520

                DECLARATION OF JUDGE IWASAWA

   Applicability of the clean hands doctrine to the present case — Anti-terrorism
conventions also require consular access to be granted without delay — Relationship
between the Vienna Convention and subsequent agreements — If the
2008 Agreement was intended to allow limitation of consular access in cases of
espionage, Article 36 of the Vienna Convention would prevail over the
2008 Agreement.

  1. I have voted in favour of all the Court’s ﬁndings in the operative
paragraph (Judgment, para. 149) and agree for the most part with the
reasoning set out in the Judgment. I oﬀer here additional explanations for
my support for the ﬁndings and set forth my views on some issues not
dealt with by the Court in the Judgment.

                       I. The Clean Hands Doctrine

  2. The Court rejected an objection based on the clean hands doctrine
ﬁve months ago in Certain Iranian Assets. In that case, the Court noted
that “the United States has not argued that Iran, through its alleged con-
duct, has violated the Treaty of Amity, upon which its Application is
based”, and then declared that

      “[w]ithout having to take a position on the ‘clean hands’ doctrine, the
      Court considers that, even if it were shown that the Applicant’s con-
      duct was not beyond reproach, this would not be suﬃcient per se to
      uphold the objection to admissibility raised by the Respondent on the
      basis of the ‘clean hands’ doctrine” (Certain Iranian Assets (Islamic
      Republic of Iran v. United States of America), Preliminary Objections,
      Judgment, I.C.J. Reports 2019, p. 44, para. 122; see also Avena and
      Other Mexican Nationals (Mexico v. United States of America), Judg-
      ment, I.C.J. Reports 2004 (I), p. 38, para. 47; Maritime Delimitation
      in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judg-
      ment, I.C.J. Reports 2017, p. 52, para. 142).
  3. In the present case, Pakistan gives three grounds for its objection
based on the clean hands doctrine : the fact that India provided Mr. Jad-

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521                     jadhav (decl. iwasawa)

hav with an authentic Indian passport bearing a false identity ; India’s
failure to provide any substantive response to Pakistan’s request for
mutual legal assistance ; and the fact that India sent Mr. Jadhav into the
territory of Pakistan to conduct espionage and terrorist activities. These
allegations do not relate to the Vienna Convention on Consular Relations
(VCCR) upon which India’s Application is based. In the circumstances of
the present case, as in Certain Iranian Assets, I agree that Pakistan’s
objection based on the clean hands doctrine does not by itself render
India’s Application inadmissible (see Judgment, para. 61). An objection
based on the clean hands doctrine may make an application inadmissible
only in exceptional circumstances.

                  II. The Right to Consular Access

   4. Subsequent to the conclusion of the VCCR in 1963, States have con-
cluded a number of anti-terrorism conventions in which they have
included the right of a person suspected of terrorism to have access with-
out delay to the representative of the State of which he is a national. For
example, the Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation of 1971 provides that “[a]ny person in cus-
tody [for the purpose of prosecution or extradition for an oﬀence under
the Convention] shall be assisted in communicating immediately with the
nearest appropriate representative of the State of which he is a national”
(Art. 6, para. 3). Comparable provisions are also found in the Conven-
tion on Oﬀences and Certain Other Acts Committed on Board Aircraft,
of 1963 (Art. 13, para. 3), the Convention on the Prevention and Punish-
ment of Crimes against Internationally Protected Persons, of 1973 (Art. 6,
para. 2), the International Convention against the Taking of Hostages,
of 1979 (Art. 6, para. 3), the Convention on the Safety of United Nations
and Associated Personnel, of 1994 (Art. 17, para. 2), the International
Convention for the Suppression of Terrorist Bombings, of 1997 (Art. 7,
para. 3), the International Convention for the Suppression of the Financ-
ing of Terrorism, of 1999 (Art. 9, para. 3) and the International Conven-
tion for the Suppression of Acts of Nuclear Terrorism, of 2005 (Art. 10,
para. 3). In the present case, Mr. Jadhav was charged with espionage and
terrorism. Although they are diﬀerent crimes, they have in common that
the receiving State may be inclined to delay consular access in both cases.
The aforementioned conventions nevertheless require that consular access
be granted without delay in cases of terrorism. According to the rules of
treaty interpretation reﬂected in the Vienna Convention on the Law of
Treaties (VCLT), together with the context, subsequent practice in the

107

522                     jadhav (decl. iwasawa)

application of the treaty (Art. 31 (3) (b)) and any relevant rules of inter-
national law (Art. 31 (3) (c)) should be taken into account, and recourse
may be had to supplementary means of interpretation (Art. 32). In my
view, the anti-terrorism conventions oﬀer helpful guidance on the prac-
tice of the parties to the VCCR in respect of consular access, thus provid-
ing additional support for the interpretation that Article 36 of the VCCR
requires consular access without delay also for persons suspected of espi-
onage.

