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ICJ Jurisdiction on Bilateral Issues: Possibilities Regarding Jammu and Kashmir Dispute

Abhishek Trivedi

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On May 18, 2017, the order of provisional measures has been given by the International Court of Justice (hereinafter referred to as ICJ) in favor of India in Kulbhushan Jadhav case between India and Pakistan. Some scholars have expressed their concerns over the repercussions that India might have to face due to its actions of involving the ICJ in the Kulbhushan Jadhav case.

Their concerns are that India has played into Pakistan’s hands, and given it a handle to open up many other issues. It was confident that Pakistan would be approaching the ICJ to decide the Kashmir issue and it will then hardly lie in India’s mouth to object to the jurisdiction of ICJ since India cannot blow hot and cold together.

India’s traditional stance has been that all issues swith Pakistan would be resolved bilaterally and the change could give an opening to Pakistan to internationalize Kashmir issue.  Criticizing India’s move to ICJ in Kulbhushan Jadhav case, Congress said, the best resolution (to issues) is bilateral at all times, no matter how recalcitrant Pakistan is. Senior CPI member D Raja said, “This decision has vindicated India’s stand in the international community. Pakistan will now have to reconsider its actions and decisions. According to some Pakistani columnists, the case, however, would benefit Pakistan more in the long run, since it is the smaller party. “India had now used a multilateral forum and it can’t back away from it tomorrow on similar grounds.”

Sushma Swaraj, Minister of External Affairs in India, assured that Pakistan could not take Kashmir issue to the ICJ and asserted that the matter must be resolved bilaterally as the Shimla Agreement and Lahore Declaration on Kashmir are very clear that Kashmir is a bilateral issue, which would only be settled by the two countries. Now, what would be the possibilities of ICJ’s jurisdiction if in future Pakistan takes the Kashmir issue to the ICJ?

Statute of ICJ and UN Charter: Possibilities of Jurisdiction

There are two ways, inter-alia, in ICJ statute under which Pakistan can take Kashmir issue to ICJ; one is Article 36 (1) and second is Article 36 (2). As far as Article 36 (2) is concerned, it will be very difficult or almost impossible for Pakistan to take India in ICJ on Kashmir as India has made a declaration on 18 September 1974 where it has kept itself being reserved from ICJ jurisdiction on two instances, inter-alia, i.e., first, that preventing the Court from entertaining cases involving two members of the Commonwealth (Article 2 of the declaration) and, second, its multilateral treaty reservation (Article 7 of the Declaration).

Under Article 36 (2) of the Statute, Pakistan will also not repeat the same mistakes which it has done earlier in 1999 in Aerial incident case where the Court finds that it has no jurisdiction to entertain the Application of Pakistan under Article 36, paragraph 2, of the Statute Since Pakistan “is . . . a member of the Commonwealth of Nations”, and now in 2017 in Kulbhushan Jadhav on the issue of provisional measures where the Court rejected Pakistan’s arguments relating to jurisdiction based on Article 36 (2), since India did not base this Court’s jurisdiction under Article 36 (2) but under Article 36 (1). If Pakistan goes to ICJ on Kashmir under Article 36 (1) which follows as “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force”. The compulsory jurisdiction of the Court under Article 36 (1) has three dimensions. Jurisdiction exists:

(a) In respect of all cases which parties refer to it,

(b) In terms of all matters specially provided for in the Charter of the United Nations, or

(c) In terms of all matters specially provided for in treaties and conventions in force.

So Pakistan may well approach ICJ jurisdiction under Article 36 (1) if either there is any treaty and convention in force exist between India and Pakistan on Kashmir issue or otherwise dealing with the issue, or under the provision of UN Charter.

Shimla Agreement between India and Pakistan on 2 July 1972 restricts the two countries, pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation (Article 1 (ii)), and more particularly in case of Jammu and Kashmir, neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations (Article 4 (ii)).

Under Lahore declaration on 21 February 1999, in its operative para, the two countries agreed to intensify their efforts to resolve all issues, including the issue of Jammu and Kashmir (Article 1), and shall intensify their composite and integrated dialogue process for an early and positive outcome of the agreed bilateral agenda (Article 2). Therefore, if the jurisdiction of the Court is founded on particular “treaties and conventions in force” or under the UN Charter under Article 36, paragraph 1, of its Statute, it becomes irrelevant to the Court to consider the objections to other possible bases of jurisdiction.

If Pakistan goes to ICJ against India’s violation of the principles and purposes of the Charter, as also envisaged and reiterated under Shimla agreement (Article (1)), pursuant to Article 36 (1) of the ICJ Statute, still Court will have no jurisdiction to entertain the Application on the basis of Article 36 (1) of the Statute as UN Charter contains no specific provision of itself conferring compulsory jurisdiction on the Court. 

