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Kashmir Issue at the International Court of Justice

Pakistan’s obsession with Kashmir is not dying down and remains in total disarray ever since abrogation of Article 370 by the Government of India on August 5, 2019. Its desperation is increasing with every passing day and is unable to digest the reality of bifurcation of erstwhile Jammu & Kashmir (J&K) into two union territories of J&K and Ladakh. Pakistan, in a wild goose chase, knocking every door at international arena to flag the Kashmir issue and gather the support and coerce  India to roll back its action on J&K. However, Pakistan got awfully cold shoulder from the world community and as a matter of fact Pakistan was advised to resolve the Kashmir issue bilaterally with India.  The final nail in the coffin to its efforts to internationalise the Kashmir, was driven at United Nations (UN)  where majority of nations, both permanent as well as non permanent members concluded that both countries to resolve the matter bilaterally and declined to even issue a official statement post ‘closed door’ meeting.

Move to International Court of Justice

After drawing blank at UN and huge snub to Islamabad and its all-weather ally China to internationalize the issue, Pakistan announced that it will approach the International Court of Justice (ICJ) over the unilateral decision of abrogating Article 370 by India.

Pakistan Foreign Minister Shah Mehmood Qureshi announced that “An in-principle decision has been taken to take the issue of Kashmir to the International Court of Justice.”  He also told that. “We have decided to take Kashmir case to the International Court of Justice. 

 

Separately, Special Assistant to the Prime Minister on Information Firdous Ashiq Awan confirmed to reporters following a cabinet meeting that an in-principle approval had been granted by the cabinet to take the issue to the world court. 

She said that the case will be presented with a focus on the violation of human rights and genocide in occupied Kashmir.

After ICJ, what next

In an another development, Pakistan Foreign Office spokesperson Muhammad Faisal declared  that Pakistan also planning to raise the Kashmir issue at the UN Human Rights Council.

Briefing the Senate Committee on Kashmir and Gilgit-Baltistan Affairs, Faisal said that consultation are  going on various options including to use the forum of the UN Human Rights Council.

He said another stage available for Pakistan to take up the  matter with the Organisation of Islamic Cooperation. He also raised the concerns about the ceasefire violations along the Line of Control (LoC) by India  and loss of life on both side.

Viewpoint

The rhetoric of taking Kashmir issue to ICJ is more of an ‘emotional’ outburst of Pakistan foreign minister as it is not even apparent whether the issue of human rights violation or abrogation of Article 370 will be flagged at ICJ. It also appears that Pakistan has not explored legal aspects and done its homework prior to making such an announcement. The Kashmir dispute, at the first place may not be admitted in ICJ for consideration as the Pakistan stands on very weak footings legally. For a case to be admitted in the ICJ, the first and foremost requirement is the consent of both the countries.

There are certain circumstances under which consent can be expressed. Both countries can approach ICJ through temporary arrangements for any specific issue to be  heard in the court. Considering India’s stand that revocation of Article 370 is an internal issue and in no case like  interence from any international agency. ICJ may exercise its jurisdiction if a state has accepted it unilaterally and India, in 1974 had recognised the ICJ jurisdiction but with number of reservations. The reservations below removes the jurisdiction of ICJ which would almost rule out admission of the Kashmir dispute in the ICJ:

  • Disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement;
  • Disputes with the government of any State which is or has been a Member of the Commonwealth of Nations;
  • Disputes in regard to matters which are essentially within the domestic jurisdiction of the Republic of India;
  • Disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved;

Based on India’s invoking the exception of exemptions for disputes between commonwealth countries or multilateral documents, In 2000, the ICJ agreed with India that Pakistan’s suit to seek reparations and compensation for the shooting down of an unarmed aircraft could not be admitted.

It would be prudent for Pakistan to reconsider its legal options before bringing a claim in relation to Kashmir to the ICJ.  If not, Pakistan would likely meet the same fate as in the ICJ’s decision in Jadhav’s case where it has been blamed for violating  Vienna Convention on Consular Relation (VCCR) to which both India and Pakistan are signatories.

27 Aug 19/Tuesday                                                   Written by Fayaz

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