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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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South Asia

Pakistan’s peace-loving gestures are considered its weakness, unfortunately

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Pakistan is a peace-loving nation and a responsible state. The leadership, civil and military. Both are visionary and rational very much. Pakistan was the hub of western tourists in the 1950s, 1960s, and 1970s, due to its natural beauty, friendly and hospitable environment, and affordable living. Economic growth was one of the highest in this part of the world. But suffered a lot since the 1980s, due to the situation in Afghanistan. It was not our war, but unfortunately, we were pushed into this war. As a result, Pakistan offered 80,000 precious lives of Pakistani nationals, an economic loss of estimated up to 250 billion US dollars. In addition to it, extremism, terrorism, trafficking, smuggling, ethnicity, intolerance, gun, and drug culture, etc. were a gift. Due to the war-like situations during the last 4 decades, nations spared all resources, including human resources, financial resources etc on imposed war-front. As a result, industrial agriculture, infrastructure development, education, SW&T, R&D, Innovation, Commercialization, Health Sector, etc all walks of life suffered a lot and as result, today facing the worst economic crisis with over 100 billion foreign debt.

But, after having so many bitter lessons, the nation is even more mature and trained to survive under any circumstances. In fact, has emerged one of the most resilient nation. India staged the drama of “Pulwan” on 14 February this year, and without collecting evidence and investigation, just within hours, blamed Pakistan and threatened Pakistan. Pakistan offered to extend full cooperation in investigation and punish the responsible. But, India, according to pre-plan, attacked Pakistan on the 25th of February and dropped bombs in Balakot a city deep inside Pakistan. The leadership of Pakistan is very much sensible and rational and noticed that India is pushing Pakistan into full-scale war. The visionary leadership in Pakistan realized the consequences of war, especially when, both India and Pakistan, both are nuclear states, possessing enough piles of lethal weapons to destroy each other completely, and its impact on the region as well as global. Formulated a smart strategy to respond on the 27th of February, giving a message to India, that although Pakistan has capabilities and enjoys supremacy over India, it still sticks to “Love-For-Peace” and does not wish to opt for war, successfully averted to escalate to a full-fledged war. Even that, Pakistan released the captured pilot of Indian air force inside Pakistan territory, as a good-will gesture.

India revoked its own constitution on the 5th of August and imposed curfew in Kashmir. It is an act of war and violation of UN charter, Simla Agreement and all norms & practices of civilized world. Siege of Kashmir, complete black-out by suspending Internet, mobile phone services. Cutting all modes of communication, evacuating all foreigners and visitors from Kashmir. Keeping people under house arrest. Occupying forces are killing, arresting, detaining and raping on a mass scale and draconian laws imposed empowered the security forces to shot at a spot on suspicion only, with any judicial process. After 42 days of curfew, people are facing a severe shortage of food, fuel, electricity, medicines, and life is completely at a halt, stand-still status. It is the largest curfew in the known-history of human beings, as around 8 million people are under siege, and Kashmir has been turned into a big jail, people are treated as prisoners. India’s atrocities and brutalities have crossed all records of human rights violations.

UN, Human Rights Organizations, Mainstream Media, International organizations, NGOs, the whole International community have shown deep concerns on Indian atrocities. Protests, agitations, rallies, and demonstrations, all around the world as solidarity with the people of Kashmir have been witnessed. European Parliaments, UNSC, OIC, SCO, and all other international organizations are worried about the deteriorated situation of humanity in Kashmir.

