One man’s freedom fighter is another man’s terrorist
When we look back into the history of legal systems, we often find justice being torn between the law and morality. What is right? What is legal? Well, these questions get more complicated when it comes to espionage. A spy is a hero and a traitor. The Jadhav case is one where these questions were raised within the doors of the International Court of justice. The parties to the case are India and Pakistan, still pounding with the terrific disaster of the partition where hatred is easy but diplomacy is difficult. With a bitter relationship between the parties to the case, disputed facts of the case, ambiguous provisions of the international treaty, and highly anticipated consequences of global concern in hand, the court delivered a meticulous judgment upholding the beacon of justice.
Outline of the case:
The Jadhav case is unique in international jurisprudence as it escalated the applicability of international law on unprecedented levels in various arenas which includes human rights protection, ICJ jurisdictional issue, implementation mechanism and importance of clear and correct interpretation of critical provisions thus challenging the global judicial system. In this case, India approached the International court of justice to institute proceedings against Pakistan for violating the Vienna Convention of consular access. Remarkably, this case did not merely focus on consular access but also gave paramount decisions on the sphere of international law like the prevalence of international treaty obligations over bilateral agreements and so on, thereby making it a landmark verdict.
Journey of the case:
In response to an allegedly illegal arrest of an Indian national, Kulbushan Jadav, by Pakistan, India approached the doors of ICJ to seek proper relief. On May 8, 2017, a case was filed against Pakistan by India for vehemently violating all the directions mentioned in Article 36 of VCCR, pertaining to the particulars of available consular access.
Kulbushan Jadav, as claimed by India, was a retired Military officer, who was having a business at the Iran Pakistan border. Later he was kidnapped by Pakistan for espionage suspicion. Now, Pakistan claimed that Jadav was connected to an illegal border crossing into Pakistan and possessed an illegal passport. Nonetheless, both India and Pakistan agreed that Jadhav was in Pakistan’s custody since March 3, 2016. The arrest of Jadhav came to the public on March 25, 2016, only when Pakistan approached the Indian High commissioner with a confessional video of Jadav, where he explains his connections and association with the Research and Analysis Wing. In the same instance, India made requests for Jadhav’s consular access to Pakistan.
On July 22, 2016, Jadhav had purportedly made a confessional statement that was recorded before the relevant magistrate. While Pakistan based its claims based on this video of Jadhav;s confession obtained by Pakistan, the same was the moot point from India’s side. According to Pakistan, the confession obtained from Jadhav was done as per the mandate of law. However, the circumstance at which the video recording was obtained remained unclear, even in the eyes of ICJ. Thereafter multiple requests for consular access by India were rejected by Pakistan, as they barter for Mutual Legal Assistance requested by Pakistan was not settling with India. However, before all these barters, Pakistan is at greater blame, for inherently denying Consular access as Under Article 36, which was supposed to be done immediately after the arrest.
In a state of complexity in fats and cases from either party, the court was approached to find a settlement.
The Key Contentions:
Both the parties, India and Pakistan raised the following key contentions in the Kulbhusan Jadhav case. Primarily, after India filing the petition before the ICJ, Pakistan brought its first contention regarding the admissibility of the Application. With respect to this, they raised three different objections based on India’s alleged abuse of process, abuse of rights and unlawful conduct. Whereas India contended that Pakistan violated the rights to consular access that are enshrined under the Vienna Convention even though Article 36 of the convention applies to those accused under espionage.
Through this petition before the ICJ, India contended the arrest of Jadhav as an illegal act and sought to deferment Jadhav’s death sentence, declare the decision of the Pakistan Military Court as invalid as it violates the said convention and also to send Kulbhusan Jadhav back to India.
Stand Taken by the Applicant State before ICJ – India
Harish Salve, Senior Advocate represented the Republic of India in favor of Kulbhusan Jadhav before the International Court of Justice and made his case under Article 36 paragraph 1 of the Statute of the ICJ, and Article 1 of the Optional Protocol to the Vienna Convention on Consular Relations the compulsory settlement of Disputes alleging violations of the convention by Pakistan.
