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The Jadhav Case Before the International Court of Justice

  • Article
  • Published:
Indian Journal of International Law

Abstract

The recently instituted case by India against Pakistan before the ICJ follows the trilogy of cases pertaining to violation of Article 36 of the Vienna Convention on Consular Relations (VCCR). In all three cases, the Court found that Article 36 has been breached and determined that the appropriate relief is ‘review and reconsideration’ of the consequences of such breach by domestic courts of the receiving state. Given the increasingly heightened tension between national security and human rights in the context of terrorism, the Court cannot afford to follow LaGrand and Avena. Doing so would ensure that the Indian national would be executed the way individuals in the previous three cases before the Court did. Yet, the Court’s Article 36 jurisprudence is not the only challenge in the Jadhav case. Questioning the very applicability of VCCR, Pakistan contends that VCCR does not apply to “spies and terrorists” and that KS Jadhav has confessed to being one. Pakistan further claims that, in any event, the applicable law in Jadhav is the bilateral agreement of 2008 between India and Pakistan, not Article 36 of VCCR. Within the framework of Article 38(1) of the Court’s Statute, this article explains how India could persuade the Court to go beyond ‘review and reconsideration’, annul KS Jadhav’s confession and the resultant conviction, and direct a retrial with full consular access. It also explains why Pakistan’s arguments questioning applicability of VCCR are unlikely to prevail even though they raise complex issues of treaty interpretation.

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Notes

  1. Jadhav Case (India v. Pakistan), instituted by India on 8 May 2017 (“Jadhav”). See, PS Rao, The Jadhav case (2017): India and Pakistan before the International Court of Justice, 56 Indian J Intl L (2016) 379–403.

  2. Vienna Convention on Consular Relations (Paraguay v. United States of America), Order of 10 April 1998, [1998] ICJ Rep. 426 (‘Breard’); LaGrand (Germany v. United States of America), Judgment of 27 June 2001, [2001] ICJ Rep 466 (‘LaGrand’); and Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, [2004] ICJ Rep 12 (Avena).

  3. Angel F. Breard, the foreign national in Breard, was executed few days after the Court issued provisional measures to prevent their execution. Conditional request of Paraguay for an order conclusively establishing facts, 9 October 1998 [1] <www.icj-cij.org/docket/files/99/13114.pdf>. Walter LaGrand, one of the two German nationals in LaGrand, was executed few days after the Court issued provisional measures to prevent their execution. LaGrand, at 480, [34]. Karl LaGrand, the other German national in LaGrand, was executed before Germany could approach the Court. LaGrand, 478 [29]. Medellin, one of the Mexican nationals in Avena, was executed after the Court finally decided the case in Mexico’s favor. McKinley Jr., Texas Executes Mexican Despite Obligations, The New York Times 6 August 2008, <www.nytimes.com/2008/08/06/us/06execute.html> (last visited 26 July 2017).

  4. India’s Application instituting proceedings, 8 May 2017 [5] (India’s Application).

    <www.icj-cij.org/docket/index.php?p1=3&p2=3&k=b8&case=168&code=ipak&p3=0>

  5. India’s Application, Annex 2, Note Verbale no. Ind(III)-2/13/2016 (23 January 2017).

  6. India’s Application, Annex 1, Note Verbale no. ISL/103/1/2016 (25 March 2016).

  7. India’s Application, [6] and Annex 1, Note Verbale no. ISL/103/14/2016 (30 March 2016); Note Verbale no. ISL/103/14/2016 (6 May 2016); Note Verbale no. ISL/103/14/2016 (10 June 2016); Note Verbale no ISL/103/14/2016 (11 July 2016); Note Verbale no. ISL/103/14/2016 (26 July 2016); Note Verbale no. ISL/103/14/2016 (22 August 2016); Note Verbale no. ISL/103/14/2016 (3 November 2016); Note Verbale no. ISL/103/14/2016 (19 December 2016); Note Verbale no. J/411/08/2016 (3 February 2017); Note Verbale no. ISL/103/14/2016 (3 March 2017); Note Verbale no. ISL/103/14/2016 (31 March 2016); Note Verbale no. J/411/8/2016 (10 April 2017).

