Asian Journal of International Law,  (), pp.

–
doi:./S
© The Author(s), . Published by Cambridge University Press
First published online  November 

The ICJ’s Jadhav Judgment and Its

Implications for Pakistan and India under
International Law

Abhishek TRIVEDI*
Faculty of Legal Studies, South Asian University, New Delhi, India
abhishektrivedi@gmail.com

Abstract
The International Court of Justice [ICJ] delivered its Judgment on Jadhav (India
v. Pakistan) in , finding Pakistan in breach of its obligations under Article  of
the Vienna Convention on Consular Relations, . Thus, Pakistan is under a continu-
ing obligation to provide, through the means of its own choosing, effective review and
reconsideration [ERR] of Jadhav’s conviction and sentence. This paper comments on
the ICJ’s Jadhav Judgment and its implications for Pakistan and India. It also evaluates
the legal option if India is not satisfied with Pakistan’s implementation of the ERR pro-
cess effectively. In this situation, India can approach the ICJ again. This paper finds that
the possibilities of India’s request to be admissible before the ICJ under Article  of its
Statute are relatively higher than the possibilities of its successful adjudication on
the merits.

In the Jadhav case, India instituted proceedings before the International Court of
Justice [ICJ or the Court] against Pakistan to realize its right as a state and the
right of its national Kulbhushan Jadhav under Article  of the Vienna Convention
on Consular Relations [VCCR], . India claimed that Pakistan arrested, con-
victed, and sentenced Jadhav in violation of Article () of the VCCR. Jadhav
was arrested on  March , and convicted and sentenced on charges of espionage
and terrorism by a military court in Pakistan in . According to Pakistan, persons
charged for espionage offences are not entitled to enjoy the rights provided under
Article .

* PhD research scholar. This paper constitutes part of my presentation delivered at the international
conference “South Asia in the Era of International Courts and Tribunals”, held on –
February  at the Faculty of Legal Studies, South Asian University in New Delhi, India.
. Memorial of the Republic of India, Jadhav (India v. Pakistan), [] I.C.J. Pleadings at –
[Memorial of India].
. Ibid., at –.
. Counter-Memorial of the Islamic Republic of Pakistan, Jadhav (India v. Pakistan), [] I.C.J.
Pleadings at –, para. .
. Ibid., at –.

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                               

The VCCR lays down the rules for consular relations between states. The funda-
mental objective and purpose of the VCCR and Article  is to contribute to the
development of friendly relations and to facilitate the exercise of consular functions
among nations. Article ()(b) of the VCCR talks about the right of arrested per-
son(s) to have communication with a consular officer of their home state (sending
state). It also imposes an obligation on the receiving state to inform without delay
the consular post of the sending state of which the detained person is a national.
Also, consular officers of the sending state have the right to consular access and to
visit their state’s nationals, to converse and correspond with them, and to arrange
for their legal representation.
Accordingly, the Court, while dismissing Pakistan’s arguments on the merits,
observed that Pakistan acted in breach of its obligations under Article () of the
VCCR. Consequently, Pakistan was obliged to provide “effective review and reconsid-
eration” [ERR] of the conviction and sentence of Jadhav. Now, it is up to Pakistan
how it will implement the ERR process through the means of its own choosing.
Meanwhile, Pakistan has given an indication of complying with the ICJ directives
and firmly believes that its legal system is fully equipped to implement the ERR pro-
cess effectively. However, India may object to the manner and ways in which
Pakistan complies with the Judgment, an indication of which India has already
expressed. In short, India may raise objections regarding the interpretation of the
terms “consular access/visit” or right to have a “conversation” and a “fair trial”.
Before evaluating the legal standing of India’s objections, this paper first comments
on the ICJ’s Jadhav Judgment and its implications for Pakistan. It then proceeds to
highlight Pakistan’s initial willingness to comply with the ICJ ruling and India’s initial
objections thereto, before coming to consider other options available for India to
exercise under international law.