This stand was taken by India because the Respondent state, Pakistan had failed to inform India about the arrest of Jadhav and also failed to inform his rights under the convention. Adding to that Pakistan denied the consular access that was sought and it was one of the primary rights enshrined under Article 36 (1) of the convention. It firmly argued that no bilateral agreement would supersede the convention that was already established.
The reason for firmly believing and bringing in the stand of violation of the consular rights was, the denial of enshrined right in itself is a fact and evidence of abuse of rights. While both countries had a different interpretation of fact per se regarding the arrest of Kulbhusan Jadhav, the law was the major determining factor in the case. Pakistani authorities had denied the right to free and fair trial and had violated the ICCPR. Also, the right to legal representation cannot be denied at any time because it is one of the major grounds for the right to free trial. Lastly, while the Respondent state relied upon the video confession, Applicant state denied to consider it as evidence because the circumstances under which the video confession was recorded cannot be known.
With the above-said stance India wanted the Hon’ble ICJ to declare that the sentence of the military court is in brazen defiance with Vienna convention and elementary human rights of Jadhav as violated and further declare that India is entitled to Restitutio in Integrum. Along with the remedies, India also sought for Restraining Pakistan from giving effect to the sentence that was pronounced.
Stand Taken by the Respondent State Before ICJ – Pakistan
Mr. Khawar Qureshi, Advocate represented the Islamic Republic of Pakistan against the accused Kulbhusan Jadhav before the International Court of Justice and made their counter stand by stating that India had made abuse of process, abuse of rights. Also, it is unlawful to conduct from the part of India as it doesn’t accept the non-applicability of the convention in the present case, and adding to it there is a Bilateral agreement that allows the states to decide the case merits on its own.
The main stand that the Pakistani authorities took was, the 2008 bilateral agreement entered by India and Pakistan supersedes the jurisdiction of Article 36 of the convention. They also claimed there were procedural measures alternative to the application before ICJ. Indeed, that has to be satisfied first.
Pakistan submitted that India’s approach to the case of Kulbhusan Jadhav, following its invocation of the Court’s jurisdiction by its Application and Request for the Indication of Provisional Measures amounts to an abuse of the Court’s process. Further, Pakistan relied upon several principles and cases to say that the court should dismiss India’s claim on the ground of abuse of rights. Pakistan contended that the concept of abuse of rights has many facets and the core point is that a subjective right or a competence is exercised in some way that the legal order disapproves.
Pakistan also raised their contention against the discrepancy regarding the nationality of Mr. Kulbhusan Jadhav and alleged that India assisted Jadhav in carrying out criminal activities. Also not supporting Pakistan’s investigation concerning the case is indeed unlawful conduct of the Indian authority.
Examination of Precedents Applied
The ICJ in Jadhav case referred to the following two precedents:
- Germany v. The United States (also called as LaGrand case)
In this case, Germany approached the International Court of Justice against the United States’ execution of a German national Walter LaGrand. On June 27, 2001, the ICJ gave its judgment in favour of Germany and held that the Vienna Convention on Consular Relations on the basis of its plain meaning granted individual rights, and that domestic laws could not limit the same.
- Mexico v. The United States (also called Avena case)
In this case, Mexico filed in the ICJ against the United States of America for violating the Vienna Convention on Consular Relations by arresting, detaining, trying, convicting, and ordering execution of 54 Mexican nationals without providing consular access to Mexico. The ICJ ruled that the United States by not informing the appropriate Mexican consular post without delay had breached their obligation as set forth under Article 36 paragraph 1 of the Vienna Convention on Consular Relations.
Both the precedents were in favour of India in its merits. It was established by these ICJ precedents that a violation of the Vienna convention will follow with review and reconsideration of its process. Pakistan should not follow the footsteps of the US, which defied the ICJ’s ruling and work instead for an efficient process of justice for Jadhav. Pakistan should remember the final test of civilization of a people is the respect they have for law.
