Approaching ICJ should be smart, not emotive

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  • Most approaches founder because of lack of jurisdiction

The Pakistan Government intends to approach the International Court of Justice (ICJ) after India’s abolition of Occupied Kashmir’s special status under Articles 370 and 35A of its Constitution and its imposition of a military lockdown in the territory. While the decision is laudable in terms of further internationalizing the Kashmir issue, Pakistan needs to smartly consider it does so.

The ICJ Statute provides that the ICJ’s jurisdiction comprises all cases parties refer to it and all matters specially provided for in the UN Charter or in treaties or conventions in force. The Statute also provides that the States parties to the Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the ICJ. The ICJ Statute also provides, first, that these declarations may be made unconditionally or on condition of reciprocity by several or certain States, or for a certain time, and, secondly, that these declarations which are still in force shall be deemed, as between parties to the ICJ Statute, to be acceptances of compulsory ICJ jurisdiction.

Should Pakistan, through the General Assembly or Security Council, manage to take this matter to the stage of an ICJ advisory opinion, it could very well open a can of worms that might finally force Modi government to the negotiating table

India filed a declaration with it in 1974 under which it excluded from the ICJ’s jurisdiction disputes in 11 different categories. The four relevant dispute categories are (1) Disputes about which parties have agreed to or shall agree to some other method of settlement, (2) Disputes with any former or present Commonwealth Member (3) Disputes concerning a multilateral treaty unless all parties to it are also parties to the case or the Government of India specially agrees to jurisdiction, and (4) disputes with India concerning or relating to the status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundaries.

The ICJ, has ruled that, on the basis of the Indian Declaration, it had no jurisdiction to entertain Pakistan’s application regarding the shooting down of a Pakistani training aircraft by India. It further held that the Simla Accord of 1972 provided both the countries would settle their differences by peaceful means through bilateral negotiations or by any other mutually agreed peaceful means. It further referred to the 1999 Lahore Declaration reiterating the determination of both countries to implement the Accord. It also rejected Pakistan’s argument of estoppel whereby India would be precluded from relying on the Indian Declaration by virtue of Article 1 of the Simla Accord. It accepted the Commonwealth Reservation in the Indian Declaration.

In this backdrop, if Pakistan now approaches the ICJ against India on grounds of a territorial dispute, India may arguably counter it by pressing its Reservations, and the ICJ is very likely to decline to exercise jurisdiction. In view of the previous ICJ position, it is also possible for India to rely on the Multilateral Treaty Reservation to exclude the ICJ jurisdiction in the face of a Pakistani position that India has violated the UN Charter and the various UN Security Council Resolutions on Kashmir.

It has also been suggested by various legal experts (both domestically and overseas) that Pakistan may alternatively approach the ICJ under the Genocide and Racial Discrimination Conventions, o which both are parties..

While there is sufficient evidence both from the recent past (and from reports since 5 August 2019) that India has violated both the Genocide and Racial Discrimination Conventions, taking the case to the ICJ under the either will have to overcome the jurisdictional challenge.

Article IX of the Genocide Convention grants the ICJ jurisdiction to entertain disputes between contracting parties. Similarly, Article 22 of the Racial Discrimination Convention provides that any dispute between two or more State Parties with respect to the Convention, not settled by negotiation or by the procedures expressly provided shall, at the request of any of the parties to the dispute, be referred to the ICJ for decision, unless the disputants agree to another mode of settlement.

However, India has entered declarations to both Article IX of the Genocide Convention and Article 22 of the Racial Discrimination Convention. Both these declarations are more or less identical and provide that for the submission of any dispute to the ICJ’s jurisdiction, the consent of all parties to the dispute is required in each individual case.

Accordingly, India may well use these declarations to block ICJ’s jurisdiction if Pakistan files a case against India for violation of the Genocide and Racial Discrimination Conventions. Based upon the ICJ’s judgment in our Aerial Incident case of 1999, there is strong likelihood that any arguments from the Pakistan side suggesting mala fides and abuse of right by India to use the abovementioned declarations under both these Conventions may be rejected by the ICJ.

Another option suggested is to obtain the ICJ’s advisory opinion on the legal consequences of India’s action. They may include the adverse impacts on the Kashmiri people’s right of self-determination under the various Security Council Resolutions as well as attempted genocide and racial discrimination by India by changing the demographics of Jammu and Kashmir. The ICJ may give an advisory opinion on any legal question at the request of whatever body may be authorized to make such a request. Article 96 of the UN Charter empowers, among others, the UN General Assembly or Security Council to request the ICJ to give an advisory opinion on any legal question. While advisory opinions are not binding, they may inform the development of international law. The ICJ itself states that advisory opinions “carry great legal weight and moral authority. They are often an instrument of preventive diplomacy and have peace-keeping virtues. Advisory opinions also, in their way, contribute to the elucidation and development of international law and thereby to the strengthening of peaceful relations between States.” The ICJ has held that the lack of consent by a State to its contentious jurisdiction had no bearing on its advisory jurisdiction.

The last thing Pakistan and the Kashmiri people need is to spend another nine to 12 months in a legal battle on the preliminary question of the ICJ’s jurisdiction, with past precedent strongly suggesting that ICJ may eventually refuse to exercise its jurisdiction. Thus, Pakistan’s smartest option might be to approach both the UN General Assembly and Security Council and press upon them to approach the ICJ for an advisory opinion. The ICJ may also additionally be requested to give an advisory opinion on India’s obligations under the various Security Council Resolutions on Kashmir and in particular to hold a plebiscite. The rendering of an advisory opinion by the ICJ may also involve a multitude of questions of fact, which would provide Pakistan with an opportune moment to press for the appointment of a UN fact-finding mission in Jammu and Kashmir.

Attempting to accomplish some, if not all, of the foregoing objectives would involve protracted diplomatic efforts to rally the UN, the P-5 and other powerful states. No doubt that India shall, at every stage, resist. But should Pakistan, through the General Assembly or Security Council, manage to take this matter to the stage of an ICJ advisory opinion, it could very well open a can of worms that might finally force Modi government to the negotiating table.