Kulbhushan Jadhav: What if Pakistan refuses to follow International Court of Justice order?

NEW DELHI: International Court of Justice (ICJ), the principal judicial arm of the United Nations, on Tuesday stayed the death sentence of Indian national Kulbhushan Jadhav. Jadhav had been awarded death sentence by a Pakistani military court in April this year on charges of espionage, conducting subversive activities and waging a war against it.

The court, which is composed of 15 judges from as many countries, will now hear if Jadhav's rights were violated.

The Indian contention
India, represented by Senior Supreme Court lawyer Harish Salve, on Monday challenged Jadhav’s death sentence by invoking Article 36 of the Vienna Convention on Consular Relations which provides for consular access to foreign nationals.

India accused Pakistan of "egregious violations of the Vienna Convention on Consular Relations". It contended that Pakistan should have provided the consular officers access to the alleged Indian spy. India also contended that Pakistan failed to inform the accused of his rights in brazen defiance of elementary human rights of an accused.

But what if Pakistan doesn’t comply with the ICJ’s orders? What are the limitations of the court and what is the way forward?

What if Pakistan doesn’t comply?
Article 94 of the United Nations Charter states that all the members of the United Nations have to comply with the ICJ decisions in the cases in which they are parties. Both the countries have signed and ratified this.

There is also an 'Optional Protocol' to the Vienna Convention on Consular Relations for the compulsory settlement of disputes. Both India and Pakistan are parties to this protocol too.

The court judgments in the contentious cases are final and without appeal, though there is no way ICJ can enforce its decisions. This is where United Nations Security Council comes in to picture. It can compel the states to follow the court’s ruling. But there are several problems with this method of enforcement.

First, a judgement against one of the five permanent council members or its ally countries can be vetoed by that member. This happened in the Republic of Nicaragua vs The United States of America where the court decided in favor of Nicaragua and awarded reparations to Nicaragua. The US refused to participate in the proceedings and also blocked enforcement of the judgment by the United Nations Security Council.

China, a member of the Security Council, can veto the Jadhav case order in favour of Pakistan.

Second, the Security Council can always refuse to intervene and then there is no way to enforce the judgement.

Third, a coercive measure by the Security Council can be adopted only if international peace and security are at stake. The Security Council has never done that so far.