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

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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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The Taliban Finally Granted Permission to the Former President Karzai to leave Afghanistan

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Former President of Afghanistan Hamid Karzai. (Express photo by Nirupama Subramanian)

Based on the information, the former president of Afghanistan, Hamid Karzai, was permitted to leave the country. At a time, when online meetings between Sohail Shaheen and American representatives are going on in connection with the start of intra-Afghan talks in Doha, The former president of the country, Hamid Karzai, was allowed to exit the country for the first time after August 15, 2021, when the Taliban took over. Nevertheless, it is not yet known when he will start his overseas trip, but his only purpose is to get preparation for the start of Intra-Afghan talks in Doha and to meet with American officials and foreign Afghan politicians. Since the end of October and the beginning of November, there are reports narrating that telephone calls are being made between President Hamid Karzai, and the US special representative for Afghanistan, Thomas West.

Besides, the persons are preparing for future negotiations, the re-established relationship between the former president Karzai and the CIA took place, when a CIA undercover intelligence officer met Karzai sometimes back, when he represented himself as an International media reporter. Sources suspect that the undercover agent interviewed the president under the auspices of a well-known German based Der Spiegel Magazine.

According to the information, former President Hamid Karzai will fly to Germany, while meeting with the CIA officials at the US Ramstein Air Base in Germany. Meantime, the former President Hamid Karzai will meet with some high-ranking officials of Germany and then have separate meetings with Western politicians and intelligence officers. Furthermore, after that, President Hamid Karzai will meet with the American ambassador to lay out the strategy for the potential negotiations.

 Currently, there is a lot of confusion in the Mandigak palace in Kandahar province, where Taliban Spiritual leader and the decision making hub located and it is said that there have been serious discrepancies  regarding allowing him to go abroad. However, Sheikh Haibatullah’s position is still neutral about his exit, while negotiating with his advisors to make a final decision in the upcoming days.

Nonetheless, there are no other specific differences regarding the permission. It is only the low-ranking Taliban fighters, who demand the precise judgement of the Taliban’s leader in this concern; In addition, some Taliban leaders are also unhappy about the whole process, especially the former members of the Quita Council of Taliban.

Now the ball is in the Taliban’s ground, whether they are ready to comply with the demands of the international community, by transferring the power to a transitional government or not, and to get along with the United States and get onboard the international community support. Definitely, it causes further splintering among Taliban groups and ISKP will use it as an opportunity to recruit Taliban fighters, while paving the way for regrouping in Khorasan Province the IS so-called territory.

The ISKP long before blamed Taliban for being ‘’ Rafeda’’, while simultaneously cooperating with the US, Russia, China and Iran for their political ambitions.  To conclude, the Afghan people will not accomplish a lasting peace and sustainable economic developments, since the country will turn into a new battle filed among countries, which have stake in Afghanistan.

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The Charisma and Chaos of Imran Khan

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PTI Chairman Imran Khan gestures at the march participants as his convoy arrives in Gujranwala on November 1, 2022. — Instagram

The chances of Imran Khan winning the elections of 2018 were quite murky. Despite his unparalleled fan base and populist rhetoric appeals to the young, and labor class of Pakistan, the legitimacy of his government is marred with allegations of fraud, rigging, and exploitation.

Some argue that his candidacy was a marketing tactic used by the ‘Establishment’ in Pakistan to form a government that is rather weak and dependent so that the ‘Establishment’ can continue its control over domestic security issues including the Nuclear escalation and relations with India.

But by and large, Khan won the elections.

Maybe it was the stardom attached to the name ‘Imran Khan’ and Pakistanis not wanting to confide in the same faces ruling them for centuries.

Maybe it was the mismanagement and violence that marred election day with unfathomable delays in result declaration in metropolis cities, coupled with post-poll manipulation.

Maybe it was the judicial-military nexus, that placed all the votes in the right places by not allowing voters to use their will during elections.

Maybe it was the 7 years-old narcotics case hearing moving forward against the stalwart of Pakistan Muslim League-Nawaz, Hanif Abbasi, giving him a life sentence in a rare late-night session of court, four days ahead of the elections that effectively knocked PML-N out of the race.

But the deal was done and can’t be undone and Imran Khan became the Prime Minister of Pakistan, for better or worse.