. Vienna Convention on Consular Relations,  April ,  U.N.T.S. , (entered into force 
March ), preamble, art. , and chapeau of art.  [VCCR]; see also United States Diplomatic
and Consular Staff in Tehran (United States of America v. Iran), Order of  December ,
[] I.C.J. Rep.  at –, para. ; John QUIGLEY, William J. ACEVES, and Adele
SHANK, The Law of Consular Access: A Documentary Guide (New York: Routledge, ) at
–; Luke T. LEE and John QUIGLEY, Consular Law and Practice, rd ed. (New York: Oxford
University Press, ).
. VCCR, supra note , art. ()(b).
. Ibid., arts. ()(a), (c).
. Jadhav Case (India v. Pakistan), Judgment,  July , [] I.C.J. G.L. No.  at paras. –,
, , –, , , , , , , –, ,  [Jadhav case].
. Ibid., at para. .
. Ibid., at para. .
. “Pakistan Provides Consular Access to India for Commander Jadhav, Islamabad”, Ministry of
Foreign Affairs, Government of Pakistan ( September ), online: MOFA <http://mofa.gov.pk/
pakistan-provides-consular-access-to-india-for-commander-jadhav/> [MOFA statement].
. “Official Spokesperson’s Response to Queries from the Media on Consular Access to Shri Jadhav”,
Ministry of External Affairs, Government of India ( September ), online: MEA <https://mea.
gov.in/response-to-queries.htm?dtl//official+spokespersons+response+to+queries+from+the+
media+on+consular+access+to+shri+jadhav> [MEA statement].

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  ’      

.       


The ICJ delivered its Jadhav Judgment on  July , finding Pakistan in breach of
its obligations under Article ()(a)–(c) of the VCCR. Thus, Pakistan is under a
continuing obligation to implement the ERR process effectively, preferably through
judicial means and in the light of the principle of a fair trial. Accordingly,
Pakistan is obliged to provide consular access and visits to India and to arrange
legal representation for Jadhav. The Court explicitly mentioned that the principle
of a fair trial is of cardinal importance and is essential in any ERR process. The
Court, however, did not touch upon the legal elements relevant to this principle.
Nevertheless, Pakistan is required, in accordance with its domestic laws, to adhere
to the principle of a fair trial.
This appears to be a new development in ICJ jurisprudence regarding the scope
and content of ERR. In the Avena case, the Court had an opportunity to comment
on the issue of fairness as a constituent element of due process rights raised by
Mexico in the light of the breach by the US of its obligations under Article ()
of the VCCR. The Court, in this regard, noted that the rights guaranteed under
Article () are treaty rights, irrespective of the due process rights under the consti-
tutional law of the receiving state. The Court, in essence, is thought to have indi-
cated that a violation of Article () may not necessarily be a case of harm to a
particular right essential to a fair trial, but it is certainly a case of involving the
infringement of individual rights, along with those of a sending state. In this way,
the Court, while in the Avena Judgment seeking to observe that a fair trial is possibly
a matter of substantive requirements of due process rights, in the Jadhav Judgment it
explicitly mentioned that the principle of a fair trial is significant for any ERR to be
effective.
The Court further directed that the process of ERR ought to be implemented in a
manner which ensured that “full weight” would be given to the effects of the vio-
lation of Jadhav’s rights outlined in Article , and that the possible prejudice and
implications for his right to a fair trial, and the evidence, and the right of defence
caused by such a violation, would be “fully examined” and would receive “close

. Jadhav case, supra note  at paras. , .

. Ibid., at paras. –; see also LaGrand (Germany v. United States of America), Judgment,  June
, [] I.C.J. Rep.  at  at paras. –; Avena and Other Mexican Nationals (Mexico
v. United States of America), Judgment,  March , [] I.C.J. Rep.  at –, para. 
[Avena case].
. Jadhav case, supra note  at para. .
. Ibid., at para. ().
. Ibid., at para. .
. Avena case, supra note  at –, para. .
. Ibid., at , para. .
. Ibid.
. Jadhav case, supra note  at para. .

