When it comes to international law, it is mutual respect for rights that is paramount.
International law is the last refuge for those without options – militarilistic or diplomatic. With no leverage except international comity, it relies on countries mutually respecting their obligations, such that reciprocity is its lynchpin. Even the International Criminal Court’s remedy, in such rare cases where jurisdiction does lie with it for breaches of international law, is moral opprobrium and the court allowing countries to retaliate against those found to be breaching international law. International law has no other force of law.
Pakistan’s violation of international law in the Kulbhushan Jadhav case is based on not allowing him consular access till date. The Vienna Convention on Consular Relations, 1963, is perhaps the most observed of international treaties. India has signed and ratified it, as has Pakistan. Countries have a self-interest that their diplomatic and consular staff be protected, even in unfriendly countries, and they be able to protect their citizens, including assisting them when arrested. Article 36(1)(b) of the convention mandates that the person be informed of their right to consular access immediately, and the consular authorities be informed of the arrest when it happens and visit them in jail and arrange for legal assistance. India has not enacted a domestic legislation despite being a signatory, just as it has not done in other treaties such as the Convention against Torture, making it an outlier in international law.
Indian courts have not given foreign nationals the explicit right to consular access. When petitioned by British nationals in David Patrick Ward vs Union of India, 1992, the Supreme Court refused to accede to the British High Commission’s request to transfer them from Naini Jail in Allahabad to Tihar Jail in Delhi, holding that they could visit their citizens in Allahabad, but did not rule on the existence of the Vienna Convention right.
In Jamal Mirza & Ors. vs State, 2012, where Bangladeshi citizens were sentenced to life for murdering a West Delhi man in a botched house robbery in West Delhi, the Delhi high court rejected such a right explicitly. I had raised the argument for one of the appellants in the appeal and argued that a rejection would imperil Indians imprisoned abroad. The Delhi high court, instead, limited itself to a technical interpretation that rights in international treaties do not form a part of domestic law. It was held that non-compliance with the Vienna Convention did not mitigate his due process rights as there was no domestic law granting those rights.
This denial of consular rights in domestic legislation as well as a case law significantly weakens India’s case for Jadhav. When it comes to international law, it is mutual respect for rights that is paramount. A good case in point is Avena and Other Mexican Nationals (Mexico vs United States of America), an International Court of Justice (ICJ) case where Mexico took the US to court for Mexican citizens on death row who had been denied their rights under the Vienna Convention. The ICJ ruled in Mexico’s favour, as the state of Texas refused to comply with the judgment, stating that the US obligations under the Vienna Convention did not apply to the state of Texas. (Unlike India, most criminal cases in the US are under state penal codes).
Investigating agencies in India, often of their own accord, and regardless of the courts’ and government’s failure to effect the convention, do comply with the Vienna Convention, informing high commissions and embassies when their citizens are arrested. However, a lot remains to be done.
In the decades following independence, India was an active player in international law – signing and ratifying treaties and actively participating in the construction of the post Second World War international legal regime. That approach was gradually discarded for prickly insularity masquerading as sovereignty. However, our military and diplomatic power, and foreign policy, does not warrant such a cavalier approach to international law. Comity and reciprocity are important tools for protecting India’s interests, which includes the safety of its citizens and the protection of their rights. Our demand for the rule of international law, in cases such as Jadhav’s, would have greater resonance if charity was to begin at home.
Avi Singh is an advocate who specialises in criminal law and international law. He has handled numerous cases at international tribunals and courts, including the Radovan Karadzic and Charles Taylor trials. He currently runs his own practice in Delhi and also serves as the Additional Standing Counsel (Criminal) for the Government of NCT of Delhi.