Consular Relations: VCCR, LaGrand, Avena and Jadhav Case

Consuls are older than permanent embassies and deal with the practical needs of a state's nationals and trade abroad. Their status is governed by the Vienna Convention on Consular Relations, 1963, in force from 1967, to which India is a party. Consular immunities are narrower than diplomatic ones. The Convention's Article 36, on access to detained nationals, has produced a series of ICJ cases, including India's case against Pakistan over Kulbhushan Jadhav.

1. Consular Posts and Functions

• Establishment, Article 4. A consular post may be established only with the consent of the receiving state, which also approves its seat and district.
• Functions, Article 5. Protecting the interests of the sending state and its nationals, promoting trade, issuing passports and visas, acting as notary and civil registrar, helping nationals, safeguarding their interests in succession and guardianship, representing them before local authorities, and supervising the sending state's ships and aircraft.
• Exequatur, Article 12. The authorisation of the receiving state admitting the head of a consular post to the exercise of his functions.
• Classes, Article 9. Consuls-general, consuls, vice-consuls and consular agents; honorary consuls, often local residents, enjoy more limited privileges.
• Diplomatic missions. Embassies may also perform consular functions through a consular section (Article 3)

2. Consular and Diplomatic Immunities Compared

Figure 1: Narrower protection for consular officers

• Personal inviolability, Article 41. Consular officers may not be arrested or detained pending trial except for a grave crime and on the decision of a competent judicial authority.
• Immunity from jurisdiction, Article 43. Only for acts performed in the exercise of consular functions, and not for a civil action on a private contract or by a third party for damage from a vehicle, vessel or aircraft accident.
• Evidence, Article 44. Consular officers may be called as witnesses, but no coercive measure may be applied, and they need not give evidence on matters connected with their functions.
• Devyani Khobragade, 2013. India's Deputy Consul General in New York was arrested over visa documents for her domestic worker; as a consular officer, she was immune only for official acts, and India moved her to its UN mission so that she would have diplomatic immunity.

3. Article 36: Detained Nationals

Figure 2: Communication and contact with nationals

4. The Article 36 Cases

Figure 3: From Breard to Jadhav

• Breard (Paraguay v USA), 1998. The ICJ ordered a stay of execution of a Paraguayan national not informed of his consular rights; Virginia executed him anyway, and Paraguay withdrew the case.
• LaGrand (Germany v USA), 27 June 2001. The United States breached Article 36 by not informing two German brothers of their rights; Article 36(1) creates individual rights; the procedural default rule, which barred raising the breach late, violated Article 36(2); and, for the first time, the Court held that its provisional measures are binding.
• Avena (Mexico v USA), 31 March 2004. For 51 Mexican nationals, the US breached Article 36; without delay means once it is realised, or there are grounds to think, that the person is a foreign national; the remedy was review and reconsideration of convictions and sentences through the judicial process.
• Medellín v Texas (US Supreme Court), 2008. The Avena judgment was not directly enforceable in US courts, and a presidential memorandum could not make it so.

5. Jadhav (India v Pakistan)

• Facts. Kulbhushan Sudhir Jadhav, an Indian national, was arrested in Pakistan, which accused him of espionage and terrorism, in 2016, and sentenced to death by a military court in 2017; Pakistan repeatedly refused India's requests for consular access.
• Provisional measures, 18 May 2017. The ICJ ordered Pakistan to take all measures to ensure that Jadhav was not executed pending the final decision.
• Judgment, 17 July 2019. By fifteen votes to one, the Court held that Pakistan had breached Article 36 by not informing Jadhav of his rights without delay, not informing India without delay, and denying India's consular officers access to him; the Convention contains no exception for persons suspected of espionage.
• 2008 bilateral agreement. The India-Pakistan Agreement on Consular Access, 2008 did not displace the Convention's obligations.
• Remedy. Pakistan must inform Jadhav of his rights, allow consular access, and provide effective review and reconsideration of his conviction and sentence, with the stay of execution continuing; the Court did not annul the conviction or order his release, as India had sought.
• Aftermath. Pakistan enacted legislation in 2020 and 2021 to allow review of his case before a High Court.

6. Frequently Asked Questions

Does Article 36 apply to persons accused of espionage?

Yes. In Jadhav (2019), the ICJ held that the Convention contains no exception for espionage, so Pakistan was bound to inform Jadhav of his rights and allow Indian consular access.

What remedy does the ICJ give for breach of Article 36 in criminal cases?

Effective review and reconsideration of the conviction and sentence by the respondent state, taking account of the breach, as in LaGrand, Avena and Jadhav. The Court has not annulled convictions or ordered release.

7. Related Topics

• Topic 18: Subjects of International Law. Individual rights under treaties.
• Topic 36: Diplomatic Immunity. Diplomatic privileges compared.
• Topic 39: Aliens and Diplomatic Protection. Protection of nationals abroad.