  8. India’s Application, Annex 6, Press Statement by Mr. Sartaj Aziz, Adviser to the Prime Minister on Foreign Affairs on 14 April 2017. This statement provides a chronological account of the different stages of the criminal proceedings.

  9. India’s Application, Annex 2, Note Verbale no. Ind(III)-2/13/2016 (23 January 2017).

  10. India’s Application, Annex 1, Note Verbale no. J/411/08/2016 (3 February 2017) and Note Verbale no. ISL/103/14/2016 (3 March 2017).

  11. India’s Application, Annex 3, Note Verbale no. Ind(III)-2/13/2016 (21 March 2017).

  12. India’s Application, Annex 1, Note Verbale no. ISL/103/14/2016 (31 March 2017).

  13. India’s Application, Annex 4, Inter Services Public Relations Pakistan, Press Release no. PR-193/2017-ISPR (10 April 2017).

  14. Ibid.

  15. India’s Application, Annex 5, Note Verbale no. Ind(I)-5/20/2017 (10 April 2017).

  16. India’s Application, Annex 1, Note Verbale no. J/411/8/2016 (10 April 2017), Note Verbale no.ISL/103/14/2016 (14 April 2017), Note Verbale No.ISL/103/14/2016 (14 April 2017) and Note Verbale no. J/411/8/2016 (19 April 2017).

  17. India’s Application, Annex 1, Note Verbale no. ISL/103/1/2016 (26 April 2017). Also see, Annex 8 (27 April 2017), a letter from India’s External Affairs Minister to the Advisor to Prime Minister on Foreign Affairs requesting information and documents related to Jadhav’s case with a view to prepare an appeal on his behalf.

  18. Jadhav, Order on Provisional Measures, order of 18 May 2017 <www.icj-cij.org/docket/index.php?p1=3&p2=3&k=b8&case=168&code=ipak&p3=3>.

  19. India’s Application, at 13-16 [25-33].

  20. Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 24 April 1963, 596 UNTS 487. Article I provides: ‘Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present protocol.’

  21. List of signatories to VCCR available at

    <https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=III-6&chapter=3&clang=_en> (last visited on May 27, 2017); List of signatories to the Protocol available at:

    <https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=III-8&chapter=3&clang=_en> (last visited on May 27, 2017).

  22. India’s Application, at 14 [30].

  23. Statute of the International Court of Justice, 26 June 1945, 59 Stat. 1055, Art. 36 (Court’s Statute). Article 36(1) confers jurisdiction on the Court over all matters ‘specifically provided for in . . . treaties and conventions in force.’

  24. CR 2017/6, 18.

  25. Avena, at 36 [40].

  26. Articles on Responsibility of States for Internationally Wrongful Acts Articles on Responsibility of States for Internationally Wrongful Acts, UNDocA/56/83, Art 44 (ARSIWA). Article 44(1) states that responsibility of a State may not be invoked if the claim is not brought in accordance with any applicable rule relating to the nationality of claims. The applicable rule is Article 36 which is titled ‘Communication And Contact With Nationals Of The Sending State.’ A plain reading of the Article makes it clear that a sending State can invoke it only if the individual in question is its national.

  27. CR 2017/6, at 20 [6] (unnumbered). ‘India is coming to this Court adamant that this Commander Jadhav is an Indian national but has done nothing to prove that or establish that, at all.’ <www.icj-cij.org/docket/files/168/19436.pdf>.

  28. Avena, 41, [55].

  29. Ibid [57].

  30. India’s Application, at 4, [4].

  31. India’s Application, Annex 2, Note Verbale no. Ind(III)-2/13/2016. (emphasis added).

  32. India’s Application, Annex 4, Inter Services Public Relations Pakistan, Press Release no. PR-193/2017-ISPR (10 April 2017).

  33. India’s Application, Annex 6, Press Statement by Mr. Sartaj Aziz, Adviser to the Prime Minister on Foreign Affairs on 14 April 2017.