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                               

scrutiny”. Notably, the said obligation is an obligation of result, which must be

achieved within a reasonable time.

.        

     
Pursuant to the ICJ ruling, Pakistan officially demonstrated that it had “provided con-
sular access on  September,  to India for Commander Kulbhushan Jadhav”.
Pakistan has also maintained that “un-impeded, uninterrupted” consular access has
been provided “in line with [the VCCR], ICJ verdict and the laws of Pakistan”.
The access provided was recorded in the presence of Pakistani government officials
and lasted for two hours, with no restriction on the language of communication.
As of now, no objection from the side of India regarding the consular access pro-
vided has been raised before Pakistan. India, however, maintained that “Shri [Mr]
Jadhav appeared to be under extreme pressure to parrot a false narrative to bolster
Pakistan’s untenable claims”. In view of this, and in the absence of a comprehensive
report which is expected to be submitted by the chargé d’affaires, High Commission
of India in Islamabad, India has yet to decide a further course of action and to deter-
mine the extent of compliance by Pakistan with the ICJ directives.
Further, it is important to underline that, just three days before the consular access
was provided, Indian chargé d’affaires Gaurav Ahluwalia asserted that Pakistan
would ensure the right atmosphere so that the meeting is “free, fair, meaningful
and effective in keeping with the letter and spirit of the ICJ orders”. This statement
should be viewed in the light of India’s previous statements and Pakistan’s first-time
offer of consular access. Pakistan, for the first time, offered consular access to India
at the end of July , and the date of  August was proposed for such access. India,
however, rejected this offer, asking Pakistan to provide unimpeded consular access in
an environment free from the fear of intimidation and reprisal. Thus, India seems to
be reiterating its intention that it should be provided with “full” consular access to

. Ibid., at para. 

. Ibid., at para. ; see also Request for Interpretation of the Judgment of  March  in the Case
concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico
v. United States of America), Judgment,  January , [] I.C.J. Rep.  at , , paras.
,  [Request for Interpretation ].
. MOFA statement, supra note .
. Ibid.
. Ibid.
. MEA statement, supra note .
. “India Accepts Pakistan’s Offer of Consular Access to Kulbhushan Jadhav Today” The Wire
( September ), online: The Wire <https://thewire.in/diplomacy/pakistan-announces-consular-
access-to-kulbhushan-jadhav-on-september->.
. “Jadhav: India Rejects Pakistan’s Friday Offer, Asks For ‘Unimpeded’ Consular Access” The Wire
( August ), online: The Wire <https://thewire.in/south-asia/kulbhushan-jadhav-india-rejects-
consular-access>.
. Ibid.

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  ’      

Jadhav. The reference to “unimpeded consular access” in an “environment free

from the fear of intimidation and reprisal” indicates that India had the intention
of having a private or confidential conversation with Jadhav. In the case of India rais-
ing this point of consular access, it is an issue of interpretation as to what constitutes
consular access/visit, whether a private or confidential conversation is implicit to the
meaning of full consular access, or a right to have a “conversation” within the mean-
ing of Article ()(c).
India’s intention to seek a confidential conversation with Jadhav is obvious, i.e. to
find out the level of stress or torture which Jadhav might be subjected to in prison. If
Jadhav confirms this verbally, this might serve to help India bolster its narrative and
also to help Jadhav during the review process. If this particular aspect of the right to
consular access/visit and its interpretation reaches the ICJ for decision, India would
probably argue that Jadhav may fear reprisal if the Pakistani officers know of this
communication, and if the privacy of communication is not assured, it may vitiate
the purpose of having such communication.
India can also raise objections regarding the manner and ways in which Pakistan will give
effect to the ICJ Judgment. To be more specific, India may with higher probability raise con-
cerns about the right of Jadhav to a fair trial by an independent and impartial court.
If such a situation arises, what would be the implications, and how the Court
would deal with these situations, are questions of pertinent importance for both par-
ties to the present case and for the ICJ. The next part of the paper analyzes the legal
option India would have under international law, and evaluates the legal standing of
India’s arguments regarding the interpretation of the expressions “consular access/
visit” and/or right to have a “conversation” and a “fair trial”.