Examination of evidence pursued
- Pakistan’s Letter of Assistance for Criminal Investigation against Indian National Kulbhushan Sudhair Jadhav
Pakistan claimed that India has not provided the court with his authenticated passport in his real name; thereby India has failed to prove Mr. Jadhav’s nationality. This argument is very crucial in application of Article 36 of the Vienna Convention as a state can claim consular access only to its national. In this regard, the Court pointed out the evidence of Pakistan’s Letter of Assistance for Criminal Investigation against Indian National Kulbhushan Sudhair Jadhav to India. From this evidence, it was derived that both parties are clear that Jadhav is of Indian nationality.
- Indian passport in Jadhav’s possession during arrest
The obligation to inform the sending state about arrest of its national under Article 36 mentions it should be done without delay. Pakistan contented that without delay does not mean immediately. The court held that such delay should be reasonable as in unclear nationality of the arrested. In the present case, on 3rd march during arrest itself, Jadhav was in possession of an Indian passport bearing the name Hussein Mubarak Patel, with which Pakistan could have concluded that Jadhav was likely to be an Indian national, thus triggering its obligation to inform India of his arrest in accordance with Article 36, paragraph 1 (b), of the Vienna Convention.
- Pakistan’s démarche protesting the illegal entry into Pakistan of a RAW officer
While dealing with the question of when Pakistan informed India about Jadhav’s arrest, this was the evidence referred to by the court. The Court said that there is no mention of the manner in which the receiving State should inform the consular post of the sending State of the detention of one of its nationals Article 36, paragraph 1 (b). The necessary point is Pakistan’s action on 25 March 2016 enabled India to make a request for consular access on the same day. Hence, the court concluded the demarche to be sufficient notification of Jadhav’s detention to India.
Arguments and Reasoning Extracted – An analysis:
India invoked ICJ’s jurisdiction on Article 36 paragraph 1 of Vienna Convention and Article 1 of Optional Protocol. It is relevant to note that at the time of filing of the application, both India and Pakistan were parties to both the convention and protocol without any reservations or declarations. The court admitted India’s application. India also submitted that Jadhav’s elementary human right enshrined in Article 14 of ICCPR was violated by Pakistan. The court said it cannot deal with any other international law obligation than Vienna convention since jurisdiction in this case arises from just Optional Protocol.
Regarding Pakistan’s allegations against admissibility of India’s application:
- Regarding abuse of process on part of India: Firstly, it held that the clemency petition review as provided by Pakistani constitution poses considerable uncertainty on when a decision regarding Jadhav’s execution will be taken. Secondly, India need not have considered approaching an arbitral tribunal or a conciliation commission before approaching the ICJ as Article II and III of the Optional Protocol are not preconditions to approach ICJ. The first objection was rejected.
- Regarding abuse of rights on part of India: Firstly, it held that there is clear evidence that Jadhav is an Indian national as Pakistan itself confirms so in its Letter of Assistance for Criminal Investigation against Indian National Kulbhushan Sudhair Jadhav. Secondly, India not responding to Pakistan’s request for mutual legal assistance with its criminal investigations into Jadhav’s espionage and terrorism activities is a matter of merit and doesn’t concern inadmissibility. The second objection was rejected. The second and third arguments will be dealt in merits of case.
- Regarding unlawful conduct on part of India: The objection based on doctrine of clean hands is not enough to constitute inadmissibility. The objection based on the principle of ex turpi causa non oritur actio – means illegal acts cannot initiate action – was rejected as the alleged unlawful conduct of India does not prevent Pakistan’s duty to provide consular access. The objection based on the principle of ex injuria jus non oritur – means illegal acts cannot create law – was rejected as it was irrelevant to case.
Pakistan’s allegations on Applicability of Art.36 the Vienna Convention:
1. Espionage is an exception to Art. 36.
Court interpreted the Vienna Convention by applying the Vienna Convention on Law of Treaties 1969 (India not party, Pak signed on 29April 1970 not ratified).
