaining qualification.

58. Ibid., at 57.

59. Ibid., at 45–47. Mr Amado observed that the proposed art. 30A was a most welcome advancement in the legislation on consular relations. Mr Bartos viewed that the provisions of art. 30A specified the duties of states in the matter of the right of communication, and that a great majority of states recognized the right of free communication between a consul and his nationals. Mr Scelle, Mr Sandstrom, and Mr Matine-Daftary also supported, in general, the relevance of art. 30A.

60. ILC Yearbook 1961 (Vol. II), supra note 51 at 113, art. 36, commentary, para. 5.

61. Ibid., at 112–13, art. 36(2) and para. 7; see Proposal by the Union of Soviet Socialist Republics: amendment to Article 36 of the draft convention, A/CONF.25/L.34, 16 April 1963. This proposal used the phrase “to nullify” which meant, according to the UK, to “render [the rights] completely inoperative”. But rights could be seriously impaired without becoming completely inoperative. Therefore, the UK preferred the positive approach to the second paragraph of art. 36 as approved by the Second Committee. Finally, the proposal of the Soviet Union was rejected and the UK's proposal was adopted; see UN Conference on Consular Relations (Vol. I), supra note 50 at 40.

62. VCCR, supra note 5, art. 36(2); this phrase was later added with the UK proposal to amend art. 36(2). See United Kingdom: Amendments to Article 36, United Nations Conference on Consular Relations (Vol. II), UN Doc. A/CONF.25/C.2/L.107 (1963), in UN Conference on Consular Relations (Vol. II), supra note 50 at 85.

63. ILC Yearbook 1961 (Vol. I), supra note 51 at 242, para. 25; ILC Yearbook 1961 (Vol. II), supra note 51 at 112; UN Conference on Consular Relations (Vol. I), supra note 50 at 35–43, 81–6, 331–48; UN Conference on Consular Relations (Vol. II), supra note 50 at 24, 130–2, 156, 169, 181.

64. This is one of the remedies which India asked the Court to declare; see Memorial of India, supra note 1 at 88.

65. Ibid., at 63–71.

66. Jadhav (India v. Pakistan), Order of 18 May 2017, [2017] I.C.J. Rep. 231 at 244–5, para. 56.

67. Jadhav (India v. Pakistan), Judgement, Separate Opinion of Judge Cançado Trindade, 17 July 2019, [2019] I.C.J. G.L. No. 168 at paras. 67–70.

68. International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force 23 March 1976) [ICCPR]. Pakistan acceded to the ICCPR on 23 June 2010, see “Status of Treaties—International Covenant on Civil and Political Rights”, United Nations Treaty Collection (last accessed 18 June 2020), online: UNTC <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en>.

69. Jadhav case, supra note 8 at paras. 36, 38, 135.

70. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (entered into force 27 January 1980).

71. “Agreement on Bilateral Relations Between the Government of India and the Government of the Islamic Republic of Pakistan (Simla Agreement)” United Nations Peacemaker (2 July 1972), online: UN Peacemaker <https://peacemaker.un.org/sites/peacemaker.un.org/files/IN%20PK_720702_Simla%20Agreement.pdf> at art. 1(ii).

72. PRATAP, Ravindra, “Provisional Measures and the Jadhav Case” (2017) 5 Groningen Journal of International Law 298 at 308–9CrossRefGoogle Scholar.