THERE is and was a demand from many people in Pakistan that the jurisdiction of the International Court of Justice (ICJ) may be invoked on the Kashmir conflict and against India’s illegal and unilateral actions. After India’s illegal and unilateral actions on 5 August 2019, the Foreign Minister of Pakistan has also announced that the government will take this issue to the ICJ. Lawfare and political warfare are different for lawfare knowledge of international legal instruments and mechanisms is necessary otherwise it leads towards misconceptions. There is a huge difference between international and domestic laws.
ICJ was established in 1945 to settle international disputes by peaceful means and its statute provides the procedure of court. According to Article 34 of the statute, only states may be parties of the court and individuals do not have access to the court. Art 36 of the Statute provides the basis of the jurisdiction of the court. According to this article if the parties of the dispute agree to refer a dispute to court through a special agreement, the court has jurisdiction. In the Kashmir dispute, India is and will not agree to refer the case to ICJ. The second way is in any matter which is provided in treaties and conventions. The list of treaties is given in the ICJ website, in this list there are only three multilateral conventions on which the jurisdiction of the court could be invoked on the situation of Kashmir but in these three conventions, one is yet to be open for signature and in other two either Pakistan or India had not ratified or ratified with reservations.
Ljubljana – The Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and other International Crimes (Art 86) was adopted on 26 May 2023 and will be open for signing on 14-15 February 2024. The Convention on the Prevention and Punishment of the Crime of Genocide, 1948 (Art IX) was ratified by Pakistan in 1957 but India ratified with reservation that with reference to article IX of the Convention, the Government of India declares that, for the submission of any dispute in terms of this article to the jurisdiction of the International Court of Justice, the consent of all the parties to the dispute is required in each case.” The third convention is the International Convention for the Protection of All Persons from Enforced Disappearance, 2006, Art 42, para-1 is not signed by Pakistan and not ratified by India. There is no other bilateral or multilateral agreement which provides any clause of jurisdiction of ICJ.
The third way is by accepting compulsory jurisdiction by declaration of the court but this article also provides that the declarations referred may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time. Both Pakistan and India accepted the compulsory jurisdiction of the court with reservations, Pakistan submitted its latest reservations on 29 March 2017 whereas India submitted on 27 September 2019 after the abrogation of the special status of Jammu and Kashmir. Besides other reservations of India, these are more specific to stop the Kashmir case presented before ICJ.
These are disputes with the government of any State which is or has been a Member of the Commonwealth of Nations, 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, including the measures taken for protection of national security and ensuring national defence, disputes concerning the interpretation or application of a multilateral treaty to which India is not a party; and disputes concerning the interpretation or application of a multilateral treaty to which India is a party, unless all the parties to the treaty are also parties to the case before the Court or the Government of India especially agree to jurisdiction, disputes with non-sovereign States or territories, disputes with India concerning or relating to:(a) the status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundaries.
Pakistan as a state could invoke the jurisdiction of ICJ but due to reservations by India, it could not get any positive result. Another way is advisory opinion which could be initiated by the UN Secretary General or any organ/entity of the UN. The Kashmir conflict is multidimensional, lawfare is an important way to project this case in international legal forums. However, there is a need to formulate a comprehensive, long-term policy keeping in mind the threats faced in the future. A legal battle can be fought with wisdom and broad-based consultation with experts rather than sloganeering to appeal to emotions and public opinion.
—The writer is Director Kashmir Policy Research Institute, Director JKLC.
Email: rajasajjad007@gmail.com
views expressed are writer’s own.
