The Silver Lining: Jadhav, ICJ and the Way Forward
   18-Jul-2019
 
 
On 17th July, the International Court of Justice declared that Pakistan breached its obligations under the Vienna Convention on Consular Relations by denying the rights of consular access and notification to Kulbhushan Jadhav. The Court further condemned Pakistan’s conduct in depriving India of the right to render the assistance to Jadhav provided for by the Vienna Convention. For these egregious violations of the international law, the Court ruled that Pakistan is under an obligation “to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention”.
 
 
 
Although these developments are welcoming, it remains to be seen how Pakistan would comply with the ICJ verdict. With a history of highly dubious and questionable conduct in Jadhav’s case, it would not be unlikely if Pakistan resorts to mischievous tactics of circumventing the ICJ Ruling and its obligations under international law. Added to this trepidation is the tumultuous state of affairs in Pakistan’s judiciary. It is common knowledge that Pakistan’s judicial system is anything but independent and impartial. Several reports of human rights violations have surfaced since military courts were empowered to try civilians in 2015. As these reports indicate, the opaque and secret trials conducted in these military courts have resulted in several convictions with more than 150 situations where death penalty was awarded.
 
 

 
 
In such a situation, it would be a test case for Pakistan to demonstrate its willingness to comply with the ICJ verdict. As Pakistan retains the freedom to choose means of review and reconsideration of Jadhav’s conviction, many people apprehend that Jadhav remains vulnerable as long as Pakistan retains this discretion. However, there are two important factors that may allay these apprehensions. First, under international law, the obligation of review and reconsideration is not unqualified and must be exercised for giving full effect to the purposes for which rights under Article 36 of the Vienna Convention are intended. Therefore, non-compliance with the ICJ verdict with an intention to suffocate Jadhav’s right of a fair trial might result in institution of another dispute before the ICJ. In such a contingency if Pakistan continues to defy its obligations under international law as reiterated by ICJ, in an appropriate case, India can seek for full repatriation and release of Jadhav. Most certainly, it would be a great political debacle for Pakistan to become witness to another international defeat before the ICJ. Second and most important factor is the lapse of the military court’s jurisdiction in April 2019 to try civilians. It would be interesting to watch Pakistan’s response to this development that is triggered by a change in their internal law. If Pakistan decides to review Jadhav’s conviction and sentence before the Military Tribunal itself, it would stand in violation of its own internal laws.
 
 
 
 
ICJ Verdict on Kulbhushan, Press Release 
 
 
On the political front, India can also approach the Security Council like Mexico did in the Avena’s Case, under Article 94(2) if Pakistan refuses to comply with the ICJ Ruling. In the past this remedy has not been very effective, as the ICJ has never used such powers to enforce an ICJ decision. However, mostly such futility can be attributed to the use of such remedy for enforcing an ICJ verdict against a permanent member of the United Nations — having the power to veto any sanctions that might follow in the aftermath of non-compliance. Therefore, Pakistan should tread with caution along these lines as not long ago India clearly demonstrated its hard power in the international sphere when Pakistan was forced to repatriate Wing Commander Abhinandan after the Balakot strikes. In any case, such measures should be adopted only in extreme situations owing to the political fallout of such measures and the intricate nature of international relations.
 
 
 
In the interregnum, India should promptly take all possible measures for ensuring that Jadhav is guaranteed a fair trial in Pakistan. With India having an upper hand and a host of measures at its disposal, it would be foolhardy for Pakistan to not cooperate with Indian authorities. Since the verdict has come out, Pakistani establishment seems to be rejoicing and chest thumping about its victory before the ICJ. Perhaps, Imran Khan’s responsibility for being answerable to the people of Pakistan (or ISI) might explain such zeal and hopeless politics. As initial steps, it should cease to indulge in the ubiquity of such obscure politics and take good faith measures for the implementation of the verdict.