This is the first time that either of the two countries has made a request of this kind in relation to persons accused of espionage or terrorism. While the domestic laws of Pakistan and India do not provide any guidance on consular access to persons accused of espionage or terrorism, the Vienna Convention on Consular Relations, 1963 (“Vienna Convention”), to which both India and Pakistan have acceded, allows states consular access to their nationals, arrested or detained in other states.
However, access to persons accused of grave charges such as espionage and terrorism requires greater inspection of the object and purpose of consular access under international law and its relevance in situations involving issues of national security of states. If Pakistan has, in fact, violated international law, India may have a number of remedies at its disposal for gaining access to Jadhav, including filing a case with the International Court of Justice (ICJ).
The law on consular access
Article 36(1) of the Vienna Convention affords the following privileges to the consular officers of states for communicating with their national detained in another state: (a) consular officers can freely communicate with nationals of the state where the individual has been detained; (b) upon request of the detainee, the detaining state must immediately inform the consular post of the detainee’s state and (c) consular officers can visit the detained individual and arrange for legal representation.
Pakistan appears to have complied with its obligations under sub-clause (a) of Article 36(1) by duly notifying India of the arrest and detention of Jadhav. It is unclear if the Pakistani authorities have also complied with sub-clause (b), in view of the lack of information on the circumstances under which Jadhav has been detained, and the treatment meted out to him by the Pakistani authorities. However, Pakistan’s rejection of India’s request for consular access to Jadhav is a direct violation of sub-clause (c) of clause (1) of Article 36.
The travaux préparatoires (“commentary”) on Article 36(1)(c) of the Vienna Convention imposes a mandatory obligation on the detaining state to allow consular officers of the detainee’s state to visit. Furthermore, as per the commentary, the obligation of providing consular access under sub-clause (c) is also fairly broad and covers a wide realm of cases, including where the national of a state has been placed in custody pending trial, and where criminal proceedings have been instituted against such national; where the national has been sentenced, but the judgment is open for appeal or where the judgment convicting the national has become final.
While it is unclear whether the non-compliance of Article 36(1)(c) would be permitted in specific situations concerning national security, it may be contended that the noticeably wide scope of the clause covers all situations of detention and arrest of persons, irrespective of the charge laid against such persons.
The status of alleged spies under international and domestic law
Acts of terrorism and espionage are considered to be two separate offences under international law. While there are no clear-cut definitions of either offence, customary international law – law that arises out of custom or recurring practice on the part of various states – provides some guidance on what these offences entail.
While terrorism has been clearly defined by international bodies such as the United Nations General Assembly in resolutions 49/60 and 51/210, acts of espionage undertaken during peacetime, which seems to be the accusation against Jadhav (and India), are not clearly defined. Nevertheless, the definition under the laws of war provides some guidance on what espionage essentially entails.
Similarly, the domestic laws of both India and Pakistan contain detailed provisions on acts of terrorism, but provide little guidance on acts of espionage, which could more generally be covered under acts that threaten national security. Regardless, the evidentiary burden applicable to persons accused of committing either of the two offences and the penalty levelled against such persons is enormously high, in view of prime considerations of national security and sovereignty (for example, the provisions of the Anti-Terrorism Act of Pakistan, 1997 and those of the Security of Pakistan Act, 2014). Furthermore, despite its broad scope, the rights under Article 36(1)(c) of the Vienna Convention are required to be exercised in conformity with the laws and regulations of the state where the national has been detained or arrested. As a result, some quarters may argue that Pakistan is not obligated to provide India with access to Jadhav.
However, the provision on adherence to domestic laws, in the context of consular access under the Vienna Convention must not be construed to disallow a detained person from availing of protections applicable to him or her on account of his detention or arrest.
A number of protections applicable to detained or arrested persons under the International Covenant on Civil and Political Rights, to which both India and Pakistan are a party, and under customary international law, dilute the evidentiary requirements under Pakistani law.
Furthermore, as per the commentary on the Vienna Convention, only the procedural aspects of meeting arrested or detained persons under the domestic law of the state where the person has been detained are required to be complied with in the context of Article 36(1)(c). These include cases such as applying to the magistrate for permission to communicate with the detainee (which may be denied at a particular stage of investigation, but may not be denied at a later stage), or adherence to prison regulations for meeting the convicted persons. However, consular access to detained or arrested persons is, itself, a substantive provision that is intended to serve as a check on the treatment meted out to such persons, and ensure that such persons are not coerced into accepting the charges laid against them by the detaining state – a valid concern in the light of Pakistan releasing a videotaped ‘confession’ by Jadhav.
The procedure by which such access is provided may be determined by the authorities of the detaining state. Consequently, compliance with the domestic law of Pakistan does not translate into an absolute denial of consular access to India under Article 36(1)(c) of the Vienna Convention.
Role of the International Court of Justice
From the above discussion, a case may reasonably be made out that Pakistan has violated its obligations under Article 36(1)(c) the Vienna Convention by rejecting India’s request to communicate with Jadhav.
As a possible measure of recourse, India may either continue to press for consular access to Jadhav through diplomatic channels, or it may consider referring the matter for resolution to the ICJ. Though India’s acceptance of ICJ jurisdiction bars a Commonwealth country from filing a case against it before the court, Pakistan does not appear to have a similar reservation and has accepted the compulsory jurisdiction of the ICJ (with general reservations which are not specific to India). The ICJ would also have jurisdiction through the Optional Protocol to the VCCR, which both India and Pakistan have signed.
Whatever path it chooses to take, India would need to act soon in order to ensure that an individual like Jadhav is not made a scapegoat in the ongoing political tension between the two nations.
Yashaswini Mittal is a research fellow at the Vidhi Centre for Legal Policy, New Delhi.
Note: The article has been edited to delete a reference to the 1971 ICAO case between India and Pakistan before the ICJ, which was limited to a dispute resolution clause under a treaty, and elaborate on the Optional Protocol route for establishing ICJ jurisdiction.