The Jadhav Case Before the International Court of Justice

The recently instituted case by India against Pakistan before the ICJ follows the trilogy of cases pertaining to violation of Article 36 of the Vienna Convention on Consular Relations (VCCR). In all three cases, the Court found that Article 36 has been breached and determined that the appropriate relief is ‘review and reconsideration’ of the consequences of such breach by domestic courts of the receiving state. Given the increasingly heightened tension between national security and human rights in the context of terrorism, the Court cannot afford to follow LaGrand and Avena. Doing so would ensure that the Indian national would be executed the way individuals in the previous three cases before the Court did. Yet, the Court’s Article 36 jurisprudence is not the only challenge in the Jadhav case. Questioning the very applicability of VCCR, Pakistan contends that VCCR does not apply to “spies and terrorists” and that KS Jadhav has confessed to being one. Pakistan further claims that, in any event, the applicable law in Jadhav is the bilateral agreement of 2008 between India and Pakistan, not Article 36 of VCCR. Within the framework of Article 38(1) of the Court’s Statute, this article explains how India could persuade the Court to go beyond ‘review and reconsideration’, annul KS Jadhav’s confession and the resultant conviction, and direct a retrial with full consular access. It also explains why Pakistan’s arguments questioning applicability of VCCR are unlikely to prevail even though they raise complex issues of treaty interpretation.