Article by Shreya Jha and Vivek Sharma,
The International Court of Justice [‘ICJ’] in the Jadhav case (India v. Pakistan) held that espionage is not an exception under the Vienna Convention on Consular Relations, 1963 [‘VCCR’]. This judgement reaffirms the protection of innocent nationals of the sending state who could potentially be targeted by the receiving state, had espionage been made an exception. This is because the receiving state is the one who gets to decide who is a spy.
However, the receiving state is at a great disadvantage as it has to comply with the established principle of giving consular access to spies which may in turn lead to leaking of sensitive information to the sending state. This information can be used against the receiving state which may result in hampering its sovereignty. Thus, it is unsettling that the receiving state is required to give consular access at the behest of transmitting sensitive information to the sending state.
According to Article 38(2) of the ICJ Statute, the Court can decide a case ex aqua et bono. Therefore, the authors believe, the ICJ could have adopted an approach to strike a harmonious balance between the interests of a state to protect its sovereignty vis-à-vis the right of the spy to consular access. This article elucidates the concerns of the receiving state and provides for a remedy to strike a harmonious balance between conflicting interests of both the parties.
II. Legal Framework
A. Consular access to spies under VCCR
According to Article 36 of the VCCR, consular rights include right of a consular officer of the sending state to visit its national who is in prison, custody or detention in the receiving state, to ‘converse and correspond with him’ and ‘arrange for his legal representation’. Further, the receiving state shall inform the sending state, without delay, with regards to arrest, detention or trial of its national.
B. Interpretation of Article 36
Article 36 of the VCCR grants a “personal benefit to the individuals”. The ICJ while determining the scope of Article 36 interpreted that the term national is broad enough to include spies and would not discriminate against certain categories of persons such as those alleged of espionage.
III. Limiting the Right to Consular Access
The VCCR does not create any exception of providing consular access to a spy. However, it is desirable that the receiving state may limit consular access in situations of threat to its sovereignty.
By limitation, it is proposed that there should be a filtering mechanism. During consular access, a neutral third party should filter out information which it believes is sensitive in nature and imperils the interest of a receiving state. A neutral party can be a state, judges of ICJ or any other party which the states believe would be neutral in its dealings.
In the following situations the receiving state may limit the right to consular access of spies:
A. Public Emergency
Public emergency is defined as a situation threatening the life of the nation.The need for limiting consular access might arise in such situations. This can be drawn from various instances where derogations from human rights treaties have been allowed in cases of public emergency.
Thus, as VCCR is also a human rights treaty guaranteeing fair trial to nationals of the sending state, such derogations an be allowed. Such derogations from various other human rights treaties have been made by states in situations of public emergencies and have been approved by the Courts in consonance with the principle laid down in the case of Aksoy v. Turkey, where the European Court of Human Rights [‘ECHR’] decided that the state is the best judge by reason of its direct and continuous contact with the pressing needs of the moment.
An example of such a derogation is the case of Lawless v. Ireland where the existence of a secret army carrying unconstitutional acts and operating within the territory of Ireland constituted existence of an emergency threatening the life of a nation. Thus, in those circumstances the ECHR held that detention without bringing terrorist suspects before a judge, could be regarded as a measure strictly confined to the exigencies of the situation. In other words, a measure required by the circumstances.
Further, the right to consular access under Article 36 of the VCCR, is a procedural right and derogations from procedural guarantees is allowed under customary international law in times of public emergency.
B. Anticipatory Self-Defense
Every nation, regardless of treaty provisions, is free to defend its territory. It alone is competent enough to decide the circumstances under which it may be necessary for it to do so. Moreover, an anticipatory action under customary international law is permitted. There is no specific form to act under anticipatory self-defense. Thus, consular access can be limited by the states in cases of threat to its sovereignty, to exercise anticipatory self-defense.
However, this limitation should meet two essentials of anticipatory self-defense i.e. necessity and proportionality.
Article 25 of ILC’s Articles on State Responsibility defines “necessity” as a situation in which the state can safeguard an essential interest from a grave or imminent peril. It is a set principle that necessity knows no law. Moreover, whenever a threat to self-preservation occurs, it becomes necessary to protect one’s existence. The risk of transmitting sensitive information is sufficient to constitute necessity.
The requirement of proportionality concerns the relationship between an action and its purpose. The granting of consular access to spies would lead to communication with the consular officer of the sending state and might lead to transfer of sensitive information thereby hampering national security of the receiving state.
An absolute denial of consular access to spies would be unjustified under the requirement of proportionality. Therefore the authors suggest only limitation and not absolute denial of consular access to spies. Thus, if consular access is limited in response to meeting a legitimate aim of achieving national security, the proportionality requirement shall be met.
The ICJ in not making espionage an exception has met the objective of VCCR. However, in the same vein by not duly addressing the legitimate concern of a receiving state the ICJ has imperilled the receiving state’s interest.
To remedy this situation and strike a harmonious balance, it has been proposed that the state can curtail the transfer of sensitive information which is beyond the scope of consular access. This form of mediation would be successful when both states appreciate each other’s concern. It also ensures that the objective of VCCR is met which is to give consular access and safeguards the receiving state from any sensitive information being leaked during the process.