  34. India’s Application, at 3 [2].

  35. LaGrand, at 480, [39]. ‘It [United States] does not deny that this violation of Article 36, paragraph 1 (b), has given rise to a dispute between the two States and recognizes that the Court has jurisdiction under the Optional Protocol to hear this dispute in so far as it concerns Germany's own rights.’

  36. Avena, at 35 [40]. ‘In the present case Mexico does not, however, claim to be acting solely on that basis [diplomatic protection]. It also asserts its own claims, basing them on the injury which it contends that it has itself suffered, directly and through its nationals, as a result of the violation by the United States of the obligations incumbent upon it under Article 36, paragraph 1 (a), (b) and (c).’

  37. Avena, at 36 [40].

  38. The adequacy and effectiveness of local remedies has major implications of the reparations India would be entitled to if the Court finds Pakistan in breach of its obligations under Article 36(1).

  39. LaGrand, at 482, [42] and at 494 [77]. ‘[T]he Court concludes that Article I of 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.’ Proposition reiterated in Avena, at 36 [40].

  40. ARSIWA, Art. 44(b) states that responsibility of a State may not be invoked if the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted.

  41. LaGrand, at 487 [58].

  42. Avena, at34 [38].

  43. India’s Application, Annex 6, Press Statement of Sartaj Aziz, Advisor to the Prime Minister of Pakistan on Foreign Affairs, 14 April 2017. ‘As per law, Kulbhushan Jadhav has the following available option 1. He as the right to appeal within 40 days to an Appellate Court. 2 He may lodge a mercy petition to the COAS within 60 days of the decision by the appellate Court. He may lodge a mercy petition to the President of Pakistan within 90 days after the decision of COAS on the mercy petition.’

  44. LaGrand, at 488 [60]. ‘The Court notes that it is not disputed that the LaGrands sought to plead the Vienna Convention in United States Courts after they learned in 1992 of their rights under the Convention; it is also not disputed that by that date the procedural default rule barred the LaGrands from obtaining any remedy in respect of the violation of those rights. Counsel assigned to the LaGrands failed to raise this point earlier in a timely fashion. However, the United States may not now rely before this Court on this fact in order to preclude the admissibility of Germany's first submission, as it was the United States itself which had failed to carry out its obligation under the Convention to inform the LaGrand brothers.’

  45. India’s Application, at 26 [57].

  46. This argument assumes that, like the criminal justice system of United States, the system in Pakistan also allows enforcement of individual rights under international agreements before Military Courts.

  47. ARSIWA, Art. 45(b) provides that responsibility of a State may not be invoked if the injured State could be considered to have, by reason of its conduct, validly acquiesced in the lapse of the claim.

  48. LaGrand, at 487 [57].

  49. LaGrand, at 487 [56].

  50. LaGrand, at 487 [57].

  51. LaGrand, at 487 [57].

  52. India’s Application, Annex 1, all Note Verbales.

  53. India’s Application, Annex 1, Note Verbale no. J/411/08/2006 (3 February 2017) and Note Verbale no. J/411/08/2006 (10 April 2017).

  54. LaGrand, at 494 [77].

  55. Avena, at 49 [88].

  56. Avena, at 49 [87].

  57. Avena, at 61 [124].

  58. Avena, at 59-60 [121].

  59. Avena, at 60 [122].

  60. Avena, at 65 [138].

  61. LaGrand, at 513-514, [125]. Reiterated and elaborated upon in Avena, at 59, [120, 128] and, at 65 [138].

  62. Avena, at 65 [140].

  63. Avena, at 66 [143].

  64. Jadhav Case, opinion of 18 May 2017, Declaration of Judge Cançado Trindade on provisional measures in Section IV, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law <www.icj-cij.org/docket/files/168/19446.pdf>. Even before the LaGrand and Avena cases, Judge Trindade, as part of the panel of the Inter-American Court of Human Rights, held that ‘the individual’s right to information established in Article 36(1)(b) of the Vienna Convention on Consular Relations allows the right to the due process of law recognized in Article 14 of the International Covenant on Civil and Political Rights to have practical effects in concrete cases; Article 14 establishes minimum guarantees that can be amplified in the light of other international instruments such as the Vienna Convention on Consular Relations, which expand the scope of the protection afforded to the accused.’ Inter-American Court of Human Rights, Advisory Opinion of the Inter-American Court of Human Rights, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, (OC-16/99), 1 October 1999. Also see reference to Mexico’s Memorial in Avena at note 66, infra; Mexico cited state practice, cases and opinions of publicists in support of its human rights argument.

