Kulbhushan Jadhav case: What if Pakistan remains adamant even after the ICJ ruling?

Three days after it heard New Delhi's plea to suspend the death sentence awarded to former Indian naval officer Kulbushhan Jadhav by a Pakistani military court, the International Court of Justice (ICJ) today overruled Pakistan's stance and said India was entitled to seek consular access to Jadhav.

It ruled that Pakistan could not execute Jadhav till the final decisions of the court and Pakistan should inform the court of all the measures taken.

In a huge setback to Pakistan, the ICJ ruled that the Jadhav case indeed fell in the jurisdiction of the world court. Pakistan had claimed the Vienna Convention did not apply to a “spy” involved in terror activities and said India was using the world court as a stage for “political theatre”.

India had argued that Pakistan's arguments on Kulbhushan Jadhav's case in the International Court of Justice (ICJ) were contradictory and inconsistent on facts and on legal aspects, failing to meet the points raised by Harish Salve for a stay on Jadhav's execution.

Pakistan keeps on saying that the Jadhav case does not fall in the jurisdiction of the ICJ because it knows the ICJ judgement cannot be enforced on Pakistan. At best, it will bring international embarrassment.

What will India do if Pakistan does not accept the judgement?
The only option before India will be to go to the security council.

What are the rules?
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 into the picture. It can compel the states to follow the court’s ruling. But there are several problems with this method of enforcement.

What are India's chances at the Security Council?
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 favour 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.