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India Likely Won't be Allowed to Speak to Kulbhushan Jadhav in Private. Here's Why.
The Vienna Convention allows for consular access, but does not spell out whether conversation between an incarcerated foreigner and consulate officials should be completely confidential.
India had sought repeated access to Jadhav over a dozen times since his arrest was announced in March 2016. Photo: Reuters
Devirupa Mitra
DIPLOMACY
3 HOURS AGO
New Delhi: When Kulbhushan Jadhav gets to meet an Indian government official for the first time in over three years, he will likely do so in the full glare of Pakistani officials watching and listening intently to his every word.
On July 17, the International Court of Justice (ICJ) found Pakistan “under obligation to cease internationally wrongful acts of a continuing character” for violating the 1963 Vienna Convention on Consular Relations.
Two days later, the Pakistan government announced it was working out the modalities to grant consular access to Jadhav “as per Pakistani laws”.
India had sought repeated access to Jadhav over a dozen times since his arrest was announced in March 2016. Pakistan alleged that Jadhav was a serving Indian defence personnel who was picked up from Balochistan province. India dismissed all these charges and claimed that Jadhav, a retired naval officer, was kidnapped from inside Iran.
He was sentenced to death by a Pakistani military court on espionage and terrorism charges in April 2017, which led to India initiating proceedings at Hague-based ICJ.
The court, in its final binding judgment, had also instructed Pakistan to review and reconsider the sentencing of Jadhav by ensuring that it considers the “full weight” of the effect of the violation of Jadhav’s rights under international law.
India has always claimed that Jadhav had been put under “considerable stress” and that his video ‘confessions’ showed evidence of “tutoring”. If Jadhav does confirm India’s suspicion verbally, it would be useful from New Delhi’s perspective to buttress its narrative and also help during the review process.
However, it all depends on whether Jadhav changes his statement in front of Indian officials – since the consular access is expected to be as restrictive as during the visit of family members in December 2017.
Confidentiality
That’s because the Vienna Convention allows for consular access, but does not spell out whether the conversation between an incarcerated foreigner and consulate officials should be completely confidential.
This crucial aspect seems to have been left to the discretion of each country. Article 36’s second paragraph notes that rights to consular access shall have to be “exercised in conformity with the laws and regulations of the receiving state”. The condition, though, is that the laws and regulation will allow for the rights enshrined in the first part of the article to be realised as intended. Therefore, there is varied practice throughout the world.
In Pakistan, prison management is directed by the Pakistan prison rules, 1978. However, this extensive compendium has no mention of how Pakistani authorities should behave during the visit of diplomatic or consular representatives or stage consular access.
A measure of Pakistani view of consular access can be gleaned from the experience of Indian diplomats posted in the neighbouring country. At any one time, there are hundreds of Indian fishermen and civilian prisoners who are behind bars in Pakistan – and vice versa.
Also read | Kulbhushan Jadhav Case: The Legal Arguments
As per Indian sources who had dealt with consular access in Pakistan, any meeting with imprisoned Indian nationals is observed by Pakistani officials. Since Pakistani officials remain close by their side, they overhear all conversations. “This has been the standard practice,” he said.
Guidelines on visits
Prior to the visit of Jadhav’s wife and mother to Pakistan, the understanding reached on the modalities was that there would be an Indian diplomat, one officer from the Pakistan foreign ministry and a lady Pakistani security official present during the meeting. It was also decided to record the meeting through video cameras.
Across the border, the model Indian prison manual that was issued in 2016 does have some guidelines on “Communication with or Visit to foreign nationals”.
File photo of Kulbhushan Jadhav meeting his family. Photo: Handout via PTI
It states that consulate officials can visit their nationals after prison authorities get the requisite orders from the higher level. Significantly, it does wade into the issue whether consular officials can have a private talk with their nationals – and leans firmly only one side.
Note: The right to interview a foreign national in prison does not mean a private interview and does not include the right to inspect the living quarters of the prisoner/detenue. This is also subject to general regulations regarding interviews in prisons. [2016 Model Indian Prison Manual]
In the preceding sub-section in the manual, the rules for interviews of all prisoners state that “interviews” of any prisoner convicted or held under anti-terror and preventive detection laws should be held in the presence of an intelligence officer or an investigative officer and an “experienced” prison officer.
A 2010 book on consular access laws across the world notes that there is diversity in how nations have implemented Article 36 of the Vienna convention.
While India and Pakistan are clearly on one side of the debate, the book documents how other states “regard any monitoring of the content of communication as a violation of the right of access and contact as between a consul and a national”.
“A detainee may want to communicate to a consul the fact that police are mistreating him or her. The detainee may fear reprisal if the police know of this communication…. If privacy of communication is not assured, the purpose of having such communication may be vitiated,” the authors wrote.
Both Norway and the UK have made it mandatory by law that communication between a consular official and detained individual – which includes verbal conversation – has to be private.
In the US, there is no specific federal law, which ensures that there is explicit reference to private communication between the foreign consul and the detained national.
