Column: The Road ahead on Kulbhushan Jadhav

Bar & Bench October 10 2019
kulbhushan Jadhav

Satvik Varma

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 Jadhav’s release was rejected, the ICJ noted, as imperative, its direction to Pakistan to review and reconsider the conviction and sentence of 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.” Pakistan was directed to inform Jadhav forthwith about his rights and to arrange for his legal representation, and further that India be given consular access to Jadhav. 

Six weeks after the verdict, for the first time, Indian diplomatic officials were granted consular access to Jadhav early September. Post this two-hour interaction, the Ministry of External Affairs stated that “Jadhav appeared to be under extreme pressure to parrot a false narrative to bolster Pakistan’s untenable claims”, most likely relating to Jadhav’s purported confessional statement.

Since this first round of consular access, India’s repeated requests for a follow-on session to seek the full implementation of the ICJ Judgment have been snubbed - perhaps owing to the breakdown in bilateral ties between Islamabad and New Delhi over our Government’s decision in Jammu & Kashmir. And while a diplomatic and negotiated resolution is preferable, the same isn’t seeming 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 which we must potentially explore at the appropriate time. 

Notably, judgments of the ICJ are final and without appeal. The ICJ itself has the exclusive authority over any dispute relating to the meaning and scope of its judgments. The United Nations Charter (Charter) mandates that each Member State of the United Nations Organisation should undertake to comply with decisions of the ICJ. So, if Pakistan fails to perform the obligations incumbent upon it under the July Judgment, then India has recourse to the United Nations Security Council under the Charter. At such initiation, if the Security Council 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 Security Council, and the defaulting State may also seek to advance arguments questioning the validity of the ICJ verdict. 

This process was tested many years ago in the case concerning “Military and Paramilitary Activities in and against Nicaragua.” At the time, Nicaragua had a judgment in its favour. They called upon the United States to comply with it, and upon its failure, approached the Security Council. Accordingly, a draft resolution was adopted and, as a permanent member, United States expectedly voted against it.  Nicaragua then approached the General Assembly even though, unlike the Security Council, General Assembly is not specifically vested with the power to deal with non-compliance and non-enforcement of the decisions of the ICJ. 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 ninety-four votes to three, with forty-seven abstentions. The objective being to emphasise on members not to defeat the purpose of the Charter and its obligations.  

And while neither the Security Council nor the General Assembly will ever interfere with the judicial authority of the ICJ, the Security Council may “make recommendations or decide upon measures to be taken to give effect to the judgment”; as eventually avoiding catastrophic conflicts between Member States is amongst the foremost mandates for which the UN was set up. The Charter also provides for other measures in the nature of economic sanctions or severance of diplomatic relations, but those are unlikely to follow in the present circumstances owing to China, being a permanent member of the Security Council, openly supporting Pakistan. 

In fact, post the revocation of Article 370, when Pakistan raised the Kashmir issue before the Security Council, which for the first time in four decades discussed Kashmir in a closed-door meeting, Pakistan received China’s support. But interestingly on the Jadhav case, even the Chinese appointee to the ICJ, who is also the Court’s current Vice-President, voted in India’s favour. Which 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 Security Council should India go that way. Time is clearly of the essence with Jadhav’s life on the line and we need to act swiftly. This may be time to also remind ourselves, as also the international community that eventually, “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. A graduate of Harvard Law School, he’s licensed to practice both in India and New York.