Kulbhushan Jadhav Case: The Test of Bilateralism

As Pakistan argued in Kulbhushan case that the alleged activities of commander Jadhav are well dealt with under Article VI “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”, of Agreement on Consular Access on 21 May 2008 signed between India and Pakistan (hereinafter the “2008 Agreement”).

Pakistan also argued that the jurisdiction under Vienna convention on consular relations 1963 (from now on Vienna Convention) is limited, and indeed it is further limited and qualified or supplemented by the 2008 agreement.

India acknowledges that the Parties have signed 2008 Agreement, but it maintains that this instrument does not restrict the Parties’ rights and obligations under Article 36, paragraph 1, of the Vienna Convention.  In respect of the 2008 Agreement, Court concluded that it does not need to decide at this stage of the proceedings whether Article 73 of the Vienna Convention would permit a bilateral agreement to limit the rights contained in Article 36 of the Vienna Convention.  It is sufficient at this point to note that the provisions of the 2008 Agreement do not impose expressly such a limitation.

Article 73 (2) of the Vienna Convention says that “Nothing in the present Convention shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof”. It means 2008 agreement can only confirm, supplement, extend or expand the Vienna convention but cannot limit it. On the other hand, Shimla agreement and Lahore declaration, prima facie, precludes any bilateral issue between India and Pakistan, including Jammu and Kashmir, to be decided outside bilaterally or at the multinational forum.

Last but not least, as if India has opened Pandora’s Box to Pakistan by making Jadhav issue from bilateral to multilateral, Pakistan may sure not hesitate to take India in ICJ not only on Kashmir but may also on many matters such as Kishan-Ganga power project under Indus Water Treaty 1960.  

Abhishek Trivedi is pursuing his LL.M. degree in International Law from Faculty of Legal Studies, South Asian University-an International University established by SAARC Nations, New Delhi. His fields of interest and research in academics are Public international law, Law of International Organization, Human Rights law, Conflict of laws, commercial arbitration and International Environmental Law

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Into the Sea: Nepal in International Waters

Sisir Devkota

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A visit to the only dry port of Nepal will immediately captivate busy scenes with hundreds of trucks, some railway carriages and huge Maersk containers at play. Trains from the Port of Kolkata in India carry tons of Nepal’s exports every week. Every year, Nepal is fined millions of rupees for overstaying its containers at the designated dock in Haldiya Port of Kolkata. Nepal pays for spaces inside Indian ships to carry out its exports via the sea. This is the closest Nepal has come in exploiting economic opportunities through sea waters. Prime Minister KP Oli went one step further and presented an idea of steering Nepal’s own fleets in the vast international sea space. While his idea of Nepal affording its own ship was mocked; on the contrary, he was right. The idea is practical but herculean.

To start with, Nepal has a landlocked right to use international waters via a third country for economic purposes only. Law of the Sea conferences held during the 80’s, guarantees Nepal’s right to use the exclusive economic zone all around the globe. Article 69 of the Law of the Sea convention states that Nepal could both use sea as a trading route and exploit the exclusive economic zone of its sea facing neighbors. Nepal’s closest neighbor, India has a wide exclusive economic zone which consists of 7500 km long coastline. The article also allows landlocked nations to use docking facilities of the nearest coastal nation to run its fleets. An exclusive economic zone in sea waters is designated after a coastal nation’s eleven mile parallel water boundary ends; which is also a part of the coastal nations territory. Simply put, Nepali fleets can dock at India’s port, sail eleven miles further into international waters-carry out fishing and other activities, sail back to the Indian coast and transfer its catches back to Nepal.

Floating Challenges

Before ships can carry the triangular flag into sea waters, Nepal will need treaties in place to use coastal nation’s water to take off and build shipment facilities. Law of the Sea convention clearly mentions that the right to use another nation’s coast will depend solely on the will of the hosting coastal nation. Does Nepal have the political will to communicate and forge a comprehensive sea transit agreement with its coastal neighbors? Nepal’s chance of securing fleets in and around the Indian Ocean will depend on whether it can convince nations like India of mutual benefits and cancel any apprehension regarding its security that might be compromised via Nepal’s sea activity. The convention itself is one among the most controversial international agreements where deteriorating marine ecosystems, sovereignty issues and maritime crimes are at its core. Majority of global and environmental problems persist in the high seas; ranging from territorial acquisitions to resource drilling offences. Nepal is welcome into the high seas, but does it comprehend the sensitivity that clouts sea horizons? Nepal needs a diplomatic strategy, but lacking experience, Nepal will need to develop institutional capacities to materialize the oceanic dream. Secondly, the cost of operating such a national project will be dreadfully expensive. Does the Nepali treasury boast finances for a leapfrogging adventure?

