According to experts, even if the provisional measures of International Court Of Justice today comes in favour of India, Pakistan could still go ahead with the execution of Kulbhushan Jadhav, says Supreme Court lawyers Sanjay Hegde and Pranjal Kishore.
Pakistan could still go ahead with the execution of Kulbhushan Jadhav, write Supreme Court lawyers Sanjay Hegde and Pranjal Kishore.
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.
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.
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.
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 has 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.