The Jadhav case and the right to consular assistance: ‘confessions’, spies, and remedies in international law

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Abstract

This article starts by exploring the nature of the right under Article 36 as having the character of both being a state right and an individual human right as recognised by the Inter-American Court of Human Rights then the International Court of Justice and considers the remedies provided in past ICJ cases in terms of the “review and reconsideration” of the impugned domestic court decisions and the procedural and substantive aspects of that remedy in comparison with those ordered by the Inter-American Commission on Human Rights. The article then seeks to highlight that the general international law principle flowing from the Court’s pronouncement in the Chorzow Factory case that ‘reparations must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed’ and the case law showing the availability of consequential remedies when combined with the possibility of the Court recognising Article 36 VCCR as creating individual human rights and the particular facts of the Jadhav Case may mean that the remedies claimed by India are more likely than “aspirational.”

Keywords

Remedies Vienna Convention on Consular Relations Due process Death penalty Terrorism India Pakistan Military courts 

Copyright information

© The Indian Society of International Law 2018

Authors and Affiliations

  1. 1.BarristerChurch Court ChambersLondonUK

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