  65. LaGrand, at 493 [76].

  66. Memorial of Mexico, at 125-145, <www.icj-cij.org/docket/files/128/8272.pdf> (last visited on May 27, 2017).

  67. Avena, at 59 [120].

  68. Avena, at 60 [14].

  69. Avena, at 59-60 [120-123].

  70. LaGrand, at 491 [492]. ‘In view of this finding [breach of Article 36(1) by the United States], it is not necessary of the Court to deal with Germany’s further claim under Article 5 of the Convention.’ Also see, at 494 [77], where the Court interprets Article 36(1) without reference to Article 5.

  71. Avena, at 43, [61] and at 48, [83, 85-88].

  72. VCCR, Art. 5(a).

  73. Article I confers upon the Court jurisdiction over ‘disputes arising out the interpretation or application of the Convention.’ See section 3.2.2 above dealing with the Court’s jurisdiction.

  74. ICCPR, Art. 14(1).

  75. ICCPR, Art. 14(3)(b).

  76. ICCPR, Art. 14(3)(g).

  77. Article 59 ‘The decision of the Court has no binding force except between the parties and in respect of that particular case.

  78. See, supra note 64.

  79. India’s Application, at 30, [60(2)].

  80. Factory at Chorzow (Germany v Poland) Merits [1928] PCIJ, Series A, No. 17, 47. Also see, Article 35 of ARSIWA, which deals with restitution as a form of reparation for injury.

  81. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment [14 February 2002] ICJ Rep 3.

  82. Ibid, 29 [70].

  83. LaGrand, 489 [63].

  84. Avena, 49 [88].

  85. India’s Application, Annex 4, Inter Services Public Relations Pakistan, Press Release no. PR-193/2017-ISPR (10 April 2017).

  86. See Part 2, supra, for facts based on official correspondence between India and Pakistan.

  87. See note 143, infra, quoting Pakistan’s Adviser to this effect. Also see India’s Application, Annex 9, Record of the Press Briefing by Spokesperson on 20 April 2017, internal at 3 (unnumbered). ‘Then regarding consular access we have said this earlier also that we have bilateral agreement on consular access and according to Art IV, in all such cases as the one of Commander Kulbhushan [Jadhav] the request of this nature would be decided on the basis of merits.’

  88. LaGrand, at 494 [77] and Avena, at 39 [61].

  89. Avena, at 39 [63] and at 49[87-88]. With respect to the timing of providing information under Article 36(1)(b), the Court has interpreted the expression ‘without delay’ to mean ‘as soon as it is realized that the person is a foreign national, or once there are ground to think that the person is probably a foreign national.’

  90. See section 3.2.1, supra, dealing with the issue of Jadhav’s nationality.

  91. See section 2 supra dealing with the facts in this regard.

  92. India’s Application, Annex 9, Record of the Press Briefing by Spokesperson on 20 April 2017, internal at 3 (unnumbered). ‘Then regarding consular access we have said this earlier also that we have bilateral agreement on consular access and according to Art IV, in all such cases as the one of Commander Kulbhushan [Jadhav] the request of this nature would be decided on the basis of merits.’

  93. India’s Application, at 23 [49].

  94. India’s Application, at 25, [52], ‘It is not even known whether an appeal has been filed by Mr. Jadhav, and if filed has already been heard. Pakistan steadfastly refuses to share any information about the accused.’ ‘The only information available in the present case as to the state of play, is what was in the press statement by the Advisor to the Prime Minister of Pakistan. . .’ Ibid [54].

