On The Interpretation Of Article 36 Of Vienna Convention On Consular Relations

The national court reaffirmed the individual right attribute of the consular notification right.It can be said that Article 36(1)(2)of the Vienna Convention on Consular Relations,as an international convention,gives individuals the right of consular notification,which has basically become an international consensus.In 2017,the International Court of Justice again accepted a case related to Article 36 of the Vienna Convention on Consular Relations,namely the Jadhav case(India v Pakistan).Unlike the former case,the parties in this case are spies with special status.Accordingly,the domestic judicial organs of Pakistan failed to inform Indian citizen Kulbhushan Sudhir Jadhav(hereinafter referred to as Jadhav)of his right to consular notification in time,and sentenced him to death for espionage without obtaining relevant consular assistance.Considering the increasingly prominent national security issues in the current background of terrorism,this case has aroused the deep concern of the international community.This paper focuses on the Jadhav case,sorts out the development process of the case,and analyzes the impact of the case.It can be concluded that the key issues to be studied in interpreting Article 36 of the Vienna Convention on Consular Relations are as follows: First,the scope of application of consular notification right,and answering the question that spies are protected by the Convention;Second,the notification obligation that the receiving country should fulfill,and answer the obligations that the convention requires the receiving country to fulfill;Third,the application of bilateral consular agreements(treaties),and answer the application conditions of bilateral consular agreements(treaties)made between countries.From the perspective of the countries concerned and that of the International Court of Justice,this paper sorts out the methods used by them in interpreting Article 36 of the Vienna Convention on Consular Relations,so as to make it clear that the protection scope of Article 36 of the Vienna Convention on Consular Relations includes all individuals including spies.The receiving country must meet the requirement of "promptness" when fulfilling its consular obligation to inform the sending country of the fact that the foreign party’s freedom is restricted;Two States parties to the Vienna Convention on Consular Relations must comply with the substantive requirements of Article 36 of the Convention when signing subsequent bilateral consular agreements.At the same time,it is certain that the international community has shown more emphasis on humanism and due process when interpreting Article 36 of the Vienna Convention on Consular Relations.In order to solve this problem,China should constantly improve the relevant regulations from the following three aspects: First,in fulfilling the obligations of the Convention,China should construct a multi-link consular notification relief mechanism,and rationally treat the consular assistance of foreign criminal justice in China.Secondly,regarding the legislation of signing consular agreements with foreign countries,China should actively negotiate and sign consular agreements with other countries and organizations,and formulate the contents that comply with the spirit of the convention.Finally,in terms of consular legislation,China should clarify the nature,protection scope and "prompt" requirement of consular notification right.