Before we begin, I implore the readers to humor me for a moment. Imagine being a common man who decides to go to a different country, imagine one fine evening you being arrested, transferred to another country, being charged with spy craft and being denied access to contact your homeland, your family, and essential everyone and everything you have ever known; sounds like a nightmare right? But alas it is the bitter reality of hundreds across the world and closer home, exactly what happened in Kulbhushan Jadhav’s case. However these are not lawless and uncharted territory, there exist provisions under the international law of Consular Access to avoid these contingencies, let us take a closer look at the same.
Most of the modern nations and necessarily all of the closely linked nations either geographically or politically have consulates in the other states. A Consul is an official appointed by a state to live in a foreign city and protect the state’s citizens and interests there, and his office the consulate, Consular access is the ability of foreign nationals seeking help, in jeopardy, to have access to consulate or embassy officials of their own country in the host nation.
This is essential for protection of ones interest in an alien state, without which it becomes next to impossible for a person to stand on equal footing and contest with an entire state machinery. The right can be construed to have been emanated from the right to self-determination mentioned under the article 1 of the UDHR alongside of course the principles of natural justice, however it gained explicit force through the Vienna Convention on Consular Relation (VCCR).
VCCR: Article 36 of the VCCR titled “Communication and contact with nationals of the sending State” deals with the mutual rights of foreign nationals
Section 1: Clause (a) states that the Consul referred to as “Consular Officer” shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State. Thus reciprocal rights are granted under the clause which probably eruditely added to provide impetus to states to grant wide ranging freedom of access so as to ensure the same for themselves in the other country, ultimately reinforcing the Human rights and dignity of these foreign nationals.
Clause (b) states that if so requested, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner and any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under the said clause.
Here, emphasis is laid twice on “communication without delay” this becomes essential where people are made to languish in the custody of the authorities, where their simple communication requests are “still being processed” for years at times and furthermore the clause mandates that an unaware individual should be informed of this right so as to make sure he does not suffer due to his ignorance of the intricacies of international law.
All the above provisions are futile when the alien national is not allowed to meet with his consul, the Supreme Court of India whose judgments are widely used in common law countries and beyond for their sound reasoning has proclaimed that a Judge has a duty to inform an indigent accused that he has the right to counsel furthermore, In Ranjan Dwivedi v. Union of India, the Court also stated that there is “no doubt” that the accused is entitled to financial assistance to engage a counsel of the accused’s choice.
Enshrining these principles Clause (c) states that the consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment . Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
Thus at the same time limiting the power of the Consul so as to not grant it arbitrary and authoritative standing, a Consulate officer is just what the name suggest an official to go to for sound counsel nothing more and nothing less.
Section 2 of the article states that The rights referred under the article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended. Thus making it enforceable for the signatory nations.
India is on the bedrock of being a signatory to the convention along with Pakistan successfully via the ICJ gained a ruling in the favor of granting consular access to Jadhav, however enforceability on paper and on ground zero remains starkly different scenario, whatever maybe the result, the aftermath of this tussle between India and Pakistan is sure to have profound impact on the International consular laws in the years to come.