  95. ‘. . . it was non-cooperation and lack of Indian response to Pakistan’s request for legal assistance, due to which consular access has not been provided to Mr. Jhadav [sic].’ India’s Application, Annex 6, Press Statement by Mr. Sartaj Aziz, Adviser to the Prime Minister on Foreign Affairs on 14 April 2017.

  96. LaGrand, at 492 [74].

  97. ‘It is immaterial for the purposes of the present case whether the LaGrands would have sought consular assistance from Germany, whether Germany would have rendered such assistance, or whether a different verdict would have been rendered. It is sufficient that the Convention conferred these rights, and that Germany and the LaGrands were in effect prevented by the breach of the United States from exercising them, had they so chosen.’ LaGrand, at 492 [74].

  98. See the facts in Part 2, supra, and the accompanying notes detailing Pakistan’s official position with regard to the arrest and trial of KS Jadhav.

  99. India had requested consular access on 25 March 2016. According to the timeline mentioned by Pakistan, KS Jadhav was interrogated on 2 May 2016, 22 May 2016 and his confessional statement was recorded on 22 July 2016. India’s Application, Annex 6, Press Statement of the Adviser to the Prime Minister on Foreign Affairs (14 April 2017).

  100. Ibid.

  101. See VCCR, Article 5, paragraphs (a), (e), (f) and (m).

  102. See part III (B)(3).

  103. India’s Application, at 24-28, [53-57]. These arise from the possibility that Court of appeal would be presided over by officers lower in rank to the one who convicted and sentenced Jadhav and Pakistan’s official position that ‘all political parties are unanimous that the award of death penalty after dues process and overwhelming evidence to a foreign spy, who was not only carrying out subversive activities in Pakistan but actually promoting terrorism, is the correct decision.’

  104. India’s Application, at 26-28, paras. 57(a) to (d). Also see, Annex 7, news report by Dawn, 18 April 2017, ‘In reply to multiple questions about Indian spy Kulbhushan Jadhav, who has been sentenced to death for espionage and terrorism, the military spokesman said the case was moving towards the appeal process. The appellate Court, he added, would be headed by a two-star general. He, however, did not see any chance of the verdict being overturned. ‘The verdict is based on incontrovertible evidence and the army will fully defend it,’ he said, recalling the decision at the corps commanders’ conference that there would be no compromise on antistate acts.’

  105. India’s Application, at 28 [57(f)] and Annex 11, where it is reported that Lahore Bar Association has threatened ‘action, including cancellation of membership, against the lawyer(s) found pursuing appeal of Jadhav against his conviction by the Military Court’ and stated that ‘lawyers would not allow release of Jadhav who had been found guilty of playing with the lives of innocent people in Pakistan.’

  106. India’s Application, Annex 1, Note Verbale no. J/411/8/2016 (10 April 2017), Note Verbale no.ISL/103/14/2016 (14 April 2017), Note Verbale No.ISL/103/14/2016 (14 April 2017), Note Verbale no. J/411/8/2016 (19 April 2017) and Note Verbale no. ISL/103/1/2016 (26 April 2017). Annex 8 (27 April 2017), a letter from India’s External Affairs Minister to the Advisor to Prime Minister on Foreign Affairs requesting information and documents related to Jadhav’s case with a view to prepare an appeal on his behalf.

  107. Avena, at 62 [131]. In LaGrand, the Court left ‘the choice of means’ to discharge obligations under Article 36 to the United States. LaGrand, at 513-514 [125] and at 516 [128(7)].

  108. Avena, at 65 [139], ‘Crucial to such review and reconsideration is the existence of a procedure which guarantees that full weight is given to the violation of the rights set forth in the Vienna Convention, regardless of the outcome of such review.’ In LaGrand and Avena, this element was born out of the duty under Article 36(2) of VCCR and procedural default rule of the American criminal justice system which precluded defendants from raising grounds in appeal that were first not taken up at the trial stage. LaGrand, at 495-498, [79-91] and Avena, at 63, [133].