.           

  ’   
    
Since Pakistan has indicated that it would comply with the Judgment, there is a pos-
sibility that the modalities and procedures which Pakistan adopts to give effect to the

. “India Demands Granting of ‘Full’ Consular Access to Jadhav” The Wire ( July ), online: The
Wire <https://thewire.in/diplomacy/kulbhushan-jadhav-india-demands-full-consular-access>.
. Sidhant SIBAL, “India Demands Full Consular Access to Kulbhushan Jadhav” DNA India ( August
), online: DNA India <https://www.dnaindia.com/india/report-india-demands-full-consular-
access-to-kulbhushan-jadhav->.
. India has already highlighted this point in its written pleadings; see Memorial of India, supra note 
at –.
. Jadhav was convicted solely on the basis of his “confession” before the magistrate. Jadhav, during the
review process, if conducted through civil courts, can submit that his confession was taken under
torture.
. Memorial of India, supra note  at – (India believes that the Pakistani military courts system is
not fair, independent, and transparent); see also Niaz A. SHAH, “The Right to a Fair Trial and the
Military Justice System in Pakistan” ()  Journal of International Humanitarian Legal Studies
 at ,  (which finds that the Pakistani military justice system blatantly violates fair trial stan-
dards: it is part of the Executive and is neither independent nor impartial).

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                               

Judgment may give rise to different interpretations for India and Pakistan. If such a
situation arises, India may approach the ICJ again for clarification.

A. Recourse to the ICJ

India can approach the ICJ under Article  of its Statute, which provides that “[i]n
the event of dispute as to the meaning or scope of the judgment, the Court shall con-
strue it upon the request of any party”. India can request the Court to interpret the
expression “consular access/visit”, and whether it includes within its meaning or
scope private or confidential conversation between its consular officers and Jadhav.
Second, India can also urge the Court to construe the meaning of the term “fair
trial”. The Court is supposed to exercise jurisdiction on both issues as they are part
of its original Judgment of  July .
However, the Court has to be satisfied that there exists any “dispute”—a difference
of opinion—between India and Pakistan regarding the meaning or scope of the terms
“consular access/visit” or “fair trial”. Meanwhile, if Pakistan withdraws from the
Optional Protocol to the VCCR, it would have no bearing on the Court’s jurisdiction
under Article .
The most challenging part for India in establishing a “dispute” with Pakistan
within the meaning of Article  will be to indicate “precise point[s] in [the] dispute
as to the meaning or scope of the judgment” of  July . The existence
of a dispute under Article  is not subject to the satisfaction of the same criteria
as that of a dispute referred to under Article () of the ICJ Statute. Non-specificity
as to what the claimed dispute precisely is may render India’s application inadmissible
under Article . Accordingly, the next part of this paper examines whether India’s
potential arguments carry any specificity about the interpretation of the expressions
“consular access/visit” and/or right to have “conversation” and “fair trial”.

. Statute of the International Court of Justice,  June , U.S.T.S.  (entered into force 
October ), art. .
. Request for Interpretation of the Judgment of  March  in the Case concerning Avena and
Other Mexican Nationals (Mexico v. United States of America), Order of  July , []
I.C.J. Rep.  at , paras. – [Provisional Measures Order ]; Request for
Interpretation of the Judgment of  November  in the Asylum Case (Colombia v. Peru),
Judgment,  November , [] I.C.J. Rep.  at .
. Application for Revision and Interpretation of the Judgment of  February  in the Case
Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab
Jamahiriya), Judgment,  December , [] I.C.J. Rep.  at –, paras. –;
Request for Interpretation of the Judgment of  June  in the Case Concerning the Land and
Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections (Nigeria v. Cameroon), Judgment,  March , [] I.C.J. Rep.  at –,
para. .
. Provisional Measures Order , supra note  at , para. .
. International Court of Justice Rules of Court (),  April ,  I.L.M. ()  (entered
into force  July ), art. (), online: ICJ <https://www.icj-cij.org/en/rules>.
. Provisional Measures Order , supra note  at , para. ; Request for Interpretation ,
supra note  at , para. .

