The right of consular access: Two recent examples

On 20 December 2018 the UN General Assembly passed Resolution 73/257 entitled ‘Judgment of the International Court of Justice of 31 March 2004 concerning Avena and Other Mexican Nationals: Need for immediate compliance’  at the request of Mexico. The Avena case (Mexico vs. US) regarded the failure of the United States to notify Mexican consular officers in the US of the arrest of 54 Mexican nationals on murder charges, thereby failing to comply with Art. 36 of the Vienna Convention on Consular Relations (VCCR). The International Court of Justice (ICJ) ordered the US to comply with the VCCR, and to provide proper remedies to the accused who had not been provided with consular services.  A number of those convicted have recently been executed by the US, which prompted the request for this UN Resolution. The arguments presented by the US Mission to the UN against the resolution are important to read and can be found here.

Pakistan is involved in a case brought by India to the ICJ on the same issue – the breach of Art. 36 – in regard to their failure to provide consular services to Mr Jadhav, and Indian national arrested and tried by a Pakistani military court. The case being presented by India is outlined in the press release from the court.

Curiously, Pakistan voted in favour of the UN Resolution referred to above, while simultaneously trying to argue the opposite at the ICJ. According to the aforesaid press release, Pakistan agreed to allow India to provide consular services to Mr Jadhav, on the condition that India agrees to assist in the investigation of the case against the accused.

The case is still ongoing, but the ICJ has issued an interim order that Pakistan does not execute Mr Jadhav before the full case can be heard. This was similar to the order made by the ICJ to the US not to execute Avena before the full case could be heard. Avena was executed, notwithstanding this order, with the US justifying this action on the basis that the execution was a state matter, not a federal one, and therefore the federal government had no power to stop the execution.

The ICJ interim order in the Jadhav case, and in particular the concurring but separate opinion issued by Judge Cançado Trindade, confirms that Art. 36 is not merely an issue between the state parties and the VCCR but is a matter of international human rights.

In that context, the following issues bear consideration:

1.   India and Pakistan entered into a bilateral agreement regarding consular relations on 21 May 2008 which dealt primarily with the issue of consular services. Paragraph (iv) of the agreement states that consular access must be provided within 3 months. If this is a human rights issue, can India and Pakistan decide that there can be a 3 month delay, to the extreme prejudice of the person involved? Based upon the ICJ decisions as well as those of the Inter-American Court of Human Rights cases on the matter, it is clear that the rights belong to individuals, and thus, can states now decide bilaterally that these rights can be delayed?  Note that the separate opinion by Judge Cançado Trindade was built upon his experience in the Inter-American Court of Human Rights, when he was a judge in that tribunal dealing with these same issues.

2.   If these are now considered international human rights, not merely state rights under the VCCR, does the sending state have an obligation to provide full consular services to their national immediately upon being advised of their arrest under Art. 36?  If this is a right of states under international treaty law, then they would have the right but not the obligation to provide consular services to their national. However, now that the matter is clearly within the realm of international human rights, surely the sending state is now responsible to provide full consular services, which may include arranging for proper legal counsel to the accused at the cost of the sending state, regular pastoral visits by consular officers, and providing basic necessities of life to the national while incarcerated.

3.   Is Pakistan’s demand that India assist in the investigation of the case against Jadhav as a precondition to granting consular services to India pursuant to Art. 36 acceptable or is the obligation under Art. 36 unconditional?