  109. Avena, at 65 [138] and at 60 [122] (An ‘integral part’ of this process is to determine whether, ‘in the causal sequence of events’, violations of Article 36(1) ‘ultimately led to conviction and severe penalties).

  110. Avena, at 62 [131].

  111. Avena, at 65 [138].

  112. Avena, at 141 [141-143].

  113. LaGrand, at 512-513 [124]. ‘The programme in question certainly cannot provide an assurance that there will never again be a failure by the United States to observe the obligation of notification under Article 36 of the Vienna Convention. But no State could give such a guarantee and Germany does not seek it. The Court considers that the commitment expressed by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), must be regarded as meeting Germany's request for a general assurance of non-repetition.’ Also see, Avena, at 69 [151]. ‘The Court believes that as far as the request of Mexico for guarantees and assurances of non-repetition is concerned, what the Court stated in this passage of the LaGrand Judgment remains applicable, and therefore meets that request.’

  114. CR 2017/6, at 19.

  115. CR 2017/6, at 20.

  116. See, infra note section 5.

  117. VCCR, Article 36(1)(b).

  118. LaGrand, at 494 [77] and Avena, at 39 [61].

  119. See section 4.2.1, supra, dealing with violation of Article 36(1) rights.

  120. CR 2017/6, at 19.

  121. VCCR, Article 5(a).

  122. See part V(B) infra for a detailed consideration of the issues arising out of the bilateral agreement of 2008.

  123. See part V(B) infra.

  124. VCCR, Article 5(i).

  125. VCCR, Article 5(m).

  126. LaGrand, at 497-498 [91].

  127. ARSIWA, Article 32.

  128. India’s Application, Annex 10, Agreement on Consular Access.

  129. Vienna Convention on the Law of Treaties, 1969, Art. 2(1)(a), May 23, 1969, 1155 UNTS 331 (VCLT), Article 2(a): ‘‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.’

  130. VCCR, Optional Protocol, Article 1.

  131. See, infra note section 5.2.2.

  132. India’s Application, at 21-23 [46-48].

  133. VCCR, Article 73(2).

  134. India’s Application, Annex 10, Agreement on Consular Access.

  135. Clause (i) pertains to maintaining a comprehensive list of the nationals of the other country under arrest and exchanging the list biannually. Clause (ii) provides for immediate notification of arrest and under clause (iii), both States have undertaken to expeditiously inform the other side of the sentence awarded to the convicted nationals of the other country.’ Under clause (iv), each government shall provide consular access within three months to nationals of one country under arrest or detention in the other country. Under clause (v), both governments have agreed to release and repatriate persons within one month of confirmation of their national status and completion of sentences. Lastly, clause (vii) provides that in special cases, which call for compassionate and humanitarian considerations, each side may exercise discretion subject to its laws and regulation to allow early release and repatriation of persons.

  136. India’s Application, 22 [47].

  137. CR 2017/6, at 21 [3] (unnumbered). ‘The 2008 Agreement . . . informs the Parties’ understanding with regards to the Vienna Convention. It amplifies or supplements their understanding and the operation of the Convention. And given the fractious nature of the relationship between these two States, it provides a helpful, if not, vital medium for that relationship to be as free from friction as possible; therefore, it is perfectly consistent with the objectives of the Vienna Convention. Indeed, it, I would suggest, is essential.’ (emphasis added)

  138. India’s Application, Annex 10, Agreement on Consular Access, 21 May 2008, clause (vi) (emphasis added).

  139. ‘Then regarding consular access we have said this earlier also that we have bilateral agreement on consular access and according to Art IV, in all such cases as the one of Commander Kulbhushan [Jadhav] the request of this nature would be decided on the basis of merits.’ India’s Application, Annex. 9, Record of the Press Briefing by Spokesperson on 20 April 2017, Annexure 9 of India’s Application, internal at 3 (unnumbered).