The manual issued by the state department to law enforcement officials at federal, state and local levels asserts that “privacy is encouraged but not required”. “The monitoring of consular conversations may have a chilling effect on the foreign national’s ability to communicate freely with the consular officer about issues that go to the core of consular assistance,” said the latest manual issued in September 2018.
Since the 1963 Vienna Convention does not expressly state that consular visits have to be private, a paper published in 2013 in Southern Illinois University Law Journal noted that a “significant number” of bilateral consular conventions have provisions ensuring “some degree of privacy in consular visits”.
However, their scope varies widely.
Even before the VCCR was drafted and brought into force, a 1952 Consular convention between the US and the UK states consular officer shall be permitted to “converse privately with… any national of the sending state who is so confined and detained”.
Also read | Beyond the Hurrahs, Eight Takeaways from the ICJ Ruling on Kulbhushan Jadhav
But, the 2008 agreement between Japan and China has no explicit reference to privacy, except noting that the right to converse “in a language of consular officer’s choice”. However, if consular officers converse in a language other than the language of the state where the person has been detained, then consular officers will have to orally inform the content of their conversation on request.
Right to privacy in communication
Of course, any mention of whether the right to privacy in communication is included in bilateral pacts often reveals the state of relations between the two countries and their priorities.
There is no allusion to the need for private consular conversation in the 1967 bilateral treaty between the UK and the Soviet Union. Similarly, the 1980 consular convention between the US and China only speaks of the right of a consular officer to visit and converse with their nationals in the language of either state.
According to the State Department, the US has treaties with 36 countries which allow their consular officers to converse with their nationals in private.
India has never signed a bilateral consular convention with the US. In fact, the ministry of external affair’s treaties database shows that India has only signed “Consular convention” with four countries – erstwhile Czechoslovakia (1974), East Germany (1974), Russia (1986) and China (1991).
The bilateral treaty between India and Pakistan concluded in 2008 has no mention about the issue of privacy of communication in consular access.
In his 2013 paper cited above, Mark Warren had also raised questions about the efficacy of private consular conversation, since they are can be monitored through hidden devices and torture victims are typically compelled to tell consular officials that they are being treated well.
“Until there is compelling evidence to the contrary, all representatives of the sending State should assume that at-risk detainees have been tortured regardless of the individual’s own assertions of good treatment, based on authoritative reports regarding the receiving State’s human rights record and other reliable indicators of its typical practices,” he concluded.
https://thewire.in/diplomacy/kulbhushan-jadhav-consular-access-icj-india-pakistan
The Vienna Convention allows for consular access, but does not spell out whether conversation between an incarcerated foreigner and consulate officials should be completely confidential.
India had sought repeated access to Jadhav over a dozen times since his arrest was announced in March 2016. Photo: Reuters
Devirupa Mitra
DIPLOMACY
3 HOURS AGO
New Delhi: When Kulbhushan Jadhav gets to meet an Indian government official for the first time in over three years, he will likely do so in the full glare of Pakistani officials watching and listening intently to his every word.
On July 17, the International Court of Justice (ICJ) found Pakistan “under obligation to cease internationally wrongful acts of a continuing character” for violating the 1963 Vienna Convention on Consular Relations.
Two days later, the Pakistan government announced it was working out the modalities to grant consular access to Jadhav “as per Pakistani laws”.
India had sought repeated access to Jadhav over a dozen times since his arrest was announced in March 2016. Pakistan alleged that Jadhav was a serving Indian defence personnel who was picked up from Balochistan province. India dismissed all these charges and claimed that Jadhav, a retired naval officer, was kidnapped from inside Iran.
He was sentenced to death by a Pakistani military court on espionage and terrorism charges in April 2017, which led to India initiating proceedings at Hague-based ICJ.
The court, in its final binding judgment, had also instructed Pakistan to review and reconsider the sentencing of Jadhav by ensuring that it considers the “full weight” of the effect of the violation of Jadhav’s rights under international law.
India has always claimed that Jadhav had been put under “considerable stress” and that his video ‘confessions’ showed evidence of “tutoring”. If Jadhav does confirm India’s suspicion verbally, it would be useful from New Delhi’s perspective to buttress its narrative and also help during the review process.
However, it all depends on whether Jadhav changes his statement in front of Indian officials – since the consular access is expected to be as restrictive as during the visit of family members in December 2017.
Confidentiality
That’s because the Vienna Convention allows for consular access, but does not spell out whether the conversation between an incarcerated foreigner and consulate officials should be completely confidential.
This crucial aspect seems to have been left to the discretion of each country. Article 36’s second paragraph notes that rights to consular access shall have to be “exercised in conformity with the laws and regulations of the receiving state”. The condition, though, is that the laws and regulation will allow for the rights enshrined in the first part of the article to be realised as intended. Therefore, there is varied practice throughout the world.
In Pakistan, prison management is directed by the Pakistan prison rules, 1978. However, this extensive compendium has no mention of how Pakistani authorities should behave during the visit of diplomatic or consular representatives or stage consular access.
