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What if Pakistan doesn’t comply with ICJ order in Kulbhushan Jadhav case

The Hague based International Court of Justice (ICJ) has ordered Pakistan to stay the execution of former Indian Navy officer Kulbhushan Jadhav until further notice. Jadhav was given death sentence by a Pakistani military court on concocted charges of espionage and sabotage activities in Karachi.

India is celebrating the ICJ order calling it a “big diplomatic victory”. Undoubtedly it is. But there is nothing much to celebrate about the order.

As things stand now, the ICJ has not set aside Kulbhushan Jadhav sentencing all together and he is still in Pakistan’s custody. But simply speaking, the ICJ order is an essential first step forward in the path of justice for Kulbhushan. India can only breathe a sigh of relief for now. But there is a long way to go and a long legal process to come through.

Obviously, the ICJ order is a firm vindication of India’s stand. At the same time it has come as a serious indictment of Pakistan’s judicial system.

India sought consular access for Jadhav 15 times, but Pakistan has turned down India’s request every time. It could be noted that Pakistan had kidnapped the 46-year-old former Indian Navy officer from Iran where he was involved in business activities after retiring from the service. But Pakistan is blatantly lying claiming that it had arrested Jadhav from Balochistan on March 3, 2016. India was not informed of Jadhav’s detention until long after his arrest.

Now Pakistan says that the ICJ order has not changed the status of Kulbhushan Jadhav case in any manner. Pakistan foreign office has made it clear that it can’t accept the ICJ’s jurisdiction in matters of “internal security matter”.

“If any country says I don’t accept the ruling… it is the country putting itself in a position that it is guilty of such a heinous crime violating all canons of international norms,” Defence Minister Arun Jaitley told reporters in Srinagar.

If Pakistan does not abide by the ICJ order, it would be in clear violation of Vienna Convention on Consular Relations. It is pertinent to mention that both India and Pakistan are signatories to the optional protocol of the Vienna convention on consular relations (VCCR). The protocol states that any dispute arising out of the interpretation or application of VCCR shall lie within the jurisdiction of the ICJ.

Even as legal experts suggest that the final order of the ICJ will ultimately go in favour of India, the ICJ has its own limitations and it does not have the statutory power to execute an order.

It could be noted that it was the US which ignored the ICJ orders in two precedents with Germany and Paraguay. But Pakistan is not the US. But as a rogue state, it may have the audacity to ignore the ICJ.

“The ICJ does not have any agency to enforce its order, It can’t compel,” said senior Supreme Court lawyer and noted legal luminary KTS Tulsi while speaking to Opindia.com.

If Pakistan defies the ICJ order, then what options India has. We can move to the United Nations Security Council to seek justice for Kulbhushan. The Article 94 of the Chapter XIV of the International Court of Justice reads, “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”

But Tulsi said, “The ICJ can refer the matter to the Security Council if the order is defied. Now, the question is how to enforce the order? There are only two means of enforcement by the ICJ to the Security Council. In Security Council, they can either impose economic sanctions or impose military sanctions. But that decision can also be vetoed by one of superpowers who have the veto power. If China chooses to veto, it would a fait accompli.”

So, in order to set free Kulbhushan, India has to handle the matter very diplomatically at every step.

Ayodhra Ram Mandir special coverage by OpIndia

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Saswat Panigrahi
Saswat Panigrahi
Political writer, policy observer.

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