PRANNV DHAWAN July 27,2019
THE final verdict of the International Court of Justice, the apex judicial body of the United Nations, has given a glimmer of hope for the just and humane treatment of retired Navy officer Kulbhushan Jadhav.
While the Indian diplomatic and legal leadership is justifiably lauding it as a ‘decisive’ geopolitical triumph that has resulted from concerted and coherent team effort, the verdict has also become a harbinger of hope and sanity for the multitudes of prisoners whose lives have been on the brink of uncertainty due to the contested terrain of India-Pakistan animosity.
Even though there have been several positive developments in the recent past where India and Pakistan have repatriated prisoners as a goodwill measure, this judgment has the potential to foreground the human rights of these prisoners under international law who often become subjects of the pernicious loop of competitive jingoism. Beyond the cries of victory, the real winner to emerge from the International Court of Justice’s decision is the very idea of international law.
Earlier this week, the court decided in India’s favour in the case of India vs Pakistan. Only one Judge, Justice Gillani, ad hoc Judge dissented- the other 15 agreed with most of India’s arguments in principle. The court ruled that it had jurisdiction in the case, and additionally that the Republic of Pakistan violated the Vienna Convention on Consular Relations. The court opined, “the court is of the view that Pakistan is under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Vienna Convention. Consequently, Pakistan must inform Mr Jadhav without further delay of his rights under Article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation…”.
The ICJ has also obligated Pakistan to undertake an “effective review and reconsideration” of the conviction and sentence of Jadhav through means of its choosing, which could include enacting an appropriate legislation. However, ICJ has emphasised that this review shall be effective only if Pakistan gives full weight to the adverse consequences and prejudices that have resulted from Pakistan’s non-compliance of Article 36 of VCCR.
Enforceability of ICJ’s decisions
The ICJ was established to settle international legal disputes. The court’s decisions are binding on member states but concerns about their practical enforceability have been raised. A study about the enforceability of the final verdicts concluded that in recent years, while there was hardly any direct defiance of the ICJ’s judgements, a few of them met with less compliance than others due to complicated realpolitiks.
The ball, therefore, is now in Pakistan’s court as to how it implements the ICJ ruling both in letter and spirit. Under Article 94(1) of the United Nations Charter, Pakistan is under an obligation to comply with this ruling.
Regardless of how heinous the crime every defendant has the right to legal counsel. Pakistan, similarly, must ensure this right is given to the accused. The trial should also be fair and follow well-established principles of international law and convention.
Additionally, the Joint Judicial Committee on Prisoners should be politically and diplomatically empowered to provide for a comprehensive charter of rights for prisoners and protocols to be enforced on domestic law enforcement institutions. The bilateral dialogue must highlight the urgent need to safeguard the human rights of all individuals so that both India and Pakistan can emerge as law-abiding and civilised countries among the comity of nations.
Prannv Dhawan is a student of National Law School of India University. He is a senior member of the Council of International Relations and International Law and has volunteered with CHRI Prisoners Rights initiative.
The article appeared in the Leaflet India on 27 July 2019