The Mirage of Binding ICJ Judgments
A few days ago, Harish Salve, India’s lead counsel on Commander Kulbushan Jadhav’s case at the International Court of Justice, said that the ICJ’s interim order was binding on Pakistan and any defiance of the said order would invite serious repercussions by the UN Security Council.
While it is true that the UN Charter gives the Security Council the power to give effect to an ICJ judgment under Article 94, paragraph 2, if the party concerned, makes a request, there have been a few occasions when this article was invoked: the Nicaragua case, the Boundary Dispute between Honduras and El Salvador, the Anglo-Iranian Oil Company case, and the Bosnia-Herzegovina case against Yugoslavia.
In practice, however, states have not been subject to Security Council sanctions for non-compliance with ICJ orders.
Let us first examine article 94, paragraph 2 of the UN Charter. It states, “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 effect to the judgment.” Prima facie, it seems to provide a potential cohesion between the ICJ and Security Council. However, a close reading of Article 94 (2) makes it abundantly clear that the Security Council “may” exercise its powers “if it deems necessary”- expressly indicating that the said provision is absolutely subject to Security Council’s discretion.
The Security Council is one of the six principal organs of the United Nations, which is responsible for the maintenance of international peace and security under Article 24 of the UN Charter. It enjoys a wide range of powers but within the ambit of the UN Charter. Article 24(2) explicitly limits Security Council action, which states, “The Security Council shall act in accordance with the Purposes and Principles of the United Nations.” On this subject, a former judge of the ICJ, Muhammad Bedjaoui argues that the Security Council cannot act outside the boundaries of international law. Hence, the scope of the resolutions it passes is limited and has been defined in chapters VI and VII of the UN Charter.
The resolutions adopted under Chapter VI seek to promote negotiated settlements amongst states. Interestingly, it is this very chapter under which the Security Council has adopted 15 resolutions on Kashmir, resolutions that India has consistently been referring to as “non-binding and ineffective”. Therefore, if a resolution were ever passed in favour of Commander Jadhav under this chapter and India tried to have it enforced, it would be merely a demonstration of its hypocrisy. In fact, it is highly unlikely that India would ever want such a thing, as this would jeopardise Delhi’s consistent international position on Security Council resolutions over the Kashmir dispute. One cannot blow hot and cold together.
Whereas, if a resolution was adopted in favour of Kulbushan under Chapter VII of the UN Charter then the UN Security Council would need to ascertain a certain threshold at the outset. Article 39 of the UN Charter obligates on the Security Council that it “shall determine” one of the three situations whether a threat to, or breach of the peace, or act of aggression, exists that would justify its intervention under Chapter VII.
Even though, the analysis of different cases of intervention throughout the years has suggested that the way, in which the Security Council has justified the intervention under the Chapter VII, has not been static, but changing in nature.
However, in light of the previous resolutions, one thing, which with utmost surety could be said, is that an act of breach by a state must be of a magnitude that tantamounts to some degree of physical threat “against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations” to justify the implementation of the Chapter VII powers by the Security Council. It was the result of this perception of physical “threat” to peace and “security” that had prepared the moral ground for the Security Council to authorize the use of force against Afghanistan, in Resolution 1386, adopted unanimously on 20 December 2001; the Council stated that such acts, like any act of international terrorism, constitute “a threat to international peace and security”.
Hence, an act posing a physical ‘threat to peace’ is a bare minimum prerequisite to invoking the Security Council jurisdiction. Kulbushan’s execution, however, could not be considered a threat to ‘international peace or security’ by any standards of the Security Council. Therefore, it is very unlikely that the Security Council would adopt a resolution against the execution of an individual, who was involved in criminal espionage and terrorism.
Even if, hypothetically speaking, the ICJ renders an adverse order against Pakistan’s narrative, and in response, Pakistan resists such a ruling; India could seek redress at the UN Security Council under Article 94 (2) of the UN Charter. But it would take only one vote of a single permanent member, say, China to frustrate India’s efforts as per Article 27 (3) of the UN Charter that states, “Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members” which means that any permanent member of the Security Council can exercise “veto” powers and block any resolution of their counterparts, even if the majority vote to the contrary.
Hence, instead of these loud, intrusive and intellectually vacuous thoughts of taking Pakistan to the Security Council, India must explain the curious case of two passports, belonging to the same person, who had been using a fake identity and masquerading as a Muslim.
In the meanwhile, Pakistan should forcefully defend its position at all international forums, including the ICJ. The dossier on Kulbushan Jadhav that was given to the UN secretary general should be translated into all the major languages of the world and immediately be dispatched to permanent members of the Security Council. Secondly, Pakistan’s diplomatic missions abroad should actively take part in hosting public awareness events and employ a strategy to dismantle India’s spin doctrine on this issue and unmask the footprints of state-sponsored terrorist activities of New Delhi through its proxies.
Previously published in The Express Tribune and republished here with permission.
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