       III. Article 73, Paragraph 2, of the Vienna Convention
                        on Consular Relations

   5. Article 73 of the VCCR addresses the relationship between the Con-
vention and agreements concluded between certain of its parties. It deals
with prior agreements in paragraph 1 and subsequent agreements in para-
graph 2.
   6. Paragraph 1 provides: “The provisions of the present Convention
shall not aﬀect other international agreements in force as between States
parties to them.” Until 1963, when the VCCR was adopted, consular
issues were mostly regulated by a network of bilateral agreements whose
content varied. The drafters of Article 73, paragraph 1, intended prior
international agreements to remain intact. It is clear from this provision
that if the VCCR conﬂicts with a prior agreement, the prior agreement
prevails.

  7. Paragraph 2 relates to subsequent agreements. Given that consular
matters were regulated by bilateral agreements in various ways, the
purpose of the VCCR was to set, to the extent possible, uniform and
minimum standards on consular relations, especially on the privileges
and immunities of consular oﬃcers. It is in this context that Article 73,
paragraph 2, provides: “Nothing in the present Convention shall
preclude States from concluding international agreements conﬁrming
or supplementing or extending or amplifying the provisions thereof.”
This provision authorizes the parties to the VCCR to conclude
subsequent agreements “conﬁrming or supplementing or extending or
amplifying” the provisions of the VCCR. Thus, States may conclude
agreements which would regulate matters not dealt with by the VCCR
or facilitate the application of the VCCR, such as those stipulating the
location of consular posts and the number of consular staﬀ. States may

108

523                     jadhav (decl. iwasawa)

also conclude agreements which would raise the standards between them,
for example by conferring more extensive privileges and immunities.

   8. Article 73, paragraph 2, sets out conditions to be fulﬁlled by subse-
quent agreements in order for them to be legitimate under the VCCR.
They must only conﬁrm, supplement, extend or amplify the provisions of
the VCCR. Subsequent agreements not meeting these conditions are
“preclude[d]” by Article 73, paragraph 2. Thus, in accordance with the
ordinary meaning to be given to the terms in their context and in the light
of the object and purpose of the VCCR, Article 73, paragraph 2, should
be interpreted as not allowing the parties to the VCCR to conclude sub-
sequent agreements which would derogate from the obligations of the
VCCR.
   9. This interpretation of Article 73, paragraph 2, is conﬁrmed by the
travaux préparatoires of the VCCR. Paragraph 2 has its origin in an
amendment to Article 73 proposed by India at the Vienna Conference in
1963. During the discussion, the amendment was understood as limiting
“the scope of future agreements to provisions which conﬁrmed, supple-
mented, extended or ampliﬁed those of the multilateral convention”
(Official Records of the United Nations Conference on Consular Relations,
Vienna, 4 March-22 April 1963 (United Nations, doc. A/CONF.25/16),
Vol. I, p. 235, para. 26 (Chile)). India itself explained that “[a] new
convention could supplement, extend or amplify the provisions of the
multilateral convention, but it must not reverse those provisions”,
because “[i]t was undesirable to leave States free to contract out of the
basic rules of international law laid down in order to rationalize and
harmonize consular law” (ibid., p. 234, paras. 11-12 (India)).

   10. Moreover, the interpretation indicated above is in line with the
account given by the International Law Commission (ILC) in 1966,
three years after the adoption of the VCCR, in its commentary to draft
Article 30 of the VCLT. The ILC stated that some clauses inserted in
treaties for the purpose of determining the relation of their provisions to
those of other treaties entered into by the contracting States, such as

      “paragraph 2 of article 73 of the Vienna Convention of 1963 on Con-
      sular Relations, which recognizes the right to supplement its provi-
      sions by bilateral agreements, merely conﬁrm the legitimacy of
      bilateral agreements which do not derogate from the obligations of
      the general Convention” (Yearbook of the International Law Commis-
      sion, 1966, Vol. II, p. 214, para. 4, emphasis in the original).