1. a On interpreting in accordance with ordinary meaning of terms, the court finds that there is no mention of the term espionage nor the Article admits any exception for those suspected of espionage.
1. b On recourse to the travaux préparatoires of Article 36 to confirm its conclusion,
- International Law Commission (1960) – without delay was changed to without undue delay. In case of espionage, the sending state can be informed little late to give time to trace the accomplices of the captures.
- The Vienna Conference (1963) – the undue word was deleted. But nowhere, those suspected of espionage, were to be excluded from the protection of the Convention nor their right to consular access was to be denies.
2. Espionage is an exception to consular access in customary international law.
The Court notes that the preamble of the Vienna Convention states that the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention. Article 36 of the Convention expressly regulates the question of consular access to, and makes no exception with regard to cases of espionage.
3. Espionage is an exception to consular access acc to 2008 Agreement on Consular Access between India and Pakistan.
The court reminded the parties about the preamble of the Agreement that enshrines the objective of humane treatment of nationals of either country arrested, detained or imprisoned in the other country. The parties have entered into this agreement in full awareness of Article 73 of the Vienna Convention which suggests that it is consistent with the Vienna Convention to conclude only subsequent agreements which confirm, supplement, extend or amplify the provisions of that instrument, such as agreements which regulate matters not covered by the Convention. Article 36 already deals with consular relations, hence the 2008 agreement was just to confirm, supplement, extend or amplify the same. Therefore, it is unlikely the intention of the 2008 agreement is to curtail protection of Article 36 of the Vienna Convention.
Regarding Alleged Violations of Article 36 of the Vienna Convention on Consular Relations
1. Alleged failure to inform Mr. Jadhav of his rights under Article 36, paragraph 1 (b)
Pakistan itself gave a public statement that Jadhav does not deserve any consular access. So, it can be derived that he was not informed of his rights to consular access. Pakistan didn’t contest this contention. The court on these grounds found Pakistan guilty of violating Article 36, paragraph 1 (b) of the Vienna Convention.
2. Alleged failure to inform India, without delay, of the arrest and detention of Mr. Jadhav
The court held that since Pakistan did not informed Jadhav of his rights to consular access, he could not have requested for one. The court accepted that Pakistan did inform India about Jadhav’s detention through the issue of a démarche concerning the illegal entry into Pakistan of a RAW officer, but it was notified 3 weeks late. Hence, the without delay stipulation of Article 36, paragraph 1 (b) of the Vienna Convention is violated. Pakistan’s contention that without delay does not mean immediately was said to be invalid as such delay should be reasonable as in unclear nationality of the arrested. In the present case, on 3rd march during arrest itself, Jadhav carried an Indian passport, which immediately obligates Pakistan to inform India. Therefore, Pakistan has committed a breach of the obligation to inform without delay as required by Article 36, paragraph 1 (b), of the Vienna Convention.
3. Alleged failure to provide consular access
The Court is of the view that the alleged failure by India to co-operate in the investigation process in Pakistan does not relieve Pakistan of its obligation to grant consular access under Article 36, paragraph 1 (a), of the Vienna Convention. Consular officers have the right to arrange legal representation for a detained national of the sending State under Article 36, paragraph 1 (c). The claim by Pakistan that Jadhav rejected such legal representation was not enough for Pakistan to breach Article 36 as such denial should be preceded with conversation and correspondence with the consular officers. Therefore, Pakistan has committed breach of the obligations under Article 36, paragraph 1 (a) and (c), of the Vienna Convention.
