The curious case of ICJ review ordinance

On last Friday, Pakistan’s Law Minister Farogh Naseem after taking oath told the National Assembly that the ordinance was necessary to grant consular access to Indian spy Kulbhushan Yadav, who was caught for spying and sabotage activities in Balochistan. He further stated that if the ordinance had not been promulgated then India would have invoked Article 94 of the UN Charter that gives the Security Council the power to give effect to an ICJ judgment. Thus implying that bringing the ordinance has saved Pakistan from inviting serious repercussions from the UN Security Council.

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, the Bosnia-Herzegovina case against Yugoslavia.

In practice, however, states have not been subject to Security Council sanctions for non-compliance with the 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, 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 India 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 Kulbhushan 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 is tantamount 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 authorise 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. Denial of consular access to Kulbhushan Yadav, 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 merely on the pretext that an individual, who was involved in criminal espionage and terrorism activities, was denied consular access.

Even if, hypothetically speaking, India seeks redress at the UN Security Council under Article 94 (2) of the UN Charter and manages to obtain a favourable resolution under Chapter VII of the UN Charter, 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, 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, India would never go to the UNSC in this instant matter, therefore, instead of echoing legally vacuous thoughts that denial of consular access might evoke UNSC sanctions against Islamabad, the government should 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.

The writer is a lawyer