Brahma Chellaney
Pakistan is an incorrigibly scofflaw state for whom international law matters little. Still, India was left with no option but to haul Pakistan before the International Court of Justice after a secret Pakistani military court sentenced to death a former Indian naval officer, Kulbhushan Jadhav, for being an Indian “spy”. At a time when there was no hope to save Jadhav, the ICJ interim order has come as a shot in the arm for India diplomatically.
However, Pakistan’s response to the provisional but binding order that it does not accept ICJ’s jurisdiction in national security-related matters underscores India’s challenge in dealing with a country that violates canons of civilized conduct and engages in barbaric acts, as exemplified by the recent beheading of two Indian soldiers. The concept of good-neighbourly relations seems alien to Pakistan. For example, in the Kashmir Valley, the Pakistani military establishment is actively promoting civil resistance after its strategy of inciting an armed insurrection against India has yielded limited results.
For years, India has stoically put up with the Pakistani military’s export of terrorism. Even as Pakistan violates the core terms of the Simla peace treaty, India faithfully adheres to the Indus Waters Treaty (IWT).
Significantly, the ICJ’s welcome interim order has followed a string of setbacks suffered by India between 2013 and 2016 in three separate cases before international arbitral tribunals. One case involved a maritime boundary dispute in the Bay of Bengal, with the tribunal awarding Bangladesh almost four-fifths of the disputed territory.
A second case, instituted by Pakistan, related to the IWT and centred on its challenge to India’s tiny 330-megawatt Kishenganga hydropower plant. The third case was filed by Italy over India’s initiation of criminal proceedings against two Italian marines, who were arrested for killing two unarmed Indian fishermen.
Despite apparent flaws in the decisions of the tribunals in all three cases, India abided by them. The ICJ is a higher judicial organ than any tribunal, yet it lacks any practical mechanism to enforce its rulings. If Pakistan does not abide by the ICJ order, it will expose itself thoroughly as a rogue state.
In a world in which power respects power, the international justice system cannot tame a wayward state like Pakistan. In the final analysis, India has to tame Pakistan on its own. The ICJ interim order should not obscure this harsh reality.
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