A Commentary on the Kulbhushan Jadhav Case – Explaining the Rules of the Vienna Convention on Consular Relations
Muskan Arora*
Volume 13 Issue 1 (2020)
The international law doctrine of consular law was articulated from customary international law by international jurists to afford a lawful means by which states could respond to their obligations and violations pertaining to consular access. This paper critically analyses the theoretical value of law of consular relations as embodied in the Vienna Convention on Consular Relations (‘VCCR’) specifically in light of the recent case before the International Court of Justice (‘ICJ’) involving the detention incommunicado of Indian national, Kulbhushan Jadhav, at the behest of Pakistani authorities. It identifies several key shortcomings that problematise the implementation of the doctrine of consular relations. It subsequently examines the precedents before the ICJ invoking the application of the VCCR to preserve its nationals’ due process rights as well as the drafting history of the convention. It uses the same to also analyse the arguments presented by the parties and the decision thereof. It is concluded that the law on consular relations as codified in the VCCR is insufficient and extremely ambiguous in its application, leaving states unwilling to fulfil their obligations under the VCCR as also witnessed in the Kulbhushan Jadhav case. There is a need to remedy this either by further codifying its loose ends or clarifying the meaning of the law. Even though the ICJ had an opportunity to tie these ends in the Kulbhushan Jadhav case, it did not conclusively ascertain the failings of this doctrine and its effect in the international legal community.