  140. India’s Application, Annex 2, Note Verbale no. Ind(III)-2/13/2016 (23 January 2017).

  141. India’s Application, Annex 3, Note Verbale no. Ind(III)-2/13/2016 (21 March 2017).

  142. CR 2017/6, at 24, [4] (unnumbered).

  143. India’s Application, Annex 6, Press Statement by Mr. Sartaj Aziz, Adviser to the Prime Minister on Foreign Affairs on 14 April 2017.

  144. India’s application, at 21 [45].

  145. India’s Application, at 22-23 [48].

  146. India’s Application, Annex 1, Note Verbale no. ISL/103/14/2016 (31 March 2017).

  147. Charter of the United Nations (1945), 1 U.N.T.S. XVI, Article 102. ‘1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. 2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.’

  148. Though India has not mentioned it, Article 80(1) of VCLT also contains a similar requirement: ‘Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication.’

  149. CR 2017/6, at 11 [2] (unnumbered).

  150. ‘Non-registration or late registration. . . does not have any consequence for the actual validity of the agreement, which remains no less binding between the parties.’ Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility (Qatar v. Bahrain), (Judgment) [1994] ICJ Rep 112, 122 [22].

  151. Ibid.

  152. VCCR, Article 36(1)(b).

  153. VCCR, Article 41. ‘Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if:

    (a) the possibility of such a modification is provided for by the treaty; or

    (b) the modification in question is not prohibited by the treaty; and

    (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;

    (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.’

  154. VCLT, Article 41(a) (emphasis added).

  155. VCCR, Article 73(1).

  156. In its commentary to the corresponding article of the Draft Articles on Consular Relations i.e. Article 71, the ILC noted that where parties have concluded international agreements ‘on the subject of consular relations and immunities’, VCCR ‘will apply solely to questions which are not governed by pre-existing conventions or agreements concluded between the parties.’ Draft Articles on Consular Relations, with commentaries, 1961, Yearbook of the International Law Commission, 1961, vol. II., at 92, at 128. (emphasis added).

  157. Article 73(2) reflects ILC’s hope that the convention ‘will also provide a basis for any particular conventions on consular relations and immunities which States may see fit to conclude.’ Draft Articles on Consular Relations, with commentaries, 1961, Yearbook of the International Law Commission, 1961, vol. II., at 92, at 128 (emphasis added).

  158. ‘Others, like paragraph 2 of article 73 of the Vienna Convention of 1963 on Consular Relations, which recognizes the right to supplement its provisions by bilateral agreements, merely confirm the legitimacy of bilateral agreements which do not derogate from the obligations of the general Convention.’ Draft Articles on the Law of Treaties with Commentaries, 1966, Yearbook of the International Law Commission, 1966, vol. II, Article 26, at 214 [4] (emphasis added).

  159. VCLT, Article 41(1)(b).

  160. VCLT, Article 41(b)(ii) (emphasis added). Article 41(b)(i) isn’t attracted by the nature of clause (vi) and is therefore not discussed.

  161. Avena, at 48 [85] (emphasis added).

  162. Avena, at 38 [47].

  163. United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Provisional Measures, Order [15 December 1979] ICJ Rep 19-20 [40].

  164. Ibid (emphasis added).

  165. VCCR, Article 36(2).

  166. VCCR, Article 36(1).

  167. VCCR, Art. 5(a).

  168. VCCR, Art. 5(e).

  169. VCCR, Art. 5(i).

  170. VCLT, Article 31(3)(a).

  171. CR 2017/6, at 23 [3] (unnumbered) (emphasis added).

  172. European Convention on Consular Functions, 11 December 19676, European Treaty Series (Council of Europe: Strasbourg, 1993) vol. II, No. 61, at 274. Agreement between Czechoslovakia and Austria, 14 March 1979, 1224 UNTS 21.

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  1. Cornell Law School, Ithaca, NY, USA

    Anurag Dubey

  2. National Law Institute University, Bhopal, India

    Anurag Dubey

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Dubey, A. The Jadhav Case Before the International Court of Justice. Indian Journal of International Law 57, 357–384 (2017). https://doi.org/10.1007/s40901-017-0067-2

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