Explainer: The International Court of Justice may not be able to guarantee Jadhav’s life by itself

India on Wednesday said it had successfully obtained a stay against the execution of former Indian Navy officer Kulbhushan Jadhav, who was arrested by Pakistan on March 3, 2016 on charges of spying and was subsequently sentenced to death by a martial court in April.

India has maintained that Pakistani charges against Jadhav, that he indulged in espionage for the Research and Analysis Wing, were a lie and that he had not received proper legal representation when he was sentenced to death. The Ministry of External Affairs has said that Jadhav was kidnapped in Iran by Pakistani forces when he was on a business engagement after retiring from the Navy.

As a last-ditch effort to save his life, India has now approached the International Court of Justice. But as we would see in this explainer, even a favourable order from the court may not be enough to save his life, given the complex equations that exist in the United Nations and India’s lack of leverage in the United Nations Security Council.

What is the International Court of Justice?

Located in The Hague in Netherlands, the International Court of Justice is the primary judicial organ of the United Nations. Like the UN, the court is the creation of the circumstances that prevailed at the end of the second world war in 1945 when it was deemed necessary to create a body that would adjudicate on certain matters involving two or more member states. All 193 members of the UN are automatically members of the International Court of Justice. The court has 15 judges, drawn from different countries. In the current batch with its tenure till 2018, the lone Indian judge is Dalveer Bhandari, a former judge of the Supreme Court.

What is the ICJ’s jurisdiction?

There are two types of matters that the ICJ deals with: Contentious issues and advisory opinions. India’s application in the Jadhav case falls under the contentious issues category, where the ICJ is called upon to adjudicate on adversarial disputes between two member states.

There are two ways the ICJ could intervene. Either the member states agree to its jurisdiction and come before it for adjudication on a specific matter, or disputes which fall under some international convention which makes the ICJ an arbiter. In the Jadhav case, India has invoked the Vienna Convention of 1961 to push the case of Jadhav.

Apart from being automatic members of the ICJ due to their membership in the UN, India and Pakistan expressively consented to ICJ’s jurisdiction in 1974 and 1960 respectively.

What is India’s case before the ICJ?

India has approached the ICJ accusing Pakistan of failing to provide consular access to Jadhav, which it believes undermined the very process of his trial as he was not offered proper legal aid. This, India feels, is a clear violation of the Vienna Convention of Consular Relations. India made 16 requests for such access to Pakistan, which have all been denied. It has also accused Pakistan of not informing it about Jadhav’s arrest till very late into the trial.

Are ICJ’s  orders binding?

Since India and Pakistan have consented to the ICJ’s jurisdiction, the orders passed by the ICJ are deemed to be binding. However, there have been instances in the past where the ICJ’s rulings have been violated or nullified.

A serious dispute arose in the late 1980s and early 1990s on the separation of powers between the UN Security Council and the ICJ.

In 1986, in a historical ruling, the ICJ issued orders against United States in a petition filed by Nicaragua, which alleged that America had waged a covert war against it by supporting a rebellion to destabilise the country. The ICJ took Nicaragua’s side and ordered reparations.

The United States, in response, cancelled its declaration of the ICJ’s jurisdiction. It then went to the UN Security Council against the ICJ order and succeeded.

Later, in 1992, the court took up a petition filed by Libya that the United States and the United Kingdom infringed upon its rights by imposing unreasonable economic sanctions. The sanctions were in response to the 1988 Lockerbie bombing in which the Pan Am Flight 103 was destroyed by a bomb, killing over 240 passengers. Thirty five of them were American students. The accused in the case were Libyans.

The ICJ refused to grant remedy to Libya though it recognised its petition as legitimate. This was because it had no jurisdiction to overrule decisions of the UN Security Council, which ratified the trade sanctions.

Can Security Council intervene in the Jadhav case?

Assuming India gets a positive order from the ICJ that nullifies the death penalty given to Jadhav, it may still have to contend with the choppy waters of the UN Security Council. There are currently five permanent members in the council: China, France, Russia, United Kingdom and United States. Only permanent members have veto powers, which means they could effectively block a resolution from being carried out.

If Pakistan decides to go to the Security Council against an ICJ order, much would depend on what position the permanent members take. With China in the council, India may find it hard to pass the order through.

Further, an adverse order could be impossible for Pakistan to comply with given its internal politics. The death penalty was awarded by a martial court under the Pakistan Army, which wields great influence on the country’s institutions. In the past, civilian governments have been removed by military leaders. Therefore, it would be hard to expect the civilian government to go against a ruling of an army tribunal by citing international obligations – and that applies to the stay order as well. So diplomatic and other back-channel negotiations will still be key.

When can we expect a ruling?

In the past, the ICJ’s proceedings on contentious issues have taken months, and sometimes years, to complete. India and Pakistan will now have to submit their written arguments before the court and then proceed to oral arguments after the court fixes a date for the hearing. After all the material is placed before the court, the judges will privately deliberate and issue their ruling.