How is it possible?

The good news is that many landlocked nations operate in international waters. Switzerland, as an example might not assure the Nepali case, but Ethiopia exercising its sea rights via Djibouti’s port could be inspiring. Before Nepal can start ordering its fleets, it will need to design its own political and diplomatic strategy. Nepal’s best rationale would lie in working together with its neighbors. The South Asian network of nations could finally come into use. Along with Nepal, Bhutan is another landlocked nation where possible alliances await. If India’s coasts are unapproachable, Nepal and Bhutan could vie for Bangladeshi coastlines to experience sea trading. Maldivian and Pakistani waters are geographically and economically inaccessible but Sri Lanka lies deep down the South Asian continent. If Nepal and Bhutan can satisfy Sri Lankan interests, the landlocked union could not only skim through thousands of nautical miles around the Bay of Bengal without entering Indian water space; but also neutralize the hegemonic status of India in the region. If such a multinational agreement can be sought; SAARC- the passive regional body will not only gain political prowess but other areas of regional development will also kickstart.

Most importantly, a transit route (such as the Rohanpur-Singhdabad transit route) from Bangladesh to Nepal and Bhutan will need to be constructed well before ships start running in the Indian Ocean. In doing so, Nepal will not only tranquilize Nepal-Bhutan relations but also exercise leadership role in South Asia. A regional agreement will flourish trade but will also make landlocked Nepal’s agenda of sailing through other regions of international sea strong and plausible. A landlocked union with Bhutan will trim the costs than that of which Nepal will be spending alone. Such regional compliance would also encourage international financial institutions to fund Nepal’s sea project. Apart from political leverages, Nepal’s economy would scale new heights with decreasing price of paramount goods and services. Flourishing exports and increased tourism opportunities would be Nepal’s grandiloquence. Nepal’s main challenge lies in assuring its neighbors on how its idea would be mutually beneficial. Nepal’s work starts here. Nepal needs to put together a cunning diplomatic show.

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Prime Minister Narendra Modi’s Hug Diplomacy Fails

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Prime Minister Narendra Modi’s enthusiasm is only to capture power; the same, however, cannot be said of foreign policy administration, especially in dealing with our immediate neighbors, and China. The best examples of his policy paralysis are the way in which demonetization and GSTs are implemented, or his sudden visit to Pakistan in December 2015. He is always in election mode. During the first two years, he was in the humor of a general election victory. Thereafter, he has spent much of his energy in establishing himself as the sole savior of the BJP in state elections, and this year he will turn his attention to the 2019 general elections.

Two years ago, without doing any homework or planning, Modi travelled to Pakistan from Afghanistan to greet his counterpart, the then Prime Minister Nawaz Sharif, to wish him well on his birthday. He hugged Sharif and spent only two hours with him to try to sort out the 70 year outstanding divergence between India and Pakistan.

Modi strategically hugs fellow world leaders. He has no strategic perception. He believes only in the power of his personal charisma in dealing with foreign policy matters. This strategy has failed considerably with China and with our other immediate neighbors, but he neither intends to accept these mistakes, nor is he interested in learning from them. More importantly, an alternative diplomatic strategy is necessary to maintain our international position; through prudent policy articulations. Let us examine the impact of his hug diplomacy.

During the 2013/14 general elections campaign he attacked the Congress-led UPA government on multiple fronts, including towards former Prime Minister Dr.Manmohan Singh’s policy on Pakistan. He proposed that the BJP government would have more guts to better deal with Pakistan. Under his administration, we lost numerous soldiers in fighting with Pakistan terrorists, experienced a 100-day shutdown in Kashmir, blindly allowed a Pakistan team to inspect our Pathankot Air Force Station, and generally continued down a visionless path in foreign policy. These indicate that Modi’s defensive and offensive strokes against Pakistan have failed completely, including the most politicized ‘surgical strike’ that did not contain the terrorists from Pakistan. Today, the Modi government is searching for policy directions in handling Pakistan, but sat in a corner like a lame duck.

In the beginning, when he took office, Modi perhaps believed that ‘everything is possible’ in international affairs simply by virtue of occupying the prime minister seat. Further, he thought that all his visits abroad would bring a breakthrough. His hugs with counterparts, various costume changes, and the serving of tea, indicate that our prime minister is using soft power approaches. These approaches were used by our first Prime Minister Nehru whilst India did not have a strong military or economy. However, India is not today what it was in the 1950/60s. Presently, hugging and changing costumes will not necessarily keep India influential in international relations, especially at a time when the world is undergoing multi-polar disorder. However, he is in continuous denial that his paths are wrong, especially in dealing with our neighbors.

