JADHAV CASE: WHETHER THE RIGHT TO CONSULAR ACCESS UNDER THE VIENNA CONVENTION ON CONSULAR RELATIONS IS AVAILABLE IN TERRORISM AND ESPIONAGE CASES?

Abstract

The ongoing Jadhav case has a lot of significance not only in deciding India’s position in getting its naval officer back, but also in terms of setting up a precedent in the international sphere for the protection of human rights and deciding some still disputed concepts of International Law mainly Customary International Law and International Conventions. The Vienna Convention on Consular Relations is one of the most observed treaty which has both India and Pakistan as its signatories. Article 36 of the Vienna Convention on Consular Relations governs the communications between the consul and the nationals of his country. It requires that the receiving state should inform the detainee or arrested foreign national of his right to contact his national consul. It will be the first time that the ICJ will decide on whether offences such as espionage and terrorism exclude accused persons and States from the protections of the VCCR, which is the main question in this case. This paper thus analyses the law on consular access and the status of spies in International Law considering the Jadhav Case proceedings. The paper while taking into account the contentions of both the countries attempts to examine whether Customary Law provided for an exception to Consular Access in the cases of espionage and terrorism and whether bilateral agreements can override obligations under VCCR.