Kulbhushan Jadhav case: A long, hard court battle ahead

Delhi, IndiaUpdated: May 21, 2017, 02:47 PM IST
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File photo. Photograph:(Twitter)

By Agnisheik Chatterji

On May 18, the International Court of Justice asked Pakistan not to execute a retired Indian navy officer for "spying" and attempting to create trouble in the conflict-riven province of Balochistan before the final verdict is out.

An eleven-judge bench of the world court unanimously questioned the Pakistani military court's verdict as India was refused consular access to the "spy" named Kulbushan Jadhav.

The tribunal said that prima facie, Pakistan had ignored Article 36 of the Vienna Convention -- which provides countries the right to consular access.

The stay on Jadhav's execution forced Pakistan to go back to their drawing board while their neighbours let out a huge sigh of relief and its media tom-tommed about outsmarting Islamabad in the international court.

Though India has won the first round of the bout, a moral victory of sense, it should not count its chickens yet as it has all the ingredients of being a long-drawn 15-round slugfest in the world court.

To dampen India's spirits further, it won't be surprising if Pakistan flies in the face of the ICJ and decides to ignore the ruling.

And how can they do that? There has been a litany of cases where countries have cocked a snook at the UN's primary judicial organ over the last seven decades.

A defanged court

Sprawling, well-manicured lawns roll out in front of an opulent, neo-renaissance red-brick building to give the International Court of Justice a mystique of ultimate power and authority.

But the chambers' resplendence and its importance of being the world court notwithstanding, the ICJ has often withered under the onslaught of diplomatic brinkmanship and stubborn governments.

There are two key reasons the international tribunal sometimes is left powerless.
Firstly, the ICJ can do nothing if a country has not conceded to the court's jurisdiction.

Secondly, the ICJ is the last resort in the judicial hierarchy. An aggrieved party cannot appeal its verdict. That leads to several countries dismissing ICJ rulings.

One such case was when India defied ICJ's ruling in 1999.

A Pakistani military plane was shot down in the Indian air space, but New Delhi said the ICJ had no jurisdiction to settle a dispute between two Commonwealth countries -- an argument that was accepted by the world court.

In Jadhav's case too, Pakistan can very well cite the 1999 case to ignore ICJ's ruling.

There are other precedents too.

Most recently, China aggressively ignored the tribunal's stinging verdict on its territorial claims in the South China Sea. 

The ICJ had also claimed that China had breached Philippines' sovereign rights in those waters.

But Beijing outrightly rejected the 2016 ruling and vowed to bolster its claims over the South China Sea.

"China will take all necessary measures to protect its territorial sovereignty and maritime rights and interests," the ruling Communist Party's official People's Daily had said, days after the ICJ ruled against them.

In 2014, Japan defied the court's ruling that it should stop its whaling program in the Southern Ocean.

In 1986, the United States had similarly dismissed the tribunal's verdict, which asked Washington to pay reparations to Sandinistas.

One of the examples that will worry the Indians most is a 1982 case where two German citizens were executed by the United States even after the case went to the UN tribunal.

UNSC migraine

Further, the permanent members of the UN Security Council -- the US, UK, France, Russia and China -- are tasked to enforce the court's verdict. But even if one of the members does not agree with the court order, the UNSC cannot enforce the injunction.

From the outside -- and though it is merely hypothetical as of now -- if China vetoes the verdict, like they have repeatedly blocked India's request in the UN to list Jaish-e-Mohammed chief Masood Azhar as terrorist, the UNSC will be unable to put pressure on Pakistan to obey the final verdict.

Pakistan will keep a close eye on exploring this option as they have an increasingly growing relations with China.

Lengthy trials 

The other problem India needs to counter is the court's notoriously ponderous ways to decide a case.

The ICJ completes only two to three cases a year.

There have also been times when it has taken almost a decade to decide a case, just like it did in the Qatar vs Bahrain territorial dispute case.

And in Jadhav's case, it is possible that the trial will drag on, given the shadowy nature of the entire episode that has further worsened an already-strained relation between India and Pakistan.

Yes, India has gained the moral ground and maybe a battle, but the proverbial war isn't over yet.

It's no doom and gloom for Pakistan either. The case is still in its nascent stage and they will hope they have sufficient evidence to prove that Jadhav was indeed an Indian agent operating to "destablise" Pakistan.