What is the BJP led-NDA government policy on Pakistan? Does this government have any policy for Pakistan? Since 2014,Modi has not permitted the Minister of External Affairs, Sushma Swaraj, to contribute to any foreign policy articulations. As long as Sushma fulfills the duty of Ministry of Indian Overseas Affairs she will receive praise from the prime minister’s office.

During 2015 he met Sharif at his residence in Islamabad to give him a hug. This happened exactly two years ago. Further, this is a very serious question that the Media and Modi-supporting TV channels forgot to raise. Instead, without hesitation, they praised him for touching the sky, and described the moment as a diplomatic initiative for a breakthrough with our neighbor Pakistan. The Media will realize this mistake when their traditional viewers switch over to other channels to get centrist news.

What are the outcomes of Modi hugging Sharif at his residence? The results are terrible. India’s relation with Pakistan touches the lowest ever level in a history of 70 years. The Mumbai terror attack mastermind Hafiz Saeed was released from house arrest and has started a political party to contest the general elections in Pakistan next year. This government does not have the guts to put pressure on Pakistan to provide the evidence – as requested by the Pakistan’s Court – essential to keeping the trial alive against Saeed. Modi has often preached that his government succeeded in isolating Pakistan in the international domain. The reality would be as much India diplomatically isolating Pakistan from the international community as the vacuum has been comfortably filled by China without any difficulty. These are the achievements that Modi’s hugs have brought to India.

The stability of Afghanistan is in India’s long-term strategic interest. India’s ‘aid diplomacy’ to Afghanistan in various fields has been increasing day after day, including infrastructure development and the training of Afghan security forces. Yet, India’s influence in Afghanistan is in disarray. Former Afghanistan President Hamid Karzai said, “India should have its own policy on Afghanistan”. However, Modi’s policy makers in New Delhi are expecting the US President Donald Trump and Secretary of State Rex Tillerson to maintain India’s active and significant role in Afghanistan.

India showed its displeasure during the constitutional crisis in Nepal, in halting energy supply to Kathmandu. This forced the land-locked country to obtain easy support from Beijing. Nepal was once the buffer state between India and China; it is now sitting on China’s lap and steering India. Modi’s mute approach to the Rohingya crisis speculates India’s major power ambition. This is a serious setback to India’s diplomacy: it is now pushing Myanmar to get support from China, along with our neighbor Bangladesh, in resolving the crisis with Rohingya refugees.

The first democratically elected government under Mohamed Nasheed was toppled unconstitutionally in Maldives. Since India has failed to raise any substantial voice against this atrocity, China has jumped onto the scene. New Delhi ought to have designed a policy to resolve the political crisis, but India, the world’s largest democracy, has watched this incident as a movie in the Indian Ocean Theatre. The highlight was the decision of our Prime Minister to skip a visit to the Maldives whilst on his tour of the Indian Ocean islands.

In Sri Lanka, China is designing its future battlefield against India. As the war against LTTE was over, Colombo started travelling in a two-way track, with India and China. Beijing’s love affair, apparently with Colombo, but with an eye on New Delhi, is no secret. Since Modi has allowed these developments without exercising any diplomatic resistance, he has given China a comfortable seat inside Sri Lanka. China has now realised that her weaved network against India can be strengthened easily in the Indian Ocean, because New Delhi only displays silent concern. After Modi took office, India – China relations have remained static. The border talks are on stand still. Beijing holds on to extend a technical hold on Masood Azhar, a UN designated terrorist. The dragon pulls our immediate neighbors to her side. These developments indicate that our foreign policy articulations are not supported by any clear strategic trajectory.

Modi’s diplomacy is like an air balloon which, once torn, cannot be refilled; a new balloon is needed. Hugging a leader does not lead to any commitment in foreign affairs. Personal charisma does not work as a foreign policy tool in dealing with a world power. For this reason, Modi cannot understand the setback he is facing with China, Pakistan, and our other neighbors. In comparison, Vajpayee’s or Dr. Manmohan Singh’s combined simple charisma as leaders or economists with appropriate home-work in the past; has caused tremendous results in foreign policy, including expected results in Indo-US nuclear negotiations. This is completely missing in Modi’s administration.