Declaration of Judge Cançado Trindade:
Judge Cançado Trindade voted in favour of the International Court of Justice (ICJcurrent )’s decision in the matter of Jadhav (India v. Pakistan). On the basis of a reasoning that encompassed several aspects that, in his opinion, demand additional study, he arrived at the findings of the ICJ set forth in the dispositif of the present Judgment. He believed that, for example, the dispositif’s resolutory points Nos. (7) and (8) appear insufficient to him. And, on critical issues in the case d’espèce, he deviates from the Court’s reasoning. Indeed, in his current independent judgement, he felt compelled to concentrate on them, despite the typical and inappropriate pressures of time, in order to create the foundations of his own personal stance on the records.To that end, he began by addressing a point brought to the ICJ’s attention during the current proceedings in the case of Jadhav (paras. 24-25, India; and para. 26, Pakistan, — infra), namely, the jurisprudential construction with the legacy of the pioneering Advisory Opinion No. 16 (1999) of the Inter-American Court of Human Rights (IACtHR) on the subject, followed by the IACtHR’s Advisory He then went on to discuss the case law of the ICJ itself (2001-2004), which came after the IACtHR’s Advisory Opinion No. 16 (1999). 3. After that, he pointed out the flaws in the International Court of Justice’s reasoning in the instances of LaGrand (Germany v. United States of America) (2001) and Avena and Other Mexican Nationals (Mexico v. United States of America) (2004). The link between the right to information on consular assistance and human rights to due process and a fair trial was next on his agenda. He then spoke about the trend toward abolition of the death penalty, which can be seen today in the corpus juris gentium, which recognises the death penalty’s wrongfulness as a violation of human rights, as well as initiatives and efforts at the United Nations to condemn the death penalty on a global scale. Following that, he discusses how the death penalty has harmed human rights to such a huge amount. The road is therefore cleared for him to analyse long-standing humanist philosophy, which condemns the death penalty’s brutality as a violation of human rights. He then went on to discuss the need of seeking redress in a logical order. Last but not least, he concluded with an epilogue that summarised the points of his current distinct perspective. He thus purports to make it clear that my own understanding goes beyond the ICJ’s reasoning, in that he focused on the need to transcend the strictly inter-State outlook, and, moreover, on the right to information on consular assistance in the context of the guarantees of due process of law transcending the nature of an individual right, as a true human right, with all legal consequences that entails.
Declaration of Judge Sebutinde:
In the operative section (dispositif) of the judgment, Judge Sebutinde sided with the majority (para. 149). He believed that there are other areas of this issue on which the court should cast additional light, which would assist the reader in better grasping the case. This includes determining identification when two passports are held, applying the VCCR in the case of a bilateral agreement, and the influence of domestic legislation on the Vienna Convention’s right of consular access. He did, however, make an obiter dicta in his own decision in response to the same.
Declaration of Judge Robinson:
In the operative section of the Judgment (dispositif), Judge Robinson sided with the majority. He was primarily concerned with the Court’s jurisdiction, the relationship between Article 14 of the International Covenant on Civil and Political Rights and Article 36 (1) (c) of the Vienna Convention on Consular Relations, and Structural Integration with Article 31 (3) (c) of the Vienna Convention on the Law of Treaties. Adding to it, the Interpretation of Subsequent Agreements under Article 73 (2) of the Vienna Convention on Consular Relations, as well as the link between Article 73 (2) of the Vienna Convention on Consular Relations and the 2008 India-Pakistan Consular Access Agreement.
Declaration of Judge Iwasawa:
Judge Iwasawa agreed with the majority of the reasoning in the Judgment and ruled in support of all of the Court’s conclusions in the operative paragraph (Judgment, para. 149). furthermore, he had provided extensive explanations for the findings and expressed his views on various subjects not addressed by the Court in the Judgment. His main concerns were the application of the clean hand’s theory, in this case, the need that consular access is allowed without delay under anti-terrorism conventions, and the connection between the Vienna Convention and later agreements.