A measure of Pakistani view of consular access can be gleaned from the experience of Indian diplomats posted in the neighbouring country. At any one time, there are hundreds of Indian fishermen and civilian prisoners who are behind bars in Pakistan – and vice versa.
Also read | Kulbhushan Jadhav Case: The Legal Arguments
As per Indian sources who had dealt with consular access in Pakistan, any meeting with imprisoned Indian nationals is observed by Pakistani officials. Since Pakistani officials remain close by their side, they overhear all conversations. “This has been the standard practice,” he said.
Guidelines on visits
Prior to the visit of Jadhav’s wife and mother to Pakistan, the understanding reached on the modalities was that there would be an Indian diplomat, one officer from the Pakistan foreign ministry and a lady Pakistani security official present during the meeting. It was also decided to record the meeting through video cameras.
Across the border, the model Indian prison manual that was issued in 2016 does have some guidelines on “Communication with or Visit to foreign nationals”.
File photo of Kulbhushan Jadhav meeting his family. Photo: Handout via PTI
It states that consulate officials can visit their nationals after prison authorities get the requisite orders from the higher level. Significantly, it does wade into the issue whether consular officials can have a private talk with their nationals – and leans firmly only one side.
Note: The right to interview a foreign national in prison does not mean a private interview and does not include the right to inspect the living quarters of the prisoner/detenue. This is also subject to general regulations regarding interviews in prisons. [2016 Model Indian Prison Manual]
In the preceding sub-section in the manual, the rules for interviews of all prisoners state that “interviews” of any prisoner convicted or held under anti-terror and preventive detection laws should be held in the presence of an intelligence officer or an investigative officer and an “experienced” prison officer.
A 2010 book on consular access laws across the world notes that there is diversity in how nations have implemented Article 36 of the Vienna convention.
While India and Pakistan are clearly on one side of the debate, the book documents how other states “regard any monitoring of the content of communication as a violation of the right of access and contact as between a consul and a national”.
“A detainee may want to communicate to a consul the fact that police are mistreating him or her. The detainee may fear reprisal if the police know of this communication…. If privacy of communication is not assured, the purpose of having such communication may be vitiated,” the authors wrote.
Both Norway and the UK have made it mandatory by law that communication between a consular official and detained individual – which includes verbal conversation – has to be private.
In the US, there is no specific federal law, which ensures that there is explicit reference to private communication between the foreign consul and the detained national.
The manual issued by the state department to law enforcement officials at federal, state and local levels asserts that “privacy is encouraged but not required”. “The monitoring of consular conversations may have a chilling effect on the foreign national’s ability to communicate freely with the consular officer about issues that go to the core of consular assistance,” said the latest manual issued in September 2018.
Since the 1963 Vienna Convention does not expressly state that consular visits have to be private, a paper published in 2013 in Southern Illinois University Law Journal noted that a “significant number” of bilateral consular conventions have provisions ensuring “some degree of privacy in consular visits”.
However, their scope varies widely.
Even before the VCCR was drafted and brought into force, a 1952 Consular convention between the US and the UK states consular officer shall be permitted to “converse privately with… any national of the sending state who is so confined and detained”.
Also read | Beyond the Hurrahs, Eight Takeaways from the ICJ Ruling on Kulbhushan Jadhav
But, the 2008 agreement between Japan and China has no explicit reference to privacy, except noting that the right to converse “in a language of consular officer’s choice”. However, if consular officers converse in a language other than the language of the state where the person has been detained, then consular officers will have to orally inform the content of their conversation on request.
Right to privacy in communication
Of course, any mention of whether the right to privacy in communication is included in bilateral pacts often reveals the state of relations between the two countries and their priorities.
There is no allusion to the need for private consular conversation in the 1967 bilateral treaty between the UK and the Soviet Union. Similarly, the 1980 consular convention between the US and China only speaks of the right of a consular officer to visit and converse with their nationals in the language of either state.
According to the State Department, the US has treaties with 36 countries which allow their consular officers to converse with their nationals in private.
India has never signed a bilateral consular convention with the US. In fact, the ministry of external affair’s treaties database shows that India has only signed “Consular convention” with four countries – erstwhile Czechoslovakia (1974), East Germany (1974), Russia (1986) and China (1991).
The bilateral treaty between India and Pakistan concluded in 2008 has no mention about the issue of privacy of communication in consular access.
In his 2013 paper cited above, Mark Warren had also raised questions about the efficacy of private consular conversation, since they are can be monitored through hidden devices and torture victims are typically compelled to tell consular officials that they are being treated well.
“Until there is compelling evidence to the contrary, all representatives of the sending State should assume that at-risk detainees have been tortured regardless of the individual’s own assertions of good treatment, based on authoritative reports regarding the receiving State’s human rights record and other reliable indicators of its typical practices,” he concluded.
https://thewire.in/diplomacy/kulbhushan-jadhav-consular-access-icj-india-pakistan