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  ’      

. Interpretation of the terms “consular access/visit” and right to have a

“conversation”
As for the right of India to have consular access/visit to, or the right to have a conver-
sation with, Jadhav, India may argue in favour of a particular interpretation of the
term “consular access/visit”, i.e. that such rights include the right to have a private
or confidential conversation with Jadhav. Pakistan would likely deny this for many
reasons, such as the safety of Jadhav or a breach of security or any other domestic
laws/regulations. This indicates that there may exist a dispute between the two par-
ties regarding the interpretation of a particular term, “consular access/visit”, trigger-
ing the jurisdiction of the Court in this matter.
However, the moot question before the ICJ would be to decide whether a private or
confidential conversation is part of the right to consular access/visit under the scope of
Article () of the VCCR.
The VCCR is silent about the modes and methods of providing consular access,
whether the conversation should be purely confidential or in the presence of the offi-
cials of the receiving state. The VCCR leaves it to the discretion of each state to decide
the methods of providing consular access. However, these methods must enable
“full effect to be given to the purposes for which the rights accorded under [Article ]
are intended”. In this regard, the Pakistan Prison Rules of  are relevant to
directing the prison management. However, these rules do not mention how prison
authorities should behave during the visits of consular officers.
During the visit of Jadhav’s mother and wife in December , the agreed modal-
ities provided that there would be an Indian diplomat, one officer from the Pakistan
foreign ministry, and a female Pakistani security official present during the meeting.
The standard practice regarding consular access cases in Pakistan is that they are
observed and overheard by Pakistani officials. For other states, there is diversity
in how they implement Article . Many states in their practice consider any monitor-
ing of communication and conversation between consular officers and their national a
violation of their right to consular access. There are also a significant number of
bilateral conventions that have provisions ensuring some degree of privacy during

. Earlier in , Pakistan provided a visit to Jadhav’s mother and wife in the presence of governmen-
tal officials and with a tight security check-up. See infra note .
. Art. () of the VCCR says that the right to consular access “shall be exercised in conformity with
the laws and regulations of the receiving State”.
. Ibid., a proviso to art. ().
. “Pakistan Prison Rules, : Rules for the Superintendence and Management of Prisons in
Pakistan”, Justice Project Pakistan (n.d.), online: Justice Project Pakistan <https://data.jpp.org.pk/
en/document/ijejiwvne?page=>.
. “Statement by the Official Spokesperson on Shri Kulbhushan Jadhav’s Meeting with His Family”,
Ministry of External Affairs, Government of India ( December ), online: MEA <https://
mea.gov.in/press-releases.htm?dtl//statement+by+the+official+spokesperson+on+shri+kulb-
hushan+jadhavs+meeting+with+his+family>.
. The Pakistan Prisons Act of , ss. , ; Devirupa MITRA, “India Likely Won’t Be Allowed to
Speak to Kulbhushan Jadhav in Private. Here’s Why” The Wire ( July ), online: The Wire
<https://thewire.in/diplomacy/kulbhushan-jadhav-consular-access-icj-india-pakistan>.
. Quigley et al., supra note  at –.

