THE INTERNATIONAL COURT OF JUSTICE HAS HELD THAT ESPIONAGE IS NOT AN EXCEPTION TO RIGHT TO CONSULAR ACCESS UNDER VIENNA CONVENTION

Recently, the International Court of Justice (ICJ), at The Hague, Netherlands, has directed the Pakistan Government to allow consular access to Mr. Kulbhushan Jadhav and for India to arrange for Mr. Jadhav’s legal representation. It further held Pakistan liable for the violation of Vienna Convention on Consular Relations 1963 (the Convention) by not informing Mr. Jadhav about his rights to consular access under Article 36 (1) (b) of the said Convention.

The said Convention lays down the framework for consular relations between various countries with the object of protecting the interests of their countrymen in the host country, and also, for furthering the commercial and economic relations between the two states.

In the present case, Mr. Jadhav was earlier arrested by the Pakistani forces in Baluchistan Province of Pakistan alleging that he was a spy and that he posed a threat to the sovereignty of Pakistan. Later on, he was charged with the offences of espionage and was sentenced to death penalty by the Military Court of Pakistan. Throughout this period, India had been requesting the Pakistan Government for consular access for Mr. Jadhav under the said Convention, but it had been denied to him. Thereafter, the Military Court of Pakistan sentenced him to death, without granting consular access to him and without informing the Indian Government about his arrest/detention.

To this, the Pakistan Government primarily argued that under customary international law, consular access cannot be allowed to a spy and that the Convention is also not applicable in espionage cases.

But the ICJ had rejected these contentions of Pakistan and held that after the codification of consular rights in the form of Vienna Convention, there has been no scope left for applicability of customary international law. Further, that the Convention does not distinguish espionage cases with other cases, and therefore, the Convention is equally applicable to espionage cases. Thus, the ICJ stayed the death penalty awarded to Mr. Jadhav by the Military Court of Pakistan and allowed consular access to Mr. Kulbhushan Jadhav and the Indian Government.

This decision finds significance with regard to international criminal law as it strengthens the applicability of Vienna Convention and at the same time its enforceability among its member states.

Sourabh Kumar Mishra

Senior Associate

The Indian Lawyer