India’s efforts to save former naval officer Kulbhushan Jadhav from the gallows got a boost after the international court of justice (ICJ) at The Hague intervened and stayed his execution by Pakistan. The Indian government has filed a lawsuit in the world court challenging the findings of a Pakistani military court –which accused and convicted Jadhav of terrorism and spying. India’s contention in the world court is that despite an international treaty – the Vienna convention on Consular Relations – there has been an “egregious violation” of it by Pakistan.
According to the treaty, any person arrested or detained in a foreign country has the right to have their embassy notified of the same. However, in Jadhav’s case no consular access was given. Now the question arises on the sanctity of the world court’s ruling. Are the court’s orders binding? The answer to this has been given by the world court in its previous judgments. Let’s take the example of the LaGrand case- where two German brothers Karl-Heinz and Walter Bernhard LaGrand were accused and tried for armed burglary and murder in the state of Arizona, US. Subsequently the brothers were charged and convicted of murder and sentenced to death.
The LaGrands were German nationals. As foreigners, they should have been informed of their right to consular assistance, under the Vienna Convention but United States did not do so. Germany filed a law suit against US and got a stay on execution of one of the brothers as an interim measure. And for the first time the world court ruled that provisional measures orders issued by the Court are binding on the parties. Similarly, in 2003, Mexico approached the ICJ seeking a stay on the executions of 54 Mexicans on death row in the United States on the same grounds. The world court passed an interim order directing the US to take all measures necessary to ensure that the three Mexican death row convicts are not executed pending the final disposal of the case.
While earlier rulings of the world court suggest that the order granting interim relief will be binding on Pakistan, it does not bar Pakistan from raising issues like jurisdiction and other questions in the dispute subsequently. And let’s not forget the 1999 incident where India shot down a Pakistani military plane over the Rann of Kutch. The matter was taken to the world court and India’s argument was based on the fact that the world court has no jurisdiction over the matter. It looks like Pakistan will abide by the interim orders, because non- compliance may give rise to new political tensions in the region. While criticism will flow from some quarters on India’s move to approach the world court – it opens new vistas for conflict resolution.