By winning a preliminary order from the International Court of Justice that prevents Pakistan from carrying out the execution of Indian national Kulbhushan Jadhav, India has won the battle of perceptions among members of the international community. It has achieved its immediate objective in approaching the ICJ, which has outlined provisional measures that enjoin Pakistan to take all steps needed to ensure that Mr. Jadhav, a former naval officer under death sentence in Pakistan, is not executed pending adjudication of the matter. Pakistan should now inform the court about the steps it takes to implement the order. The ICJ judges are clear that these provisional measures are binding and create international legal obligations for the country to which they are addressed. The ICJ has rejected Pakistan’s objections regarding the urgency of the matter. ICJ also rejected objections to its jurisdiction to take up the case and the claim that a 2008 bilateral agreement between the two countries precluded the matter from being raised before the ICJ. At this early stage, the court was unwilling to let doubts over jurisdiction trump the larger, humanitarian issue of Mr. Jadhav’s execution. It noted that irreparable prejudice would be caused if the court did not indicate provisional measures, especially in the absence of any assurance from Pakistan that he would not be executed before the final decision.
It may appear to be a complete victory for India on the questions of jurisdiction, urgency and the core charge that Pakistan violated the Vienna Convention. However, this is a preliminary ruling and all issues are open for adjudication at the final stage. For now, the court has taken into account the allegation of denial of consular access, and ruled that prima facie , this brought the issue within the purview of Article I of the Optional Protocol to the Vienna Convention, which says disputes regarding the interpretation or application of the Convention would be subject to the ‘compulsory jurisdiction’ of the ICJ. Further, it has noted that there is no exception to the consular access rule for those allegedly involved in ‘espionage’. As an immediate consequence, Pakistan is now under an obligation to grant consular access to Mr. Jadhav. Though it is theoretically possible for Pakistan to ignore the ICJ’s order and go ahead with its internal processes for the disposal of appeals and clemency petitions, it is unlikely to do so. Such a course of action would undermine its international credibility. India will have to leverage the moral and diplomatic advantage it has obtained through this ruling to help Mr. Jadhav prove his innocence before a civilian court and win his freedom. Pakistan must act responsibly and abide by the fundamental norms of international law.
The editorial has been edited for an factual error.
