Public Law Studies Quarterly

Consular Protection in Light of the ICJ's Judgement in the Jadhav Case

Document Type : Article

Author

Ehsan Shahsavari

Assistant Prof., Department of Law, Faculty of Law and Political Science, University of Mazandaran, Babolsar, Iran

https://doi.org/10.22059/jplsq.2021.326091.2808
Abstract
This article paper examines the possibility of consular protection in espionage and terrorist act cases from the perspective of international law and the International Court of Justice judgment in the Jadhav case (India v. Pakistan). In this descriptive- and analytical research, by re-examining the precedent of the court in cases related to the interpretation and application of article 36 of the 1963 Vienna Convention on Consular Relations, we conclude that the Court, because of jurisdictional limitations, reaffirms its previous precedent (stare decisions) on not considering consular protection as a human right. But by remembering the responsibility of the host state to effective review and reconsideration of the convictions and sentences, the court implicitly confirms the importance of consular protection in making the right to a fair trial more effective. Moreover, by denying the existence of the "terrorism and espionage exclusion" in treaties and customary international law, the Court considered that all persons deprived of liberty regardless of their criminal charge and its gravity have the right to receive consular protection from their respective state. The approach of the International Court of Justice cas d’espece is evaluated in the sequence of progressive humanization of international law.

Keywords

espionage and terrorism exclusion
review and reconsideration
fair trial
provisional measure
VCCR
capital punishment
Subjects

  1. English

    1. A) Book
    2. Cangado Trindade, A.A. (2013). International Law for Humankind: Towards a New Jus Gentium-General Course on Public International Law., 2nd rev. ed., Leiden, The Hague, Nijhoff/The Hague Academy of International Law.

     

    1. B) Article
    2. Kadish Mark J., (1997). Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul. in Michigan Journal of International Law, 18(4), 565-613.

     

    1. C) Document
    2. Agreement on consular access between the Government of the Islamic Republic of Pakistan and the Government of the Republic of India, 2008
    3. Application instituting proceedings, Jadhav (India v. Pakistan), 8 May 2017
    4. Application instituting proceedings, Vienna Convention on Consular Relations (Paraguay v. United States of America), 3 April 1998
    5. CMW, General comment No.1, 2011
    6. CMW - CRC, Joint General comment No. 4, 2017
    7. CERD, General recommendation XI, 1993
    8. CERD, General recommendation XXX, 2005
    9. CERD, General recommendation XXXI, 2005
    10. Convention on Offences and Certain Other Acts Committed on Board Aircraft, 1963
    11. Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, 1973
    12. Convention on the Safety of United Nations and Associated Personnel, 1994
    13. Counter-Memorial of the Islamic Republic of Pakistan, Jadhav (India v. Pakistan), 13 December 2017
    14. ILC, Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries, Yearbook of the International Law Commission, 2018, vol. II, Part two
    15. ILC yearbook, 1960, Volume I
    16. ILC yearbook, 1961, Volume II
    17. ILC yearbook, 2001, Volume II
    18. International Convention against the Taking of Hostages, 1979
    19. International Covenant on civil and political rights, 1966
    20. Human Rights Committee (CCPR), General comment No. 35, 2014
    21. Human Rights Committee (CCPR), General comment No. 36, 2019
    22. Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 1963
    23. Reply of the Republic of India, Jadhav (India v. Pakistan), 17 April 2018
    24. Statute of the International Court of Justice, 1945
    25. United Nations, doc A/CONF.25/16/Add.1, Vol. I
    26. United Nations, doc A/CONF.25/16/Add.1, Vol. II
    27. VCCR, 1963
    28. VCLT, 1969

     

    1. D) Judgment
    2. ICJ Judgment, Ahmadou Sadio, Judgment of 30 November 2010
    3. ICJ Judgment, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment of 26 February 2007
    4. ICJ Judgment, Avena and Other Mexican Nationals, Judgment of 31 March 2004
    5. ICJ Judgment, Border and Transborder Armed Actions, Judgment of 20 December 1988
    6. ICJ Judgment, Certain Activities Carried Out by Nicaragua in the Border Area, Separate opinion of Judge Bhandari
    7. ICJ Judgment, Certain Iranian Assets, Judgment of 13 February 2019
    8. ICJ Judgment, Immunities and Criminal Proceedings, Judgment of 6 June 2018
    9. ICJ Judgment, Jadhav, Judgment of 17 July 2019
    10. ICJ Judgment, Jadhav, Judgment of 17 July 2019, Declaration of Judge Iwasawa
    11. ICJ Judgment, Jadhav, Judgment of 17 July 2019, Declaration of Judge Robinson
    12. ICJ Judgment, Jadhav, Judgment of 17 July 2019, Dissenting opinion of Judge Jillani
    13. ICJ Judgment, Jadhav, Judgment of 17 July 2019, Separate opinion of Judge Cançado Trindade
    14. ICJ Judgment, Jadhav, Request for the indication of provisional measures, Order of 18 May 2017
    15. ICJ Judgment, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004
    16. ICJ Judgment, Northern Cameroons, Judgment of 2 December 1963
    17. ICJ Judgment, Nottebohm, Judgment of 6 April 1955
    18. ICJ Judgment, Pulp Mills on the River Uruguay, Judgment of 20 April 2010
    19. ICJ Judgment, Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals Judgment of 19 January 2009
    20. ICJ Judgment, Right of Passage over Indian Territory, Judgment of 26 November 1957
    21. ICJ Judgment, United States Diplomatic and Consular Staff in Tehran, Judgment of 24 May 1980
    22. ICTR, Juvénal Kajelijeli V. Prosecutor (appeal chamber), Case No. ICTR-98-44A-A, 23 May 2005
    23. ICTR, Prosecutor v. Kambanda, judgment and sentence Case No.: ICTR 97-23-S, 4 September 1998
    24. PCIJ, Factory at Chorzow (Merits), Judgment of 13 September 1928

     

    References in Persian:

    - Articles

    1. Alipour, H. (2009). National Security and Rights of the Accused; A Comparative Study of Trial Procedure against Terrorist Actions. Strategic Studies Quarterly, 12(43), 5-44 (In Persian).
    2. Amini, A., & Abedi, M. (2021). Legal Aspects of UK Diplomatic Protection of Nazanin Zaghari. Public Law Studies Quarterly, 51(4), 1713-1734. doi: 10.22059/jplsq.2020.290627.2190 (In Persian).
    3. Jalali, M. (2021). Espionage in Modern International Law and Necessity of Codification of Global Provisions. Public Law Studies Quarterly, 51(1), 343-368. doi: 10.22059/jplsq.2020.216097.1351 (In Persian).
Public Law Studies Quarterly
Volume 53, Issue 4
Winter 2024
Winter 2024
Pages 2229-2250

  • Receive Date 27 June 2021
  • Revise Date 10 August 2021
  • Accept Date 03 October 2021

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