In July, the International Court of Justice (ICJ) had unanimously held Pakistan’s actions in the Kulbhushan Jadhav case to be violative of its obligations under the Vienna Convention. Islamabad was directed to immediately cease its “wrongful acts” of a “continuing character”. While India’s plea for Mr. Jadhav’s release was rejected, the ICJ noted, as imperative, its direction to Pakistan to review and reconsider the conviction and sentence of Mr. Jadhav. It went to the extent of saying that this directive was to be followed even if Pakistan was required to enact appropriate legislation in this behalf. The ICJ noted that the obligation to provide effective review and reconsideration is “an obligation of result” which “must be performed unconditionally”. The ICJ directed Pakistan to inform Mr. Jadhav forthwith about his rights and to arrange for his legal representation, and provide India consular access.
Recourse to the UNSC
Indian diplomatic officials were granted consular access to Mr. Jadhav six weeks after the verdict. Post this two-hour interaction, the External Affairs Ministry stated that “Jadhav appeared to be under extreme pressure to parrot a false narrative to bolster Pakistan’s untenable claims”, most likely relating to Mr. Jadhav’s purported confessional statement. Since this first round of consular access, India’s repeated requests for a follow-on session have been snubbed, perhaps owing to the breakdown in bilateral ties between India and Pakistan over India’s decision on Jammu and Kashmir. While a diplomatic and negotiated resolution is preferable, it doesn’t seem imminent especially after the brinkmanship displayed by the Pakistani Prime Minister at the UN General Assembly. Fortunately, India has other options to seek enforcement of the ICJ verdict.
Notably, judgments of the ICJ are final and without appeal. The ICJ has the exclusive authority over any dispute relating to the meaning and scope of its judgments. The UN Charter mandates that each member state of the UN should comply with the ICJ’s decisions. So, if Pakistan fails to perform the obligations incumbent upon it under the July judgment, then India has recourse to the UN Security Council (UNSC) under the Charter. At such initiation, if the UNSC deems it necessary, it can make recommendations or decide the measures to be undertaken to give effect to the judgment. A debate may ensue before the UNSC, and the defaulting state may also seek to advance arguments questioning the validity of the ICJ verdict.
The Nicaragua example
This process was tested many years ago in ‘Military and Paramilitary Activities in and against Nicaragua’. At the time, Nicaragua had a judgment in its favour. It called upon the U.S. to comply with the judgment, and upon its failure, approached the UNSC. Accordingly, a draft resolution was adopted and, as a permanent member, the U.S. expectedly voted against it. Nicaragua then approached the General Assembly even though, unlike the UNSC, the General Assembly is not specifically vested with the power to deal with non-compliance and non-enforcement of the ICJ’s decisions. Notwithstanding, the General Assembly allowed voting to be carried out on “decisions to remind members of their obligations under the Charter”. And while the decision of the General Assembly was non-binding, it was put to the floor where it received 94 votes to three, with 47 abstentions. The objective was to emphasise on members not to defeat the purpose of the Charter and its obligations.
And while neither the UNSC nor the General Assembly will ever interfere with the judicial authority of the ICJ, the UNSC may “make recommendations or decide upon measures to be taken to give effect to the judgment”. The Charter also provides for other measures in the nature of economic sanctions or severance of diplomatic relations, but those are unlikely to follow now owing to China, a permanent member of the UNSC, openly supporting Pakistan. In fact, post the revocation of Article 370, when Pakistan raised the Kashmir issue before the UNSC, it received China’s support.
But interestingly on the Jadhav case, even the Chinese appointee to the ICJ, who is also the Court’s Vice-President, voted in India’s favour. This poses a remarkable situation because what lies here is more than just diplomatic alliances. It concerns the supremacy and judicial sanctity of the ICJ and consequently the rule of law. Resultantly, on the facts of the Jadhav case and the unanimous nature of the ICJ verdict, Pakistan will find it tough to sustain any defence before the UNSC should India go that way. Time is clearly of essence with Mr. Jadhav’s life in the balance; India needs to act swiftly. This may be time to also remind ourselves and the international community that “the law isn’t what’s written; it’s what’s enforced.”
Satvik Varma is a litigation counsel and corporate attorney based in New Delhi
