ICJ rejects Pakistan’s claim that Vienna Convention does not apply to espionage

The Hague: Kulbhushan Jadhav case proceedings begin at ICJ at The Hague, Netherlands on July 17, 2019.

The Hague, ┬áThe ICJ threw out Pakistan’s objection to India’s demand for consular access to Kulbhushan Jadhav on the claim that he was a spy and the Vienna Convention could not be applied in the case.

The International Court of Justice (ICJ) said there is “no reference in the Vienna Convention to cases of espionage. Article 36 does not exclude from its scope persons suspected of espionage.”

In its pleadings, Pakistan based this objection on three main arguments. First, it refers to India’s refusal to “provide evidence” of Jadhav’s Indian nationality by means of his “actual passport in his real name”, even though it has a duty to do so. Secondly, Pakistan mentions India’s failure to engage with its request for assistance in relation to the criminal investigations into Jadhav’s activities.

Thirdly, Pakistan alleges that India authorized Jadhav to cross the Indian border with a “false cover name authentic passport” in order to conduct espionage and terrorist activities. In relation to these arguments, Pakistan invokes various counter-terrorism obligations set out in Security Council resolution 1373 (2001).

India referred to what it viewed as contradictions between Pakistan’s arguments before the Court regarding the question of Jadhav’s nationality, on the one hand, and his own behaviour after his arrest, on the other. It relied on the allusion made in Pakistan’s diplomatic exchanges to Jadhav’s membership of India’s “Research and Analysis Wing” and, more specifically, to his Indian nationality.

India also cited the absence of a mutual legal assistance treaty, due to which it concluded that it had no obligation to co-operate with Pakistan’s criminal investigations, and explained that, in any event, the right of consular assistance under Article 36 of the Vienna Convention is not dependent on a party’s compliance with any obligation of this kind.

India also considered Pakistan’s allegations concerning Jadhav’s unlawful activities to be unfounded, the court observed.

The Court noted that by raising the argument that India has not provided the Court with Jadhav’s “actual passport in his real name”, Pakistan appears to suggest that India has failed to prove Jadhav’s nationality.

“In this respect, the Court observes that the evidence before it shows that both Parties have considered Jadhav to be an Indian national. Indeed, Pakistan has so described Jadhav on various occasions, including in its “Letter of Assistance for Criminal Investigation against Indian National Kulbhushan Sudhair Jadhev”. Consequently, the Court is satisfied that the evidence before it leaves no room for doubt that Mr. Jadhav is of Indian nationality,” it observed.

On the issue of Pakistan claiming the Vienna Convention is not applicable in the case of spies, the Court said: “Neither Article 36 nor any other provision of the Vienna Convention contains a reference to cases of espionage. Nor does Article 36 exclude from its scope, when read in its context and in light of the object and purpose of the Convention, certain categories of persons, such as those suspected of espionage.”