Jadhav Case (India v. Pakistan) (2019)

It is the Indian sequel to LaGrand, and the most recent statement of what Article 36 of the Consular Relations Convention requires and what follows from its breach. It is also a careful lesson in the limits of the Court's jurisdiction under a compromissory clause, and in why annulment is not the automatic remedy for a consular breach.

Since 3 March 2016 Kulbhushan Sudhir Jadhav has been in the custody of Pakistani authorities. The circumstances of his apprehension are in dispute. India says he was kidnapped from Iran, where he was residing and carrying on business after retirement from the Indian Navy, and was transferred to Pakistan and detained for interrogation. Pakistan says he was arrested in Balochistan near the Iranian border after illegally entering Pakistani territory, in possession of an Indian passport bearing another name, and accuses him of espionage and terrorism on behalf of India.

On 25 March 2016 Pakistan raised the matter with the High Commissioner of India and released a video in which he appears to confess; the circumstances in which the video was recorded are unknown to the Court. On the same day Pakistan notified the permanent members of the Security Council, and India, by Note Verbale, noted the purported arrest of an Indian and made requests. He was tried and sentenced by a military court.

1. Was Mr Jadhav informed of his rights under Article 36(1)(b)?
2. Was India informed of the arrest and detention without delay?
3. Was consular access provided?
4. What remedy follows, and can the Court annul the conviction and sentence?

Pakistan breached Article 36 in three ways: by not informing Mr Jadhav of his rights; by not informing India without delay of his arrest and detention; and by denying consular access. The first and third breaches are of a continuing character, so Pakistan must cease them. The remedy is effective review and reconsideration of the conviction and sentence, by means of Pakistan's own choosing, with a continued stay of execution as an indispensable condition.

Failure to inform the individual. Pakistan did not contest India's contention that Mr Jadhav was not informed of his rights. Instead it maintained throughout that the Convention does not apply to a person suspected of espionage. The Court inferred from that position that Pakistan did not inform him, and concluded that it breached its obligation to do so.

Failure to inform India without delay. There was a delay of some three weeks between the arrest on 3 March 2016 and the notification to India on 25 March 2016. The Court recalled the interpretation it had reached before: neither the terms of the Convention as normally understood nor its object and purpose suggest that the words without delay are to be understood as meaning immediately upon arrest and before interrogation, and "there is no suggestion in the travaux that the phrase" bears different meanings in each of the three sets of circumstances in which it is used in Article 36(1)(b). Taking account of the particular circumstances, "the fact that the notification was made some three weeks after the arrest, in this case, constitutes a breach of the obligation to inform" without delay.

The lesson is that without delay is not a fixed period. It is assessed on the circumstances, and three weeks failed.

Individual rights, and why they matter procedurally. "Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person." The rights are the individual's; the standing to assert them here is the State's, and it comes from the Optional Protocol.

Denial of consular access. Article 36(1)(c) gives consular officers the right to arrange legal representation for a detained national. The Court reasoned from the practical premise: "The provision presupposes that consular officers can arrange legal representation based on conversation and correspondence with the" "detained person." Pakistan said Mr Jadhav was allowed to choose a lawyer but opted for a defending officer qualified for legal representation. The Court held that even if established, this "does not dispense with the consular officers' right to arrange for his legal representation." Pakistan therefore breached Article 36(1)(a) and (c) by denying access, contrary to the right to visit, to converse and correspond, and to arrange legal representation.

Continuing breaches and cessation. The first and third breaches are internationally wrongful acts of a continuing character. Pakistan is therefore under an obligation to cease those acts and comply fully: it must inform Mr Jadhav without further delay of his rights under Article 36(1)(b) and allow Indian consular officers access and the arrangement of legal representation.

The jurisdictional limit. India asked the Court to declare the military court's sentence violative of international law. The Court recalled that its jurisdiction rests on Article I of the Optional Protocol and "is limited to the interpretation or application of the Vienna Convention and does not extend to India's claims based on any other rules of international law." The remedy therefore repairs only the injury caused by the breach of Article 36, and not, for example, of the Covenant.

Why restitution in integrum was refused. India sought annulment of the military court's decision, restraint on giving effect to the sentence, release and safe passage. The Court refused, on a ground that must be understood precisely: "it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention." The breach is the failure of notification and access, not the trial outcome. Nor is it "to be presumed that partial or total annulment of conviction or sentence provides the necessary and sole remedy in cases of violations of Article 36 of the Vienna Convention".

Effective review and reconsideration. The appropriate remedy, which Pakistan itself acknowledged, is review and reconsideration of the conviction and sentence. Special emphasis falls on its being effective: it "must ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee" "that the violation and the possible prejudice caused by the violation are fully examined. It presupposes the existence of a procedure which is suitable for this purpose."

Which procedure is suitable? Normally the judicial process. The Court examined Pakistan's law with care. Article 199(3) of the Constitution has been interpreted by the Supreme Court of Pakistan as limiting the availability of review for a person subject to any law relating to the Armed Forces, including the Pakistan Army Act 1952, review over a Field General Court Martial being available only on grounds of coram non judice, want of jurisdiction, or mala fides including malice in law. Article 8(1) voids laws inconsistent with fundamental rights, but does not apply to the Pakistan Army Act by virtue of a constitutional amendment. So it was "not clear whether judicial review of a decision of a military court is available on the ground that there has been a violation of the rights set forth in Article 36, paragraph 1".

Clemency is not enough by itself. "the clemency process is not sufficient in itself to serve as an appropriate means of review and reconsideration but that appropriate clemency procedures can supplement judicial review and reconsideration, in particular where the judicial system has failed to take due account of the violation of the rights set forth in the Vienna Convention."

Fair trial. Respect for the principles of a fair trial "is of cardinal importance in any review and reconsideration", and in the circumstances of this case is essential for effectiveness. The violation and its implications for the principles of a fair trial should be fully examined and properly addressed, and any potential prejudice and the implications for the evidence and the right of defence should receive close scrutiny.

The stay. The Court recalled its provisional measure directing Pakistan to take all measures at its disposal to ensure that Mr Jadhav is not executed pending the final decision, and held that "a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav."

• The three breaches must be listed separately, because their character differs: failure to inform the individual and denial of access are continuing; failure to notify India without delay is completed.
• On remedies, the chain is: cessation of the continuing breaches, then effective review and reconsideration by means of Pakistan's own choosing. Annulment is not presumed to be the necessary and sole remedy, and the Court will not grant release.
• The jurisdictional point is worth a paragraph in any answer on the Court's competence: a compromissory clause confines the Court to the instrument that contains it, whatever else the applicant complains of.
• Read with LaGrand, which established both the individual-rights reading of Article 36 and the review-and-reconsideration remedy, and with the Tehran Hostages case for the diplomatic branch of the same body of law.