Article by Shayan Ahmed.
The following is a continuation from the previous article that had been published on the blog which can be found here which needs to be read first in order to get a better understanding of this article. Owing to the likelihood of the 2008 Agreement being of such a nature as to be considered by the ICJ, the following issue emanates:
Whether Art. 73 of the Vienna Convention on Consular Relations 1963 (VCCR) can allow for a denial of rights through a subsequent international agreement (In this instance the 2008 Agreement)
Art. 73 of the VCCR allows recourse to States parties to conclude agreements that supplement, extend or amplify the provisions of the Convention. The issue in this particular case is whether the denial of consular access falls within the purview of the aforementioned passage.
Before discussing this, it must be noted that at the stage of the Indication of Provisional Measures, the ICJ did not deliberate upon this point as it was not required to do so at such a preliminary stage. However, the same is likely to be brought into question in the oral hearings. Herein, the provision will be interpreted in light of the Vienna Convention on the Law of Treaties, 1969 (VCLT).
Interpretation of the provision through the VCLT
Art. 31 of the VCLT is the cornerstone when it comes to the interpretation of a particular provision of a treaty. However, prior to applying it to the VCCR which preceded the VCLT, Art. 4 of the VCLT needs to be circumvented. The provision prohibits the retroactive application of the VCLT and by extension it would not be applicable to the VCLT unless the provision had a customary status at the time. To that effect, its status as custom was recognized as such by the ICJ in the Kasikili/Sedudu Island Case.
Whilst applying this provision, it must be noted that there are a multiplicity of factors that are to be taken into account in reaching an interpretation. However, in the interest of keeping this article concise and to the point, I will restrict myself to the factors that have a more substantial bearing on the eventual interpretation of Art. 73 of the VCCR.
Textual Interpretation under the VCLT
Starting off with the preference given by the ICJ to textual interpretations (as also stated through the use of the words "ordinary meaning" under Art. 31(1) VCLT). If the textual interpretation of a treaty is clear (Oil Platforms Case), the Court prefers to not look to the supplementary means of interpretation. The words of Art. 73(2) of the VCCR are of such a clear nature, in my opinion. Perusing the words used, we see that the use of the words "confirming," "extending" and "amplifying" in addition to the word "supplementing"—the latter being a word Pakistan strongly emphasized upon during the proceedings—when seen, in their ordinary meaning, dictate that any dilution whatsoever of rights under the VCCR are not permitted through Art. 73.
One can also look to other conventions which adopt the same terminologies to ascertain what the words entail. For instance, Art. 28 of the CoE Extradition Convention, 1957, which states that, "…parties may conclude between themselves bilateral or multilateral agreements only in order to supplement the provisions of this convention…." The same wording is also seen in Art. 26(3) of the European Convention on Mutual Assistance in Criminal Matters. Additionally, Art. 11(7) of the Rome Convention for the Suppression of Unlawful Acts, 1988, lays out the same restrictions vis-à-vis extradition albeit without using the word "supplementing."
Subsequent Agreements as a means of interpreting Art. 73 of the VCCR
Art. 31(3)(b) of the VCLT allows recourse to Subsequent Agreements. The same was defined best in the Competence of the ILO to Regulate Agricultural Labour where it stated "if there were any ambiguity, the Court might, for the purpose of arriving at the true meaning, consider the action which has been taken under the Treaty."
Starting off with the practice of the United States, a country against whom three cases were instigated pertaining to Art. 36 of the VCCR. The Consular Convention between the USA and Belgium is cited by Geraldine Alfino wherein he makes a reference to Art. 73 to state that in cases of conflict between the provisions of the VCCR and the Convention, the VCCR would prevail. Furthermore, in a letter from Attorney Advisor Mitchell to Consul Veasy, British Embassy (July 17, 1968) the US State Department indicated that where no conflict exists, the agreement allowing greater privileges will prevail. Very recently, the interpretation accorded to Art. 73 of the VCCR by not just the United-States but also India came to light through the Agreement Pertaining to Diplomatic and Consular Relations wherein Art. 10 makes an explicit reference to Art. 73 of the VCCR and states "… in the case of a conflict, the provision more favourable to the sending State shall be applied."
In another example, Art. 8 of the 1985 Consular Convention between the UK and Egypt states "…immunities and privileges not less favourable than those… under the Vienna Convention on Consular Relations…." Interestingly, however, s.3 of the Consular Relations Act, 1968, of the United Kingdom leaves open the possibility for agreements that can reduce privileges and immunities. The Oxford Commentary to the VCLT also cites examples of three agreements which are in consonance with the aforementioned interpretation of this provision: firstly the agreement between Canada and China, (1997), the agreement between Australia and China, (1999) and lastly, the agreement between Austria and Czechoslovakia, (1979). Hence, not only in terms of textual interpretation but also through subsequent agreements we see that the meaning of Art. 73 of the VCCR remains consistent in such a way so as to warrant no dilution of consular access.
Utilization of the Travaux préparatoires
Finally, in accordance with Art. 32 of the VCLT (also of a customary status) and following the case of Territorial Dispute (Libya/Chad), the ICJ has had and can have recourse to the Travaux préparatoires but only as a means to confirm a meaning that is already clear. The VCCR was preceded by a multiplicity of consular agreements and the reason for drafting the VCCR was to bring uniformity to the scattered regime of consular law. More so, India along with five other States, proposed the provision that came to be known as Art. 73(2) of the VCCR. The reason behind this proposal was to, inter alia, bring on the same footing all the States that would become party to the Convention.
In summation, the interpretation of this provision completely supports the premise that the arguments advanced by Pakistan vis-à-vis Art. 73 of the VCCR permitting a denial of consular access may be rejected by the Court—if advanced again—as it appears that the provision only allows for favourable treatment and does not allow for an outright denial of consular access. Lastly, it will indeed be interesting to see how the Court deals with these issues especially in relation to the conduct of an alleged spy, something which is not regulated properly in International Law governing peacetime.
About the Author: Shayan is currently working as a Research Associate at the Research Society of International Law. He graduated with a First Class in his LLB (Hons.) from the University of London. He has done internships at the International Committee of the Red Cross and the Ministry of Foreign Affairs Pakistan. He has also been published as part of the Research Guide for the International Court of Justice by the Peace Palace Online Library. He can be reached at shayanahmedkhan@outlook.com