Dissenting opinion of Judge Jillani:
Several elements of the judgement, as well as other key arguments, were not endorsed by Judge Jilani. First, he believed the Court should have ruled India’s application inadmissible due to the country’s behaviour in the current case, which he viewed to be an abuse of rights. India’s reliance on the Vienna Convention on Consular Relations (hereafter “Vienna Convention” or “VCCR”) in this case, in his opinion, was incorrect and undermined the instrument’s entire intent and purpose. Second, the Court misinterpreted and considered Vienna Convention Article 73, paragraph 2 as nonsensical , which does not restrict States Parties from engaging into subsequent bilateral agreements. Despite this, the Court had overlooked the legal implications of the 2008 India-Pakistan Agreement on Consular Access (hereafter “2008 Agreement”), particularly in its point (vi). According to him, the Parties (India and Pakistan) intended to clarify the implementation of certain provisions of the Vienna Convention to the degree of their bilateral relations by concluding the 2008 Agreement, namely by recognizing that each contracting State may decide on the merits whether to permit nationals of the other contracting State arrested or detained on “political or security grounds” access and consular assistance. Third, even if the Vienna Convention applies to Mr. Jadhav’s case, Pakistan’s actions do not violate the Vienna Convention’s responsibilities under paragraph 1 of Article 36. Fourth, while the Court acknowledged Pakistan’s existing legal structure, it failed to realise that Pakistan’s established judicial review already adequately addresses the Court’s relief order. Finally, the Court’s decision looks to create a hazardous precedent at a time when countries are progressively confronted with transnational terrorist operations and looming national security risks. Terrorism had evolved into a systematic weapon of war, and governments would be foolish to ignore it. Such risks may properly justify limiting the extent of application of Article 36 of the Vienna Convention on Consular Relations in bilateral relations between any two States at any time.
- The proof of no communication or consular access arrangement with the sending state by the receiving state would frame a ground for establishing necessary jurisdiction under Article 36 of the convention and Article 1 of the Optional Protocol.
- Article 36 of the Vienna Convention when perused in its context and in light of the object and purpose of the Convention does not and cannot deny its protection to certain classes of people including even those associated with espionage. Per se such denying would contradict the very purpose of Article 36 of the convention.
- The sending state has no obligation to perform conditions put forth by the receiving state to have consular access with their national.
- Delay in informing the sending state about the detention of their national is accepted only in special circumstances as in unclear nationality of the arrested. If not, the receiving state is obligated to initiate communication with the sending state immediately.
- The 2008 Agreement which states that each side may examine a case on its merits in circumstances of arrest, detention, or sentence made on political or security grounds couldn’t be perused as denying consular access. The 2008 Agreement could only confirm, supplement, extend or amplify the the convention and couldn’t uproot Pakistan’s commitments under Article 36.
- Any such bilateral agreement couldn’t possibly limit the jurisdiction of the Court under the ICJ statute or under Vienna Convention.
- In a case instituted for violation of Article 36, the court will not interfere with the correctness of the conviction or sentencing of the sending state’s national, rather focuses on protecting his rights as guaranteed under the convention. Hence, restitution integrum of the case is not possible.
Judgment and my views:
The judgment by the International Court of Justice was delivered with an overwhelming 15:1 majority. The court found the jurisdiction in the particular case arises from Article 1 of the Optional Protocol and doesn’t break any of the international treaties besides the Vienna Convention. The three objections raised by the State of Pakistan with respect to the abuse of power, abuse of rights and unlawful conduct by India were dismissed and India’s application was accepted. Further, the court held that Pakistan has acted in breach of the convention and neglected to satisfy its commitments according to Article 36 of the Vienna Convention. The State of Pakistan had neglected to inform Kulbhushan Jadhav about his privileges which he had under Article 36(1)(b), by not informing India about the capture and confinement of Jadhav and finally by denying Consular Officers of India the access of Jadhav. These were all essentials for the Vienna Convention arrangement which Pakistan had ratified to with no reservations or declarations. Subsequently, Pakistan was held guilty of violation of Article 36 of the Vienna Convention.
The appropriate reparation in this case, the court found was to direct the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention. In light of the same, a continued stay of execution was issued.
