Even favourable ruling by ICJ today may not save Kulbhushan Jadhav: Experts

ICJ will pronounce its ruling on provisional measures in the Jadhav case at noon today

Even if the provisional measures of the International Court of Justice (ICJ) are in India's favour today, Pakistan could still go ahead with the execution of Kulbhushan Jadhav, write Supreme Court lawyers Sanjay Hegde and Pranjal Kishore for the Business Standard. 

The ICJ will pronounce its verdict on the Kulbhushan Jadhav case today at 3.30 pm IST, just 10 days after India approached it demanding immediate suspension of the death sentence given to the former Indian Navy officer by a Pakistan military court. (Read more)

Hegde and Kishore argue that the ICJ proceedings are, at best, a legal forum for declarations of legitimacy, adding that international law is still largely “a law without sanctions”. 

In fact, according to the two experts, an order on provisional measures will only be the beginning of a longer journey which will entail long drawn proceedings on the merits of the case.

Pakistan can still execute Jadhav

While, according to reports, the Centre believes that the ICJ will rule in India's favour in today's verdict, past precedence is such cases shows that it might not be enough to save Jadhav. (Read more)

On May 8, a month after the announcement of Jadhav's death penalty, India instituted proceedings at the ICJ. It alleged “egregious violations” of the Vienna Convention, specifically Article 36 thereof. India also filed a ‘Request for the Indication of Provisional Measures’, pursuant to Article 41 of the ICJ Statute and Articles 73, 74 and 75 of the Rules of Court. It was prayed that the Court issue directions to the Government of Pakistan to ensure that Jadhav is not executed, pending the Court's final decision. 

On Monday, India and Pakistan crossed swords at the ICJ over Jadhav's case when the court heard oral arguments (limited to the provisional measures) on short notice. During the proceedings, New Delhi demanded the immediate suspension of Jadhav's death sentence, while Islamabad called India's application "unnecessary" and "misconceived".  

As reported earlier, legal Arguments for India were led by Harish Salve. India, as Hegde and Kishore explain, relied on the Vienna Convention and its Optional Protocol concerning Compulsory Settlement of Disputes as the basis for establishing the jurisdiction of the ICJ. Many precedents were cited in order to substantiate India’s claims regarding: Principles for indication of provisional measures; prima facie case as to the jurisdiction of the Court to entertain India’s Application; prima facie case of violation of the Vienna Convention on Consular Relations, 1963; and nature of the provisional measures sought.

Whichever way the ruling goes, according to the two experts, who have called reportage of ICJ issuing a stay on Jadhav's execution "inaccurate", Pakistan can, even now, execute Jadhav. 

Furthermore, Hegde and Kishore argue that even if provisional measures are granted in India’s favour, Pakistan could arguably still go ahead with Jadhav's execution.

Indeed, as the two experts explain, none of the cases alleging a violation of the Vienna Convention have resulted in effective relief to the accused therein. They add that in the last twenty years, three cases relating to violation of the Vienna Convention have been brought before the ICJ. All three have been against the US. All three have involved situations in which the detaining authorities failed to inform foreign nationals, convicted of crimes, about the right to consular access. However, as the experts point out, in all three cases, executions were carried out, despite the rulings of the ICJ.

Here is what happened in the three cases: 

1) In the ‘Breard Case’ (Paraguay v United States), the Court had granted provisional measures in favour of Paraguay. However, despite the Court’s order, the execution was carried out. Paraguay discontinued the proceedings later and the Court was thus unable to deliver a final judgment.

2) The same happened in the ‘LeGrand Case’ (Germany v United States). However, this time, the ICJ in its Judgment found the United States guilty of violating the Convention as well as its orders. The case is significant because this was the first instance of the International Court holding that its interim orders were also binding.

3) In the ‘Avena Case’ (Mexico v. United States), provisional orders were once again passed directing the “review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention.” However, the United States Supreme Court held that the order of the ICJ was not binding unless Congress has enacted statutes implementing it or unless the treaty itself is "self-executing."

All three decisions referred to were rendered in cases where the United States was a party. However, Hegde and Kishore explain that these are legally distinguishable, as Pakistan does not follow the federal structure that the United States does. Significantly, they add, all three decisions have been relied upon by India before the International Court.

Concluding their arguments, the experts state that whatever be the ultimate outcome of the case, effective relief for Jadhav, is more likely to be secured through diplomatic negotiations and through domestic processes.