Kulbhushan Jadhav verdict: UN Security Council may not push Pakistan to comply with ICJ’s order
The International Court of Justice’s verdict will now be tested in its execution or implementation against the recalcitrant Pakistan, which has declared that it is not going to honour the provisional measures.analysis Updated: May 19, 2017 18:40 IST
The International Court of Justice (ICJ) on Thursday said Pakistan cannot hang Indian naval officer Kulbhushan Jadhav for now and ordered Islamabad to give consular access to him. “Pakistan shall take all measures to ensure that Jadhav is not hanged until a final decision by the court,” said ICJ judge Ronny Abraham. “The circumstances of his arrest are in dispute... India should have been given consular access as per Vienna Convention”.
Pakistan says Jadhav, 46, was arrested in March last year in the restive Balochistan province. In April, a military court sentenced him to death for alleged involvement in spying and subversive activities. India has contended he was kidnapped from the Iranian port of Chabahar and his secret trial was a “farce”.
India moved the ICJ citing imminent danger to Jadhav’s life, after Pakistan didn’t respond to 16 requests for consular access to the prisoner.
The ICJ press release said Pakistan’s failure to provide consular notifications with regard to the arrest and detention of Jadhav “appear to be capable of falling within the scope of the Convention.” On this basis, the court concluded that “it has prima facie jurisdiction under Article I of the Optional Protocol.”
Replying to the objection of Pakistan on jurisdiction, the ICJ observed: “The existence of a 2008 bilateral Agreement between the Parties on consular relations does not change its conclusion on jurisdiction.” On the merits, the ICJ held that the violation of consular rights alleged by India “are plausible”. The ICJ found that the link exists between the rights claimed by India and the provisional measures sought.
Finally, on the question whether there is a risk of irreparable prejudice and urgency, the ICJ observed: “Pakistan has given no assurance that Mr Jadhav will not be executed before the Court has rendered its final decision”.
Judge Cancardo Trindade – a Brazilian -- has written a concurring opinion to the order of the ICJ. Judge Dalveer Bhandari – an Indian --- has appended his declaration to the order of the court after considering at length the decisions in the LaGrand case (Germany vs United States) and Guinea v. France and Ukraine v. Russia.
The ICJ verdict will now be tested in its execution or implementation against the recalcitrant Pakistan, which has declared that it is not going to honour the provisional measures.
Unlike the orders passed by national courts, the orders passed by international judicial organs cannot be executed by judicial process of attachment or detention.
The ICJ statute --- Article 41(2) --- mandates that the order shall “forthwith” be given to the Security Council (SC). But the point is: What can the SC do in the circumstances ? Is it strictly obliged to implement the order of the ICJ by sanctioning force or imposing economic sanctions against the recalcitrant Pakistan ?
But Article 94(2) of the UN charter confers discretion on the Council, saying: “If it deems necessary make recommendations or decide upon the measures to be taken to give effect to the judgment.”
The Council had faced difficulties in implementing such orders twice in the past: First, in the Anglo Iranian Oil case in 1951; and second, in the case filed by Nicaragua against the United States in 1986.
The decision of the Security Council will be nothing but a political decision.
If the non-compliance with the ICJ decision is a “procedural matter” under Art.27(2) of the UN Charter, the permanent members of the Council cannot exercise their veto power.
The UN General Assembly’s resolution of 1949 seem to support this interpretation.
India may succeed in persuading the Council to save Jadhav from a certain gallows, if China among the five permanent members has no right to veto in favour of Pakistan, its ally.
Mohan Katarki is a Supreme Court advocate
The views expressed are personal