Kashmir is a dispute between China, Pakistan, and India. India has illegally occupied a part of Kashmir known as Indian Occupied Kashmir. But people of Kashmir are spread all over three parts, i.e in Pakistan known as Azad or Free Kashmir and China. Kashmir is one nation and having blood relations in all three parts. They are charged at peak to enter into India Occupied Kashmir and help their brothers and sister in Indian Occupied Kashmir. They wanted to provide them food, medicines and basic necessities of life. The government of Pakistan is trying its best to stop them to march toward Indian Occupied Kashmir, as they are unarmed and simple villagers, they might have the high spirits to rescue the lives of their brothers and sisters in Indian Kashmir but might face firing by Indian Army. I am afraid, the public pressure is growing with passing each day and they might march toward Indian Occupied Kashmir, and Pakistani Security Forces may not be able to stop them, then they might come under the Indian forces firing range. It might complicate the situation. The government of Pakistan is committed to observing restrains and avert any war, with India, but if its civilians are killed, it may create an unexpected situation, difficult to predict the reaction.

On the other hand, Indian military deployment along the line of control and frequent violations of line of control, use of cluster bombs on civilian population inside Pakistan, and war-preparations are alarming. Indian Army Chief announced that The Indian Army is well prepared to Attack Pakistan and just waiting for a signal from its Government in Delhi.

Pakistan is trying its best to observe restrains and showing maximum tolerance and patience. But India considers Pakistan “Love-For-Peace” as its “weakness”, Unfortunate! Very Unfortunate!

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Webinar: Kashmir Outside the Crosshairs- Does Anyone Care about Kashmir?

MD Staff

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Join Modern Diplomacy and our Executive Vice Chairman, Prof. Matthew Crosston, for a Live Intelligence briefing / Webinar, on Sunday September 29 at 18:30 (IST) to learn:

* Why does the US continue to ignore Kashmir but give loads of attention to every country around it?

* Is it necessarily a positive if the US DOES start paying attention to it? 

* What would be GOOD attention and what be BAD? Which one is the US likely to give?

* Can Kashmir ever be left alone to develop independently and not be a pawn of regional neighbors?

These and other controversial but critically important questions will be covered in an exciting intelligence briefing that will still allow for a dynamic, open discussion exchange with one the world’s most recognized, accomplished and sought after Intelligence experts, Dr. Prof. Matthew Crosston, Executive Vice Chairman of Modern Diplomacy.

Reserve your seat here

Dr. Matthew Crosston is Director over all Intelligence programs and Professor of Strategic Intelligence and Global Security in the School of Security and Global Studies at the American Military University. He is an acclaimed author and international speaker who consults with governments, media organizations, and academic institutions on a range of issues covering peace mediation, human rights conflicts, resource dilemmas, intelligence, change leadership, and education innovation. His works overall have been translated into Russian, Arabic, Chinese, Indonesian, Hebrew, Spanish, Turkish, Farsi, Greek, and Uzbek. He has a BA from Colgate University, MA from the University of London, PhD from Brown University, and completed his Post-Doctoral Fellowship at the University of Toronto.

Modern Diplomacy and Center for International Strategic Analyses

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Secularism in India: Disparity in theory and practice

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Authors: Areeja Syed and Kinza Shaheen*

Secularism is adopted by most of the contemporary states. The three intrinsic principles of secularism are  freedom of belief, that every person living in that particular state has his own belief system and he can believe and worship any God, second is the institutional separation and third is the ‘no discrimination’ on the basis of religion. The largest democracy of the world, India claims to be a secular state. There were various reasons to declare a state as a secular, in which one was domestic reasons and other was global. If we talk about the internal reason, we know that most of the people in India follow the religion of Hinduism, but apart from Hinduism there are many religions such as the Islam, Sikhism and Buddhism etc. The state of India declares itself as a secular to get the support of the heterogeneous population. As far as the global reason is concerned, India proclaims itself as a secular state to portray a positive image in the world.