On a side note, The international human rights claim under Article 14 of ICCPR was brushed away under the pretext of jurisdiction. Though it could not have formed the crux of judgment, it could have been mentioned while the court was scrutinizing the case. The Court did not lay much emphasis upon Article II and III of the Optional Protocol concerning the compulsory settlement of disputes 1963 in the same way they did for the Article I of the same protocol. The main reasons for the same were not clearly established as the issue of dispute resolution before submitting the said application before the ICJ was kept out of the question. The Court could have given a plain harmonious reading to the provisions of the bilateral agreement to understand the gist with regards to the same.
1. Brought focus to ineffective implementation of ICJ decisions:
The International Court of Justice has instilled incredible faith in global minds with respect to settlement of disputes and maintenance of international peace and security. Though there exists an obligation for all members to comply with ICJ’s decisions. In case of non-compliance, the ICJ has to turn to the United Nations Security Council for implementation of the same judgment. Here there comes – the veto – the line of difference between international relations and politics. It is relevant to note the enforcement by the UNSC of the ICJ judgment where the USA was held accountable for arming of rebels and ordered for repartition. But, the United States vetoed the enforcement of the judgment against itself. The same could happen in Jadhav case too if China vetoed.
2. Crucial to Indian politics:
With India trying to re-establish its footing in International Politics, the Jadhav Case provides the perfect fiddle for it. If one looks at it from a neutral point of view, if Pakistan loses the case, and goes on to execute Jadhav that would make the Islamic Republic of Pakistan look bad on the International Sphere. Also if the enforcement mechanism under Article 94 of the United Nations Charter fails owing to a Chinese veto, India gets a chance to gain momentum in its campaign for restructuring of the United Nations Security Council. And if the ICJ judgment comes out in favour of India, and is enforced by Pakistan, then also it’s a win-win for the Government of India.
3. Respected protection of the convention to those involving in Espionage:
The International Court of Justice made it well profound that Article 36 of the Vienna Convention when perused in its context and in light of the object and purpose of the Convention does not and cannot deny its protection to those associated with espionage. This is very much commendable in the global laws governing espionage.
4. Emphasized individual rights under international law:
Article 36 is unique from the rest of the convention given that it stirs the debate of enforceability of individual rights. In theory, through its judgments in LaGrand and Avena, the ICJ has attempted to give clarity on the same. However, the domestic courts use ambiguity in provisions and lack of remedial framework in case of a breach to often leave the individual right remedy-less. Hence, there is a need for an amendment in the convention to clearly enunciate the rights, remedies and obligations of the convention itself.
 Freya Baetens, EJIL: TALK!, The International Court Of Justice Renders Its Judgment In The Jadhav Case (India V. Pakistan), July 18, 2019, Available At Https://Www.Ejiltalk.Org/The-International-Court-Of-Justice-Renders-Its-Judgment-In-The-Jadhav-Case-India-V-Pakistan/ (Last Visited On May 22, 2020).
 Jadhav (Ind. V. Pak.), Counter-Memorial Of Pakistan, December 13, 2017, I.C.J. G.L. No. 168, ¶23 (‘Counter-Memorial Of Pakistan’)
 Jadhav (Ind. V. Pak.), Counter-Memorial Of Pakistan, December 13, 2017, I.C.J. G.L. No. 168, ¶23 (‘Counter-Memorial Of Pakistan’).
 Clive Nicholls Et Al., The Law Of Extradition And Mutual Assistance, 61 (3rd Ed., 2013).
 Luke T. Lee J.D. & Jon Quigley, Consular Law And Practice, 41 (3rd Ed., 2008).
 Corfu Channel Case, Judgment Of April 9th, 1949: ICJ Reports 1949, P.4, P.22
 International Commission Of Jurists, UN Human Rights Committee, 120th Session, Geneva, 3-28 July 2017, Para 15.
 Remedies In International Human Rights Law, Third Edition, Dinah Shelton, Page 35
 Avena And Other Mexican Nationals (Mexico V. The United States Of America), Judgment, ICJ Reports 2004, P.12.
 Certain Questions Of Mutual Assistance In Criminal Matters (Djibouti V France); Free Zones Of Upper Savoy And The District Of Gex (Second Phase) (1930) PCIJ (Series A) No. 24.
