How nations defied them

The onus of 'responsible' international behaviour is realistically self-mandated on nations as the mechanisms for enforcement are weak.

Nations have unique foundational narratives, governing instincts and moral scruples that drive them to respond varyingly to internatio­nal verdicts and advisories. The verdicts, advisories or opinions of the International Court of Justice at Hague, which adjudicates over international legal disputes are a test of the intrinsic morality of the sovereign, as the same gets tested by the way the affected nations internalises, rationalises and honours the same.

As the judicial branch of the United Nations, all 193 UN-member nations automatically become party to the court’s statutes – though, the element of mutual consent to resolve disputes through the ICJ intervention, affords moral implications on complying with the ultimate verdict, irrespective of favourability.

The complexities, intrigues and unsettled positions of the Indo-Pakistan saga have ensured that the ICJ has been invoked four times (including, the recent Kulbhushan Jadhav case where India obtained a stay against the execution orders, by the questionable Military Martial Court in Pakistan). Interestingly, while India initiated the recent proceeding by invoking the Vienna Conventions of 1961, the previous three cases before the ICJ were initiated by Pakistan.

The first was in 1971 when Pakistan alleged that India had violated the International Civil Aviation Convention and the International Air Services Transit Agreement (India’s initial appeal that Organisation’s Council had no jurisdiction to decide was dismissed in Pakistan’s favour — though, the matter was mutually dropped in 1976 after the creation of Bangladesh, as the issue of overflight became irrelevant).

Similarly, the second case involving the fate of 195 Pakistani Prisoners-of-War was again mutually withdrawn with the signing of the bilateral New Delhi Agreement in 1973 that encompassed the issue. However, it was the 1999 shooting down of the Pakistani Navy patrol and reconnaissance Atlantique plane over the Indian airspace, with 16 people on board, that made Pakistan seek reparations of $60 million in the ICJ for compensation to the victims’ families.

Soli Sorabjee, India’s then attorney general, won the day with the essential plea that the International Court had no jurisdiction on disputes covered by multilateral treaties or by disputes between India and the Commonwealth countries, besides the fact that Pakistan had violated a 1991 bilateral treaty prohibiting the flying combat planes within 10 km of each other’s airspace, including Air Defence Identification Zone.

The thumping endorsement of the bench decision, with a score of 14-2, was in favour of India — the two dissenting jud­ges were Awn Shawkat Al-Khasaw­neh from Jordan and Justice Syed Sharifuddin Pirzada (who along with India’s former SC judge B P Jeevan Reddy, co-opted into the bench as ad-hoc judges).
Pakistan’s frustrations in its first three failed attempts at the ICJ were accentuated by the fourth debacle in the Kulbhushan Jadhav case. Unsurprisingly, a jarring note of disrespect emanated from the official spokesperson of Pakistani Foreign Office Nafees Zakaria, who unequivocally stated, “Pakistan doesn’t accept ICJ’s jurisdiction in Jadhav’s case”, after the negative verdict.

Now, a glaring contrast to the Pakistani response to the recent ICJ judgement is the India-Bangladesh dispute regarding the delimitation of the maritime boundary. This five- year-long arbitration case under the UN Convention on Law of Sea (UNCLOS) resulted in the tribunal awarding Bangladesh 19,467 sq km of 25,602 sq km sea area of Bay of Bengal.

However, the unambiguously negative verdict against India did not manifest in any nationalistic bravado or refusal, ins­tead the Indian external affairs ministry spokesperson stated, “We are committed to abiding by the outcome of that pro­cess.” Adhering and respecting the binding nature of the ICJ orders, given the voluntary acceptance of allowing the case to be tried in the ICJ, is a logical expression and expectation of any ‘moral state.’

Like Pakistan, its ‘all-weather-friend’ China exhibited a similar instinct to that of Pakistan’s, when it lost an arbitration case against Philippines in 2016, where the Permanent Court of Arbitration rejected China’s claim to historic rights on the region and its creative interpretation of territorial limits via the ‘nine-dash-line’ approach.

Chinese President Xi Jinping then stated, “China will never accept any claim or action based on those awards”, eerily reminiscent of the recent Pakistani intransigence. The question of a ‘moral state’ were poked by the US State Department spokesman John Kirby who said, “The world is watching to see if China is really the global power it professes itself to be, and the responsible power that it professes itself to be.”

Legislative escape-vents
The onus of ‘responsible’ international behaviour is realistically self-mandated on nations as the mechanism for enforcement are essentially weak and susceptible to the subsequent angularities of the five UN Permanent Security Council members, who can veto any proposal. However, even countries like the US are often guilty of dishonouring ICJ verdicts owing to technicalities and legislative escape-vents that belie the spirit of legality and morality.

The restive perceptions between the US and some Latin American co­untries can be explained by the US’ frequent unwillingness to submit to the plenary authority of the ICJ, especially when the verdict in a dispute is adverse to US positions. The US brazenly refused to participate in the proceedings in the merits of the case initiated by Nicaragua in 1984 and later withdrew from compulsory jurisdiction — the optics of such irresponsible sovereign behaviour militate against efforts towards international justice.

Islamabad has its own political compulsions and existential intrigues that routinely vitiate against the expected standards of a ‘moral state’. The often interchangeable terms like ‘rogue nations’ (currently the US considers North Korea, Iran, Sudan and Syria), ‘pariah states’, ‘states of concern’ or ‘state sponsor of terrorism’ are typified by a certain irresponsible sovereign behaviour towards international law, undemocratic internal frameworks and dubious intents towards other nations. Herein, disrespecting an international verdict of an independent court of law is a sure-sign of a ‘non-moral’ state.

Pakistan has an increasingly inglorious reputation of harbouring the ‘terror nurseries’ of the world, and the emerging optics of defiance to the ICJ verdict are worrisome pointers of a flawed national nar-
rative, aspiration and ultimately destiny.

(The writer is former Lt Governor of Anda­man & Nicobar Islands, and Puducherry)