OPINION

Can Pakistan seek a re-hearing?

News reports have emerged that Pakistan may seek a “re-hearing” of the Kulbhushan Jadhav case in which the International Court Justice (ICJ), as a provisional measure, has ordered a stay on his execution.

Pakistan may apply to the ICJ under Article 76 of the Rules of Court of 1978 for a revocation or modification of the court’s order.

This can be done any time before the final judgment is given. However, and most importantly, it has to satisfy the ICJ that a “change in the situation” has occurred that necessitates such a revocation or modification.

Not routine

The ICJ does not order provisional measures as a matter of routine, but only in extreme cases. The order of provisional measures is resorted to only when the ICJ judges, in their sole discretion, conclude that not doing so would cause grave prejudice and irreparable harm to the rights of the country which has approached it.

Article 76

In short, the “change in the situation” should be of such magnitude that it would overcome the situation of “irreparable prejudice and urgency” that compelled the ICJ to order provisional measures under Article 41. This makes Article 76 quite a rare remedy.

In the Jadhav case, the ICJ justified its provisional measure — staying his execution — by observing that “the mere fact that Mr. Jadhav is under such a sentence (death penalty) and might therefore be executed is sufficient to demonstrate the existence of such a risk”.

His execution by Pakistan would cause “irreparable prejudice” to India’s case on merits in the ICJ, the court observed.

Added to this, the court said there was “considerable uncertainty” as Pakistan had given “no assurance that Mr. Jadhav will not be executed before the court has rendered its final decision. In those circumstances, the court is satisfied that there is urgency in the present case”.

Besides, Pakistan will have to keep in mind the “binding effect” of provisional measures over any party to whom they are addressed.

Past instances

Past instances of countries approaching the ICJ for revocation or modification of its provisional measures orders are not encouraging for Pakistan. In July 2013, the ICJ, in the case concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), refused relief on the ground by simply concluding that “circumstances presented by the countries were not such as to require the exercise of power to modify” its earlier order of provisional measures.

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