Can ICJ deter Pakistan?

 As rightly remarked by a noted philosopher: “Whenever law ends, tyranny begins.”
This saying assumes considerable significance considering the international legal regime under which the modern state system operates. Why we can raise suspicions about Pakistan’s action even though the world court has stayed the execution of Kulbushan Yadhav can be justified from the very nature of International law which Pakistan has flagrantly violated by denying consular access to Yadhav as per the provisions of Vienna convention to which it is a signatory. Why can we also raise apprehensions about Pakistan not abiding by the direction of the world court, is also to the weaknesses that international law suffers from. In this regard we have to first of all understand the very nature of international law.
This shall become clearer if we try to distinguish between the law as traditionally understood, may be referred to as domestic law and international law.
As traditionally understood, law consists of a set of compulsory and enforceable rules. It thus reflects the will of the state and claims universal jurisdiction within a particular political community. Secondly, law is compulsory in the sense that the citizens are not allowed to choose which laws to obey and which to ignore because, law is always backed up by a system of coercion and punishment. The transgressors are to be punished. Thirdly, yet more importantly, law has a public quality in the sense that it consists of codified, published and recognized rules. This is achieved by enacting law through a formal and public legislative process.

Interestingly, in none of these senses, international law qualifies itself to be a law especially when there exists no central authority in international domain that actually legislate international law or capable of enforcing international law whenever it is breached. In other words, there is no supra-legislative authority to enact international law or no world government or so called international police force that could compel states to observe and follow international legal norms. It is in this sense that the international law is referred to as the soft law rather than a hard law as domestic law can be equated to.
In the midst of all these weaknesses and flaws in international law, the dominant question is: why is it abided by or respected by the states then? On the same analogy, why should Pakistan honour the obligations it has incurred upon itself under the international law?
One possible argument in this regard could be that since treaties or conventions constitute one of the main sources of international law, it is morally ordained that the states must honour the obligations they have undertaken under a treaty. This is justified in morality because the treaties having been signed by the states are very clearly rooted in their consent in the sense that the states enter into treaties purely on voluntary basis. It is expected that under the norms of international law once the states sign and ratify a particular treaty, it must rather should be obeyed and honoured. This notion of morality is very much rooted in one of the fundamental principles of international law contained in the Latin maxim: pacta sunt servanda. This literally means that the treaties are binding on the parties to them and must be executed in good faith.

In practice however, the states do observe this principle, but the question is can we expect this kind of gesture from a state like Pakistan which falls within the league of pariah states having no civility and entrenched Constitutional values either in its domestic or international conduct. We can not compare Pakistan with India, for India has demonstrated on many occasions that it is not only a civilized member of the international community having well established democratic traditions and human right culture honouring its obligations under international law, but a deep rooted Constitutionalism as well. Thus it will respect the Constitutional mandate which article 51 of our Constitution enjoins the State to honour treaty obligations. Even though, lets say for the sake of an argument, Pakistan tries to honour the obligations of Vienna convention say to shelter itself from international condemnation, it can or may very well take recourse to another enshrined principle of international law that is contained in a similar Latin maxim: rebus sic stantibus. This doctrine of international law emphasize that the states can terminate their obligations under a treaty if a fundamental change of circumstances has occurred. It may be expected that in the next round of arguments before the ICJ, Pakistan might well take recourse to this line of action by stating that a fundamental change of circumstances has taken place since the treaty was signed by it in terms of souring relations between the two countries. It can also cite the same reason for the termination of its obligations under a 2008 bilateral agreement that India and Pakistan have.

Lets now revert to another reason as why do states abide by international law i.e. (treaties for that matter) and so should Pakistan.
It is argued and that too with credible evidence that one of the major incentives that accrue to states for observing the cannons of international law is self interest and reciprocity. In an international system, states calculate that in the long run complying with the rules of international law say, treaty obligations will bring benefit to them. The main benefit that the states visualize is reciprocity which implies a relationship of mutual exchange between or among states. In simple words, it means that favours are returned for favours or that punishment is returned for punishment.

Taking the case of Pakistan in the present case, it can be argued with certainty that it will be motivated anyhow by this incentive of reciprocity insofar as India is concerned. Can we expect that Pakistan would go to the extent of saving its own national facing a death sentence say on similar charges in India? There is thus reason that Pakistan would base its action in the instant case on the basis of reciprocity and self interest insofar as India is concerned. Ironically, if any such situation could arise say sometime in future, Pakistan even go to the extent of denying that a particular person facing death sentence in India is actually its national as it did so skillfully in case of Ajmal Kasab despite the fact that his nationality was later on traced to Pakistan when his parents and his place of residence was traced to Pakistan by media personnel. But Pakistan all along remained in a denial mode.
Another reason why Pakistan is hard to be deterred by ICJ verdict is the similar inherent weakness that ICJ significantly suffers from. Although, the world Court has spurned the Pakistani argument that it has no jurisdiction in the matter, the fact remains that ICJ does not have any mechanism to enforce its judgment. Even though, Pakistan is a party to the compulsory jurisdiction of the court having signed the optional clause, it is also possible however under International law that the states could revoke their commitments under the optional clause so as to let them off the obligation to be bound by the decisions of the court. This could also be expected from Pakistan in the worst case scenario.
Even a civilized nation like the USA did it way back in the year 1984 in relation to a dispute that reached ICJ between Nicaragua and the USA and the court ruled in favour of Nicaragua.

By: Vishal