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A long battle ahead at UNSC before Kulbhushan Jadhav can be saved
Rohit Chandavarkar | Thursday, 18 May 2017 AT 09:21 PM IST
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The order given by International Court of Justice to Pakistan’s military court of staying the execution of Indian citizen Kulbhushan Jadhav is seen as a big victory for India and media channels are almost in the mood to celebrate this decision, however the battle is still on and a lot needs to go India’s way before India can call it a victory.

It’s becoming obvious that this matter will not go to the United Nations Security Council where it will be fought out. If some member of the council such as China uses its veto, it could spell trouble for India again.

The Hague court has said that Pakistan must ensure that Kulbhushan Jadhav is not executed until a final decision is taken on India’s appeal against his death sentence. The UN charter says ‘each member of UN undertakes to comply with the decision of the ICJ or International Court of Justice and ‘if” any party to a case fails to perform the obligations, the other party may have recourse to the Security Council’. The Security Council, it says, “may decide upon measures to be taken to give effect to the judgement”.

One odd part is that India’s national news channels are seen to be in a celebratory mood and are taking it for granted that things have gone India’s way. But a lot is yet to be sorted out. Senior Supreme Court lawyer Siddharth Luthra said while the judgement “cannot be enforced the way domestic court judgements can”, India could also ask for sanctions against Pakistan. “ICJ is a body where you go by consent. One of the issues Pakistan is seeking to raise is that we have not consented, so jurisdiction is an issue they are looking to challenge. Such judgements are binding when countries accept them to be binding. If Pak chooses to act in a rogue manner, India can take the matter to the Security Council”.

So the next obvious course is that the matter will go to Security Council. Pakistan, as expected, has refused to accept the stay issued by Hague court. If Pakistan says it will not implement the UN court ruling, India can go to Security Council and ask for sanctions against Pakistan for breach of the ICJ judgement. New Delhi could reconsider its diplomatic relations with Pakistan. Unlike a domestic judgement, like a ruling by Supreme Court, which has actions such as contempt or execution, this is by consent.

Therefore, while the judgement is important, it can’t be enforced the way domestic court judgements are enforced. Legal experts say that by going to the international court, India had ensured that there is exposure of a legal system, which does not provide justice to citizens of other countries, as in the case of Jadhav. India has achieved its point and made its mark at the moment. But it’s going to be a long battle before the final victory can be declared.

- ROHIT CHANDAVARKAR
 
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