The theory of ‘Positivism’ is one of the bases of International Law which says that the law is what exists as contrast to the law that ought to be. It relies on the actual practice of the States and declares that the will of State is the main source of International law, the validity of which lies on the fact that the States have consented to them. The concept of the will of nation was first propounded by the German philosopher Hegel. It was developed by the Italian Jurist Anzilotti according to whom the pacta sunt servanda (agreements must be kept) is the supreme principle of International Law. This principle is enshrined in Article 26 of the Vienna Convention on the Law of Treaties, 1969. It provides, “Every Treaty in force is binding upon the parties to it and must be performed by them in good faith”. The basis to the international adjudication is the consent of the parties to the dispute. This consent gives rise to certain obligations of a legal character to comply with the judgments and refusal to the same is ipso facto a breach of international legal obligations.
The first universal affirmation of these propositions in modem history was in Article 2 (2) of the UN Charter. It reads, “All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter”. One of these fundamental obligations is the obligation to carry out the judgments of the International Court of Justice (ICJ) under Article 94 (1) of the UN Charter, which stipulates that “Each Member of the United Nations undertakes to comply with the decisions of the ICJ in any case to which it is a party”. The phraseology of this provision contains a treaty stipulation underpinning the obligations already placed upon the States concerned by a more general application of the principle of pacta sunt servanda.
Pakistan in the Kulbhusan Jadhav case did not refuse the consent to the adjudication by ICJ in this dispute. The jurisdiction of the ICJ is based on the consent of sovereign States under Articles 35, 36 or 37 of the Statute of the Court. In legal doctrine, it is axiomatic that a consensual reference to international judicial bodies implies that a judicial decision is binding upon the parties to the litigation and consequently must be carried out in good faith. Pakistan had set up its argument that the ICJ does not have the jurisdiction on this case in view of Article (vi) of the 2008 agreement between India and Pakistan regarding counselor access which says “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merit”.
The Indian plea was that the standard for determining need not satisfy itself, while granting provisional measures, that it has jurisdiction. Indian counsel Harish Salve cited numerous cases on compulsory jurisdiction of ICJ and multiplicity of agreements/ conventions under which compulsory jurisdiction can be invoked. Bilateral agreement on Consular Access between India and Pakistan entered into in 2008 was stated to be irrelevant in this instant case. India does not rely on this agreement and does not need to. It relies solely on the Vienna Convention. Pakistan said it would consider granting consular access if India assists in investigation. This was countered by India as an untenable position under the Convention.
In the core of ICJ jurisprudence, the bilateral agreements cannot be interpreted to supercede the obligations inder international treaties. As such the strength of Vienna Convention blunted the Pakistan’s claim based on 2008 bilateral agreement. India and Pakistan have been signatories to the Vienna Convention since 1977.
The ICJ thus ordered “Pakistan shall take all measures to ensure that Jadhav is not hanged until a final decision by the court…..The circumstances of his arrest are in dispute… India should have been given consular access as per Vienna Convention”.
The ICJ also decided that, until it has given its final decision, it shall remain seized of the matters which form the subject matter of this order”. Asserting its jurisdiction over the case, the ICJ backed India’s contention that there has been a violation of the Vienna Convention on Consular Relations as New Delhi’s requests for consular access to its national had been denied 16 times. The ICJ found that all the ingredients to determine whether the Court should grant provisional measures were fulfilled. It stated that the rights claimed by India were plausible, that there was a link between the rights asked for and the provisional measures, and that there was a risk of irreparable prejudice being caused if the Court did not interfere, given Jadhav’s situation. The ICJ also determined that it had jurisdiction to invoke its power under Article 74. However, it clarified that the decision in no way prejudges the jurisdiction of the Court to decide on merits of the case.
Now the main question comes whether Pakistan will abide by the ICJ provisional measures?
There have been some reservations in past on the enforceability of the orders of provisional measures of the Court. This matter was rendered an convincing interpretation by the Court in the year 2001 when it held in the LaGrand case that orders of provisional measures indicated by the ICJ under Article 41 of the Statute are binding and consequently subject to enforcement. As per Article 41 (2) of the Statute of ICJ, “notice of the measures suggested shall forthwith be given to the parties and to the Security Council”. The Court also may under Article 78 of the Rules “request information from the parties on any matter connected with the implementation of any provisional measures it has indicated”. These provisions not only represent moral and political pressures but also are supplementary means indicating the inherent authority of the Court’s orders.
The principal enforcement machinery of judicial decisions of the ICJ is conferred on the Security Council under Article 94 (2) of the U.N Charter, which provides, “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give to the judgment”. Nevertheless, Article 94 of the UN Charter itself provides no exclusive authority for the Security Council to be the ultimate and sole enforcer of the ICJ decisions. There is no straightforward and independent enforcement means of international obligations especially those derived from international judicial decisions. Furthermore, if India moves to Security Council for enforcement of the ICJ decision, China is sure to veto that. Even if there has been an unanimity, there cannot be any joint action by Security Council unless there is a grave danger to peace and security. There is no instance of any joint action by the Security Council on the issue of enforcement of ICJ orders. The ICJ may render various types of judgments and each one may require a particular form of enforcement mechanism that is not necessarily available or effective within other means or mechanisms of enforcement.
The role of self-help and countermeasures remains arguably an ultimate means of enforcement in international law. This in simpler terms means the diplomatic and economic clout of a nation. Here is the stage when India has an unbeatable edge over Pakistan. India can coerce and set up a quid pro quo with Pakistan to ensure the enforcement of the ICJ judgment. In any event, self-help and countermeasures do not in themselves provide an adequate remedy for the injured State and they do not sufficiently fulfill the deficiency of enforcement of public international law in general. These self-help and counter measures have been said to be designed for influential States and India will have to prove that it is one of them in today’s world .
India, under the present circumstances, must wield its international standing to force Pakistan to comply with the ICJ orders lest its image of a rogue nation will be even more firmly established among the comity of civilized countries. A notable point is whether the Pakistani Army can continue contest this case in ICJ? The denial to counselor access to Kulbhushan Jadahav was the Pakistani Army insistence which failed them at the ICJ. But if the Pakistani Army agrees to counselor access, the cob-web of the uncorroborated confession of Kulbhushan Jadhav under military captivity will tear apart and entire sham of the so called trial will demolish. This is a catch 22 situation for Pakistani establishment. The case has been badly messed up by the Pakistani Army. Their plea in ICJ included a deplorable declaration that an army field officer with legal background was given to help Kubhushan Jadhav to fight his case. It was such a disgraceful admission of the violation of fundamental human rights whereby every accused is entitled to be defended by an attorney of his choice.
It is true that no appeal can be preferred against the verdict of a Pakistani Court- civil or military, in the ICJ. The ICJ can only see whether the trial was conducted as per the internationally acceptable Rules of Law and fair play. The real battle will have to be fought in Pakistan’s Supreme Court and the provisional measures in the mean time by ICJ has given a breather and is only the first step towards that.