Secular means equality, so in western states it depicts a positive image that these particular states have equality for every individual. For that reason, India following the notion of the western states declared itself as a secular state. However, the record of India in religious bigotry is quite disappointing. Minorities are not enjoying equal rights as enjoyed by the Hindus in India. It is adopting the policies of ‘Hindutva’ which shows the dominance of Hindus in every walk of life. On one hand it portrays a secular image to the world and on the other hand minorities like Muslims are beaten and even killed to eat the beef.  Beef is one of the favourite hilal meals of Muslims. Moreover, most of the Muslims have businesses that are directly and indirectly related to the livestock. They slaughter the cows and make a living. Ironically, Muslims are being beaten by the Hindus either on the slaughter of cow and eating of beef.  A lot of beef shops had been burned by the radical Hindus. They generate limitations on the Muslims to slaughter cows. How India could claims to be a secular state if a minority individual could not practice his own religion. The Indian media also added fuel to the fire by just giving biased and one sided stories in favour of extremist Hindus.

The ruling government of BJP is also silent over that biasness for the cause that there is Hindu majority in India and if they do anything to protect the rights of minorities, it will make Hindu fanatics discontented and they will lose their vote banks, they think rational too in terms of political gains. Francis Schaeffer says that just showcasing secularism is a more dangerous than the clear-cut discrimination. There are exceptionally stumpy numbers of political representations of Muslims in the politics.

Question arises that being the 2nd highest population of India, why much Muslims are not representing the Indian government? Kashmir is one of the major examples of human rights violation. Each day Muslims have been targeted by the radical Hindus. Indian military is killing the Kashmiri youth on daily basis. Most of the time, Kashmiris have to live under the curfew. However, curfew is the element of a dictator and an authoritative regime. The democratic and secular states view curfew as a violation of human rights. Since 1947, India remained unsuccessful to establish it writ over the Jammu & Kashmir. And so, India is adopting barbaric tactics to get hold of Jammu &Kashmir. Indian forces are making use of Pallet guns against the civilians. Incidents of braid chopping and rape of Muslim girls by the extremist Hindus and Indian forces are rising up. But the world has closed its eyes over the human rights violation in Jammu & Kashmir because India is emerging as an economic giant in the international forum. The International community is quiet interested in India due to its growing economy, its geopolitical location and a number of other elements. That is why; states are silent over the atrocities of India in Jammu & Kashmir.

The human rights violation in Kashmir gives an incentive to the freedom fighters to take up weapons to defend their rights. One can analyze this from two dissimilar perceptions. One is the discriminative behaviour of the state with that individual (who became freedom fighter later) which compel him to be a freedom fighter and fight for himself and his family, and second refers to the historical background of that individual, from how much sufferings he sees in his childhood on him n his family, that psychologically disturbed him and he had that thinking from his childhood that he will take the revenge when he grew up. In both of situations, India is solely accountable and responsible for creating Freedom Fighters in the Region.

Dissatisfied with the curfew and killing India is taking the territory of Jammu and Kashmir under the legal pretext to maintain its image as a democratic and secular state. On August 5, the President of India Ram Nath Kovind issued a presidential order to make applicable the provision of the constitution in the Jammu & Kashmir. The presidential order was approved by the parliament in a resolution. On August 6, 2019 the president nullify the article 370 of the Indian constitution that provides special status to the Jammu& Kashmir territory. With the nullification of the article 370, non-Kashmiris will be allowed to purchase land in the disputed territory which is likely to change the demographic of the Jammu Kashmir. India is targeting the minorities through such kinds of tactics to serve the interests of the Hindus.  Democracy and Secularism gives equal rights to the citizens without creating discrimination on the basis of religion, colour and creed. If India continued the policies of persecution against the minorities than it will create further security problems for it. More and more people will take up weapons against the state when they see that state is backing the atrocities.  It will lead India at the brink of collapse. If India treat everyone equally then it will also diminish the anger of freedom fighter and there will be no reason for unequally treated people to struggle against government. Hence Indian government need to look into this state of affairs in a quiet serious method or else in the Indian government will be responsible for the disputes and which will deteriorate their international image too.

*Kinza Shaheenhas done M.phil in International Relations from Comsats University Islamabad.

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