109

524                      jadhav (decl. iwasawa)

   11. The VCLT contains Article 30 on the “Application of successive
treaties relating to the same subject-matter” and Article 41 on “Agree-
ments to modify multilateral treaties between certain of the parties only”.
These provisions set forth rules on the relationship between successive
treaties relating to the same subject-matter. Article 41, in particular, sheds
light on the relationship between a prior multilateral treaty and a subse-
quent agreement concluded between certain of its parties and on the role
that Article 73, paragraph 2, of the VCCR may play in this regard. Thus,
Articles 30 and 41 of the VCLT are relevant to the examination of the
relationship between the VCCR and the 2008 Agreement. In fact, both
Parties in this case referred to Article 41 of the VCLT in their arguments.
However, as neither India nor Pakistan is a party to the VCLT, I only
mention Articles 30 and 41 of the VCLT in passing and refrain from dis-
cussing them in detail in this declaration.

   12. A subsequent agreement which derogates from the obligations of
the VCCR would not be invalidated because it does not meet the condi-
tions set forth in Article 73, paragraph 2. In the discussion held by the
ILC on the eﬀects of subsequent agreements not meeting the conditions
stipulated in Article 41 of the VCLT, it was generally agreed that such
agreements would not be invalidated. While they are not invalidated, they
are inapplicable between the parties concerned. Article 73, paragraph 2,
of the VCCR allows only subsequent agreements meeting certain condi-
tions. A subsequent agreement not meeting those conditions should not
prevail over the VCCR. Otherwise, the purpose of limiting the scope of
subsequent agreements to those meeting certain conditions would be
defeated. Thus, if a subsequent agreement derogates from the obligations
of the VCCR, the VCCR prevails over the agreement and is applied to
the relations between the parties concerned. These conclusions would also
ﬁnd support in the rules set forth in Article 41 of the VCLT.

   13. Accordingly, in my view, even assuming arguendo that the
2008 Agreement was intended to allow limitation of consular access in
cases of espionage, Article 36 of the VCCR would prevail over the
2008 Agreement and would apply in the relations between India and Pak-
istan.

                                                (Signed) Yuji Iwasawa.

110


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE NOTTEBOHM

(LIECHTENSTEIN c. GUATEMALA)

ORDONNANCE DU 15 JANVIER 1954

1954

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

NOTTEBOHM CASE

(LIECHTENSTEIN v. GUATEMALA)
ORDER OF JANUARY 15th, 1954
La présente ordonnance doit étre citée comme suit:

« Affaire Nottebohm,
Ordonnance du 15 janvier 1954: C.I.J. Recueil 1954, p. 7.»

This Order should be cited as follows:

“Nottebohm case,
Order of January 15th, 1954: I.C.J. Reports 1954, p. 7.”

N° de vente : 113
Sales number

INTERNATIONAL COURT OF JUSTICE

YEAR 1054

January 15th, 1954

NOTTEBOHM CASE

(LIECHTENSTEIN v. GUATEMATA)

ORDER

The President of the International Court of Justice,
having regard to Article 48 of the Statute of the Court,
having regard to Article 37 of the Rules of Court ;

Having regard to the Judgment of November 18th, 1953,
whereby the Court rejected the Preliminary Objection presented
by the Government of the Republic of Guatemala in the Nottebohm
case, resumed the proceedings on the merits and fixed time-limits
for the rest of the procedure,

Whereas by letter of January 4th, 1954, filed in the Registry
on the same day, the Agent for the Government of Guatemala
requested the extension to the end of July 1954 of the time-limit
for the filing of the Counter-Memorial of the Government of
Guatemala, for which January 20th, 1954, had been fixed as the
time-limit by the Judgment of November 18th, 1953,

Whereas the Agent for the Government of Liechtenstein, to
whom the aforesaid request had been communicated, has by
telegram of January 14th, 1954, indicated that he had no objection
to an extension of the said time-limit for three months, that is
to April 2oth, 1954 ;

Fixes April 2oth, 1954, as the time-limit for the filing of the
Counter-Memorial of the Government of Guatemala ;

Reserves the rest of the procedure for further decision.

1954
January 15tt
General List

No. 18
NOTTEBOHM CASE (ORDER OF I5 I 54) 8

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this fifteenth day of January,
one thousand nine hundred and fifty-four, in three copies, one of
which will be placed in the archives of the Court and the others
transmitted to the Governments of the Principality of Liechten-
stein and of the Republic of Guatemala, respectively.

(Signed) ARNoLD D. McNair,
President.

(Signed) J. LOPEZ OLIVAN,
Registrar.