2008 Bilateral Agreement On Consular Access

The fifth round of talks at the level of interior and interior ministers between Pakistan and India on terrorism and drug trafficking was held in Islamabad on 25 and 26 November 2008 as part of the composite dialogue. The Pakistani delegation was led by Syed Kamal Shah, Secretary of the Ministry of Home Affairs, while the Indian delegation was led by Madhukar Gupta, Minister of Home Affairs of India. Indian lawyers began the arguments by identifying two general problems that arose in the case. The first concerns the violation of article 36 of the 1963 Vienna Convention on Consular Relations (VCCR) and the second is a somewhat broader argument on the facilitation to be obtained in this case in the event of a positive decision on the violation of article 36. Indian lawyers stressed the importance of the special exemption from release invoked by India, unlike Avena or La Grand Case, where the ICJ had ordered a new review. Throughout the hearing, they had been sufficiently confident that the first question was based on a very simple observation of the first facie. It seems, however, that there is a missing point in the Indian view of the case. The 2008 bilateral agreement between India and Pakistan on consular access is not addressed in its interpretation. It is simply based on a theory that the 2008 agreement does not alter the obligations of the State of Pakistan under the Vienna Convention on Consular Relations. Perhaps the Pakistani state has succeeded in setting the context for the dispute over an alleged espionage case and moving the arguments away from the text of the treaty. Paragraphs (i-iv) of the 2008 bilateral agreement improve these provisions of Article 36. They are not unimportant as such. Paragraph (ii) requires the receiving State to immediately inform the sending State of the arrest of its nationals, whether or not the national so requests.

This is an extension of the right referred to in Article 36(b) of the RABC. Paragraph (iv) improves the position of Article 36(b) by attaching to the words `without delay` in Article 36(b) a `maximum period of three months` within which `consular access shall be granted`. Paragraph (iii) further improves the provisions of the CSV by reiterating the intention of the receiving State to promptly inform the conviction of nationals of the sending State. Ideally, India could have relied on these provisions before the ICJ to identify further cases of violations of its rights by the Pakistani state. Although it is stated in paragraph vi: “In the event of arrest, detention or conviction for political or security reasons, either party may consider the case on the merits”, it is not clear whether this could mean a limitation of the right to consular access. . . .

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