Hence, the newly elected Congress Party President Rahul Gandhi has said, “Modi’s hug diplomacy fails”. It was a valuable comment that the ruling elite should consider as a meaningful insight. Alternative approaches are vital to regain our neighbors’ trust, as opposed to China’s. However, Prime Minister Modi’s this year of work will be focused on the 2019 general elections, compromising the proper attention due to India’s international diplomacy.

First published in Congress Sandesh

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Potential Consequences of Nuclear Politics in South Asia

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Established in 1948, Indian atomic energy commission turned towards United Kingdom for their first help in the making of Apsara. Subsequently, with a similar vision, the CIRUS reactor was supplied by Canada, where, the heavy water came from the United States.

India, over the years, has built a nuclear program that has led to the making of a number of reactors. India’s 1974 “Peaceful nuclear explosion” implies to their hegemonic ambitions as India has the capacity to produce around 300-400 nuclear weapons. The continuous upgradation of weapons by India could lead her as a hegemon nuclear power that can deeply unsettle Pakistan and China.

Calling into question India’s stated intentions, when it comes to nuclear tests, the plutonium for its 1974 and 1998 tests was diverted from its “civilian” nuclear facilities. After 1974, India continued to claim its explosion was “peaceful” and advocated global nuclear disarmament, even as it rejected proposals by Pakistan to denuclearize South Asia.

From Pokhran-I to Operation Shakti, India has traditionally relied on plutonium and thermonuclear technology. In 1992, the then Chairman of Department of Indian Atomic Energy  acknowledged that India had succeeded in the past for achieving the target of highly enriched uranium, while the centrifuge program was facing critical and technical hindrances. Also, it was admitted by the former Chairman of AEC, Raja Ramanna that India was working to produce more efficient centrifuges which were used for military purposes.  At the peak of all these developments, it is important to note that thermonuclear weapons have far more destructive power than a nuclear bomb.

India may also be considering using its civil power reactors to increase its stock of weapon-grade plutonium. Robert Einhorn, the State Department’s former top nonproliferation official told the Carnegie International Nuclear Policy Conference in March that the officials in the Bush administration had the ambition to sign a nuclear deal with India, to “work together to counter China- to be a counterweight to an emerging China.” He further expressed his views that the nuclear deal had unfortunate repercussions, because other nations concluded that Washington was playing favorites with India.

India is the only country in the region having uranium reserves that are higher than what other countries in the region hold. India has already received roughly 4,914 tons of uranium from France, Russia, and Kazakhstan, and it has agreements with Canada, Mongolia, Argentina, and Namibia for additional shipments. It also signed a uranium deal with Australia that has sparked considerable controversy at home.

This massive production of uranium annually can support its nuclear submarine program and current weapons grade plutonium production rate indirectly. These uranium reserves are enough for approx. 6-10 bombs per year.

Adding a twist to the existing fissile material build-up process, the Indo-US strategic partnership supplemented it. Under this dangerous bargain, it would continue to not only allow India to increase its fissile material but also the capacity to increase the build-up of nuclear weapon material.

Hence, the strategic stability in South Asia has been negatively impacted since the initial stages due to the hegemonic designs which India pursued with the start of CIRUS reactor. With the passage of time, the Indo-US nuclear deal and Nuclear Suppliers Group (NSG) waiver have already added more repercussions and now the discriminatory move to try to facilitate Indian NSG membership will further erode the strategic stability in South Asia.

Indian NSG membership and its potential exemption has adverse implications on non-proliferation regime. This has allowed India to expand its military program. As a result of 2008 exemption it has signed a number of agreement in nuclear domain with different countries. Interestingly, Mansoor Ahmed states that India has the capacity to utilize the uranium it is importing from these countries to produce more bombs.  The aforementioned reasons sum up India’s keenness to obtain NSG’s membership. This U.S.-backed move to make India a member of the NSG will be good neither for Pakistan nor for China, and it would set off nuclear instability in the region.

While looking at the dynamics of left alone Pakistan since late 1990’s, starting from Indo-US strategic partnership to now this geoploliticising of NSG. Consequently, this shall allow India to use all this a means of making the most optimum use of all its natural uranium stocks for weaponization. To offset the stakes, it might be prudent to have a close check on the international architects of India’s nuclear build-up. The alleged misuse of U.S. and Canadian controlled items by India must be enough to refrain from any cooperation if it is not abiding by group’s guidelines and commodity control list.

Furthermore, the more discriminatory the international nuclear order becomes, the less would be the effectiveness of deterrence and strategic balance in the region. The NSG will have to identify that India’s 1974 nuclear explosive test was the reason that nuclear supplier states established the NSG. It must also emphasize upon its commitment to uphold the principles of the nonproliferation.

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