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                               

consular visits. Nevertheless, it would be difficult to conclude whether such practice

and conventions are sufficient to establish state practice and opinio juris in terms
of crystalizing customary rules of international law, particularly in parallel to
Article () of the VCCR, which leaves it to the receiving state to decide how it
should provide consular access to the sending state.
In this judicial process of construing the meaning of the term “consular access/
visit” under Articles ()(a) and (c), the ICJ may resort to supplementary means
of interpretation, i.e. the travaux préparatoires of Article  of the VCCR. For this
purpose, the Court may have recourse to the records of the Vienna Conference
() and International Law Commission [ILC] Reports. The travaux
préparatoires of Article  do provide some, albeit insufficient, insight regarding
the interpretation of a term “consular access/visit”, and to its scope within the mean-
ing of Article (), as to whether the term includes private or confidential conversa-
tion. The ILC, in its report in , discussed the new draft Article A proposed
by Sir Gerald Fitzmaurice. The relevant part of Article A(b) states that:

The local authorities shall inform the consul of the sending State without delay when any
national of that State is detained in custody within his district; and the consul shall be
permitted without delay to visit, converse privately with, and arrange legal representation
for any national so detained.

. For instance, see Consular Convention Between the United States and the United Kingdom,  June
,  U.S.T.  (entered into force  September ), art. (); Consular Convention Between
Sweden and the United Kingdom,  March ,  U.N.T.S.  (entered into force on 
September ), art. (); Philippines-Spain Consular Convention,  May ; the United
Kingdom-Italy Consular Convention,  June . According to the State Department, the US has
bilateral agreements with thirty-five countries which allow their consular officers to converse with
their nationals in private. These countries are Antigua and Barbuda, Bahamas, Barbados, Belize,
Brunei, Costa Rica, Cyprus, Dominica, Fiji, Gambia, Ghana, Grenada, Guyana, Ireland, Jamaica,
Japan, Kiribati, Kuwait, Malaysia, Malta, Mauritius, Nigeria, Saint Kitts and Nevis, Saint Lucia,
Saint Vincent and the Grenadines, Seychelles, Sierra Leone, Singapore, Tanzania, Tonga, Trinidad
and Tobago, Tuvalu, the UK, Zambia, and Zimbabwe. In cases of nationals of other counties, the
manual issued by the State Department to law enforcement officials at federal, state, and local levels
provides that privacy is encouraged but not required. See the United States Department of State,
Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement
and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular
Officials to Assist Them, th ed. (Washington, DC: U.S. Department of State, ) at –, .
. Summary Records of Plenary Meetings and of the Meetings of the First and Second Committees,
United Nations Conference on Consular Relations (Vol. I), UN Doc. A/CONF./ () [UN
Conference on Consular Relations (Vol. I)]; Annexes; Vienna Convention on Consular Relations;
Final Act; Optional Protocols; Resolutions, United Nations Conference on Consular Relations
(Vol. II), UN Doc. A/CON.//Add. () [UN Conference on Consular Relations (Vol. II)].
. Summary Records of the Twelfth Session, Yearbook of the International Law Commission 
(Vol. I), UN Doc. A/CN./SER.A/ () [ILC Yearbook  (Vol. I)]; Documents of the
Twelfth Session Including the Report of the Commission to the General Assembly, Yearbook of
the International Law Commission  (Vol. II), UN Doc. A/CN./SER.A//Add.  ();
Summary Records of the Thirteenth Session, Yearbook of the International Law Commission
 (Vol. I), UN Doc. A/CN./SER.A/ () [ILC Yearbook  (Vol I)]; Documents of
the Thirteenth Session Including the Report of the Commission to the General Assembly,
Yearbook of the International Law Commission  (Vol. II), UN Doc. A/CN./SER.A//
Add.  () [ILC Yearbook  (Vol. II)].
. ILC Yearbook  (Vol. I), supra note  at –.
. Ibid., at .
. Ibid. (emphasis added).

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  ’      

One of the members of the ILC, Mr François, asked whether the provision in para-
graph (b) meant that “no warder or other prison official should be present”. Sir
Gerald Fitzmaurice replied that

[t]he words “converse privately” in paragraph (b) were not meant to suggest that a war-
der or other official should not be present. According to the usual practice in most coun-
tries a warder was in the room, but the conversation could nevertheless be private.

