On 8 May 2017, India filed an Application before the International Court of Justice initiating proceedings against Pakistan, which alleged violations of the Vienna Convention on Consular Relations (hereafter, VCCR), 1963 in the matter of the detention and trial of an Indian National, Mr. Kulbhushan Jadhav, sentenced to death in Pakistan. Pursuant to Article 41 of its Statute, the Court on May 18, 2017 granted provisional measures indicating to Pakistan that it “shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings”. Regardless of the verdict delivered by the World Court, the final hearings are expected to address several intriguing questions of law based on the claims raised by the parties.
India has contended that Article 36(1) of the VCCR was breached as Mr. Jadhav was arrested, detained, tried and sentenced to death in Pakistan, and India was neither notified nor afforded access to him. It was also asserted that Mr. Jadhav was not informed without delay of his rights with regard to consular assistance or allowed to exercise them. Pakistan denied these claims and contended that the situation of Mr. Jadhav is governed by the 2008 Agreement on Consular Access between India and Pakistan, which creates an exception to the right of Consular Access in cases of arrests made on political or security grounds, in Clause (vi). If such an interpretation were to be accepted, it would derogate from the unqualified nature of consular access envisioned in Article 36(1)(a) of the VCCR [John Quigley, et. al., The Law of Consular Access: A Documentary Guide 34 (2010)].. To this extent, a conflict of treaty provisions exists between these two Agreements. The peculiar question which the Court is faced with then is which provisions are applicable when the provisions of an earlier and later treaty concerning the same subject matter are incompatible with each other. In particular, the Court has to answer whether or not a bilateral agreement can restrict the scope of the VCCR.
Although the ‘lex prior’ rule according to which the prior treaty has preference over the latter has not found acceptance in international law, parties may include a conflict clause in a treaty, to give preference to the earlier agreement by agreeing not to conclude later contradicting treaties. In this regard, India may argue that Article 73(2) of the VCCR employs a conflict clause to claim priority over later treaties or prohibit the conclusion of future inconsistent agreements for two reasons.
First, Article 73(2) of the VCCR permits agreements between parties only to supplement and amplify its provisions. It does not provide a basis for derogating the obligations contained therein. In analogous provisions in the European Convention on Mutual Assistance in Criminal Matters [Article 26(3)], and the European Convention on Extradition [Article 28(2)], it is recognized that the effect of such a conflict clause is to limit the freedom of the Parties with regard to future agreements by forbidding derogation of prior treaty provisions.
Second, the Travaux Préparatoires of the VCCR is indicative of such an interpretation. Article 71 of the Draft Articles on Consular Relations merely specified that the convention shall not affect international conventions or other agreements, thereby conceding priority to other agreements on the subject of consular relations. Though several reports of the International Law Commission proposed adding a supplementary provision to concede priority, the express addition of sub-clause 73(2) to only allow complementary agreements between parties to supplement and amplify its provisions implies an imposed restriction to conclude agreements inconsistent with the VCCR. Therefore, Article 73(1) of the VCCR cannot be interpreted in isolation as not affecting other international agreements. It must be read together with Article 73(2) providing for such international agreements to be supplementary to the VCCR.
In the alternative, India can challenge Pakistan’s interpretation of Clause (vi) of the Bilateral Agreement. While Pakistan claims that the Agreement purports to substitute the VCCR, India may contend that the Agreement is not in conflict with the VCCR as it only “confirms or supplements or extends or amplifies” the VCCR under Article 73(2) as is evinced by its provisions. The Agreement, through clauses (i), (ii), (iii), (v), and (vii), confers additional rights not provided by the VCCR. Clause (vi) of the Agreement, which provides for the “examin(ation) of the case on its merits” when made on political or security grounds, is limited to the extent of determining the applicability of the additional rights conferred by the Bilateral Agreement. It does not extend to the examination of the grant of basic rights conferred by the VCCR. This would prevent Pakistan from denying India’s rights flowing from the VCCR.
Much ink has been spilt on the question of whether or not the Bilateral Agreement would prevail over the VCCR. India would do well to resolve this conflict by using the conflict clause in the VCCR itself. In any case, a well-founded counter-interpretation of the Bilateral Agreement to construe it harmoniously with the VCCR may help to convince the World Court.
Raghav Kohli is a second year law student at the Gujarat National Law University, Gandhinagar. He has completed a Leiden University Certificate Course on International Law, and is particularly interested in international criminal law