 Professor Kolb’s ‘Good Faith In International Law’ (1st Ed, 2017), (Pages 133-134) [Volume 5/Annex 109]
 Lucrand (Gern7uny V. United Sfutes Of Americu), Judgrnent, I. C. J. Rc.Ports 2001, P. 466
 Avena And Other Mexican Nationals (Mexico V. United Slates Of America), Judgment, I. C. J. Reports 2004, P. 12
 Natasha Turak, CNBC NEWS, US Rejects International Court Of Justice Ruling On Iran, Continuing Its Isolationist Charge, October 5, 2018.
 Pritchard, Adam C. “Justice Lewis F. Powell, Jr. And The Counterrevolution In The Federal Securities Laws.” Duke L. J. 52, No. 5 (2003): 841-949.
 Sabina Veneziano, The Right To Consular Notification: The Cultural Bridge To A Foreign National’s Due Process Rights, Vol. 49(1) GEORGETOWN JOURNAL OF INTERNATIONAL LAW, 501–551 (2018).
 Avena And Other Mexican Nationals (Mexico V. United States Of America), Judgment, I.C.J. Reports 2004 (I), P. 43, Para. 63
 Application Of The Convention On The Prevention And Punishment Of The Crime Of Genocide (Croatia V. Serbia), Judgment, I.C.J. Reports 2015 (I), Pp. 45-46, Para. 85, And P. 68, Para. 153
 Jadhav (India V. Pakistan), Provisional Measures, Order Of 18 May 2017, I.C.J. Reports 2017, Pp. 244-245, Paras. 53-56
 United States Diplomatic And Consular Staff In Tehran (United States Of America V. Iran), Judgment, I.C.J. Reports 1980, Pp. 25-26, Para. 48.
 Immunities And Criminal Proceedings (Equatorial Guinea V. France), Preliminary Objections, Judgment, I.C.J. Reports 2018 (I), P. 337, Para. 151).
 Certain Iranian Assets (Islamic Republic Of Iran V. United States Of America), (Preliminary Objections, Judgment, I.C.J. Reports 2019, P. 44, Para. 122)
 Factory At Chorzów Case, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, P. 31; See Also Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, P. 67, Para. 110
 Robert E. Dalton, National Treaty Law And Practice: United States In Duncan B. Hollis, Merritt R. Blakeslee & L. Benjamin Ederington (Eds.), National Treaty Law And Practice, 788–790 (Martinus Nijhoff, 2005).
 United Nations, Doc. A/CONF.25/16/Add.1, Vol. I, Pp. 83-84, Para. 73)
Avena And Other Mexican Nationals (Mexico V. United States Of America), Judgment, I.C.J. Reports 2004 (I), P. 43, Para. 63
 Yury A. Kolesnikov, Meddling With The Vienna Convention On Consular Relations: The Dilemma And Proposed Statutory Solutions, Vol.40 MCGEORGE LAW REVIEW, 180–225 (2008).
 Anthony Bishop, The Unenforceable Rights To Consular Notification And Access In The United States: What’s Changed Since The Lagrand Case?, Vol.25 HOUS. J. INT’L L. 1, 2–4 (2002); LEE & QUIGLEY, Supra Note 3.
 William J. Aceves, The Vienna Convention On Consular Relations: A Study Of Rights, Wrongs, And Remedies, Vol.31 VAND. J. TRANSNAT’L L. 257, 315–317 (1998).
 Ivor Roberts (Ed.), Satow’s Diplomatic Practice, 143 (7th Ed., 2018).
 4 Cindy Galway Buys, Reflection On The 50th Anniversary Of The Vienna Convention On Consular Officials, Vol.38 SOUTHERN ILLINOIS UNIVERSITY LAW JOURNAL, 57, 63 (2014).
 Arwa J. Fidahusein, VCCR Article 36 Civil Remedies And Other Solutions: A Small Step For Litigants But A Giant Leap Towards International Compliance, Vol.5 SETON HALL CIRCUIT REVIEW, 273 (2008).