Another member, Mr Edmonds, emphasized that private conversation between

consular officers and prisoners is essential for providing prisoners with protection,
particularly after their sentence or pending appeal. According to him, only a private
conversation could fulfil the purpose intended by the new draft Article A.
Similarly, and interestingly, Article A was strongly supported by a few other mem-
bers of the Commission.
Further, the ILC in its  report mentions just that “visits to persons in custody
or imprisoned are permissible in conformity with the provisions of the code of crim-
inal procedure and prison regulations” of the receiving state. This is largely a rep-
lication of Article () of the VCCR. Article () is, however, slightly different
from the language of the ILC Draft Articles in the sense that the latter requires that
the laws and regulations of the receiving state “must not nullify [the] rights” of
Article (), while the former requires that such laws and regulations “must enable
full effect to be given” to the rights accorded under Article (). In short, the lan-
guage of Article () of the VCCR provides stronger protection in favour of the
rights of individuals accorded under Article (), while balancing and giving a suf-
ficient degree of deference to the municipal laws and regulations of receiving states to

. Ibid., at , para. .

. Ibid., at , para.  (emphasis added).
. Ibid., at , . In this regard, the observation made by Mr Pal, another member of the ILC, is also
equally important. He said that the provision enabling consuls to converse privately with detained
nationals in such a situation of need can enable them to talk and communicate freely with their con-
sul without thereby jeopardizing their defence. He was also in disagreement with Mr Ago’s view that
such provision should be made subject to the principle of reciprocity. Mr Pal viewed that such should
be inserted without any bargaining qualification.
. Ibid., at .
. Ibid., at –. Mr Amado observed that the proposed art. A was a most welcome advancement in
the legislation on consular relations. Mr Bartos viewed that the provisions of art. A specified the
duties of states in the matter of the right of communication, and that a great majority of states recog-
nized the right of free communication between a consul and his nationals. Mr Scelle, Mr Sandstrom,
and Mr Matine-Daftary also supported, in general, the relevance of art. A.
. ILC Yearbook  (Vol. II), supra note  at , art. , commentary, para. .
. Ibid., at –, art. () and para. ; see Proposal by the Union of Soviet Socialist Republics:
amendment to Article  of the draft convention, A/CONF./L.,  April . This proposal
used the phrase “to nullify” which meant, according to the UK, to “render [the rights] completely
inoperative”. But rights could be seriously impaired without becoming completely inoperative.
Therefore, the UK preferred the positive approach to the second paragraph of art.  as approved
by the Second Committee. Finally, the proposal of the Soviet Union was rejected and the UK’s pro-
posal was adopted; see UN Conference on Consular Relations (Vol. I), supra note  at .
. VCCR, supra note , art. (); this phrase was later added with the UK proposal to amend art. 
(). See United Kingdom: Amendments to Article , United Nations Conference on Consular
Relations (Vol. II), UN Doc. A/CONF./C./L. (), in UN Conference on Consular
Relations (Vol. II), supra note  at .

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                               

decide the manner of providing consular access. Surprisingly, neither the ILC’s report
 (both volumes I and II), nor the records of Vienna Conference in  (both
volumes I and II), mentions private conversations as part of consular access/visit.
Based on the above analysis, it would be difficult to conclude with any certainty
that the VCCR would allow the ICJ, if the matter goes on the merits, to interpret
Article  so widely as to include private or confidential conversation within the
meaning of the term “consular access/visit”, or the right of consular officers to
have (private) conversations.

. Interpretation of the term “fair trial”

As for Jadhav’s right to a fair trial, India may argue that, if Pakistan does not transfer
Jadhav’s case to the civil courts for a fresh trial, then the trial of Jadhav by military
courts cannot ensure his right to a fair trial and it would consequently impede giv-
ing “full weight” to the effects of the violation of Jadhav’s rights outlined in Article 
of the VCCR and pronounced by the ICJ in its  July  Judgment. India will
probably argue that, if the process of ERR is conducted by the military courts of
Pakistan, it cannot be “effective” in the light of Jadhav’s right to a fair trial and
will “prejudice” his various other rights enshrined in Article . Pakistan, in turn,
may argue that Article () of the VCCR leaves it to the receiving state’s domestic
laws/regulations as to how a fair trial is conducted and what are its substantive
legal elements.
The Court will most probably not comment on the substantive requirements of a
fair trial, nor will it delve into how it should be conducted, as doing so may amount
to acting as an appellate court, intervening in the domestic/internal affairs of
Pakistan. Also, the Court will probably not examine (which it should) the inter-
national human rights jurisprudence on a fair trial, even though Pakistan is a party
to the International Covenant on Civil and Political Rights [ICCPR]. The reason
for the Court doing so is that it assumed its jurisdiction for its  July 
Judgment based on Article  of the Optional Protocol to the VCCR, not the
ICCPR. However, the Court is expected, if the matter goes on the merits, to

. ILC Yearbook  (Vol. I), supra note  at , para. ; ILC Yearbook  (Vol. II), supra
note  at ; UN Conference on Consular Relations (Vol. I), supra note  at –, –,
–; UN Conference on Consular Relations (Vol. II), supra note  at , –, , , .
. This is one of the remedies which India asked the Court to declare; see Memorial of India, supra note
 at .
. Ibid., at –.
. Jadhav (India v. Pakistan), Order of  May , [] I.C.J. Rep.  at –, para. .
. Jadhav (India v. Pakistan), Judgement, Separate Opinion of Judge Cançado Trindade,  July ,
[] I.C.J. G.L. No.  at paras. –.
. International Covenant on Civil and Political Rights,  December ,  U.N.T.S. ,  I.L.M.
 (entered into force  March ) [ICCPR]. Pakistan acceded to the ICCPR on  June ,
see “Status of Treaties—International Covenant on Civil and Political Rights”, United Nations
Treaty Collection (last accessed  June ), online: UNTC <https://treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=IV-&chapter=&clang=_en>.
. Jadhav case, supra note  at paras. , , .

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  ’      

bring in the ICCPR through Article ()(c) of the VCLT in its interpretation of the
term “fair trial” to give it a proper “meaning” or to explore its “scope” in the light of
the fact that Pakistan is required to give “full weight” to the effect of the violation of
Jadhav’s rights under Article  and to “fully examine” the implications for the prin-
ciple of a fair trial of the violations of such rights.

.  

The ICJ’s role in the progressive development of international law on consular func-
tions is significant for ensuring the protection of a state’s rights and the rights of indi-
viduals under the VCCR. The Jadhav Judgment is a reiteration of the fact that
disputes can be settled judicially and peacefully. This paper finds that the possibilities
of India’s request to be admissible before the ICJ under Article  of its Statute are
relatively higher than the possibilities of its successful adjudication on the merits.
To be further specific, there are higher chances that the request might be admitted
under Article  for the interpretation of the term “consular access/visit” or the
right to have a “conversation”, with the least chances for the construction of the
term “fair trial”.
However, keeping in mind the current relations between these two countries,
Pakistan should try to locate outside the purview of the ERR process other options
that should be legally permissible and politically desirable. Pakistan and India should
try to manage the Jadhav matter through diplomatic channels or a bilateral under-
standing in terms of the Simla Agreement. In either case, it would be beneficial
for both the declared nuclear states as it would help in facilitating bilateral relations
and easing tensions between the two nations. Thus, it would eventually contribute to
mitigating or prohibiting any potential conflict or “use of force” between the two
nations—a jus cogens nature of its prohibition in international relations.

. Vienna Convention on the Law of Treaties,  May ,  U.N.T.S. ,  I.L.M.  (entered
into force  January ).
. “Agreement on Bilateral Relations Between the Government of India and the Government of the
Islamic Republic of Pakistan (Simla Agreement)” United Nations Peacemaker ( July ), online:
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. Ravindra PRATAP, “Provisional Measures and the Jadhav Case” ()  Groningen Journal of
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