Khan the Celebrity

Pakistani nationals were victims of the financial crisis, unemployed people, those who lost their homes, and who were in debt; these people felt like the two parties ruling Pakistan for centuries had destroyed their country’s economy.

Imran Khan, with his humongous stardom as an athlete and philanthropist, seemed like the only ‘Messiah’ that could save them from all the atrocities they were facing.

Though, a significant number of votes were cast in favor of PML-N but not in the places that would have locked the win. So Imran Khan, persuaded the angry Pakistanis, the youth, and the labor class who were fed up with being handed over in trade deals with other nations.

Khan, a socialite that he was, knew how to connect with these agitated masses. Their grievances were clear as a day and so he gave them pretty promises wrapped up in his vibrant rallies filled with catchy songs. His huge social media presence along with the ‘Naya Pakistan’ slogan further amplified his staunch.

But there lies a challenge as to why Khan became the top highlight of this era. To many who were tired of politicians filling their own pockets, and amid the corruption charges on Nawaz Sharif, Khan’s celebrity status, his colorful personality, his promise of a corruption-free Pakistan, and his unconventional ‘Don’t Panic’ attitude – all of this made Khan seem like the only option who would deliver a better life and nation and, if not that, then at least would be the eradicator of what Pakistan had become.

Khan the Totalitarian

The other side of the coin sees Imran Khan as a narcissist, self-centered, and power-hungry mogul. After achieving his eternal craving of becoming the Prime Minister, he hardly showed any respect for the institutions of the country. More often than not he refused to attend the sessions of Parliament, with his excuse being the presence of members of the opposition party whom he referred to as ‘Crooks’ and ‘Chors’ (thieves).

This resulted in laws, instead of passing through an ordinary law-making process, being passed through presidential ordinances, with very limited power. We can clearly say that these laws were passed without debate, consensus, and thorough examination, negating the very foundation of constitutional requirements.

Additionally, Khan likes to fabricate stories in his speeches, a lot. In this vein, he brings down any democratic provision that proves him wrong, including targeting political parties on concocted charges of corruption; sustained attacks on the media; undermining law authorities, even the Supreme Court is not exempted from his allegations.

Through the abrogation of rule of law, irresponsible remarks about institutions, and disdain toward democracy, Khan himself created a fragile parliamentary system, which then collapsed on him. Not only this, but he has fractured the already dwindling democracy of Pakistan into a whole new level.

Khan the Leader

Khan came onto the political scene when Pakistan was facing a volatile situation both at home and abroad, coupled with the tensions going on with the Americas, and the rampant inflation, he was still able to take some impressive measures. His work related to health, relief programs, house loans, the environment, entrepreneurship, and the COVID response is admirable.

In addition, his billion tree tsunami and the building of several small dams initiated an environment-friendly drive in the climate change-affected country. But was he able to deliver on the ‘Promises’ made to the nation? Absolutely Not.

Perhaps he should have paid more attention to the cabinet as the abrupt changes in the system dwindled the confidence of investors in Pakistan’s economic machinery. His careless handling of some important economic programs including the CPEC decelerated the capital influx that caused the GDP to drop considerably.

To top it all off, Pakistan, in 2021 dropped from 124th place to 140th place according to Corruption Perceptions Index (CPI), leaving an ugly mark on Khan’s corruption eradication promises on which he has led the foundation of his political career. Maybe he should have abided by the agenda of progression in order to gear up his performance instead of getting involved in blame and shame politics.

Khan the funambulist

The important reason why Khan has a cult following in Pakistan is his unfiltered and raw opinions about topics like the Americas, and Afghanistan which he keeps casting in his speeches. And, the audience, mostly the social media-induced young generation eats it all up like a sweet concoction, without paying heed to the implications it will bring to the foreign policy of Pakistan.

Khan’s decision to appoint Usman Buzdar, an underqualified and inexperienced newcomer to a vital position in the key city of Punjab pretty much sums up his political foresight. Perhaps, the most interesting yet debatable contrivance of his regime is his relentless attitude toward the United States, no previous Prime Minister of Pakistan was able to say ‘Absolutely No’ to the US as it had many allies in the domestic political platform of Pakistan. This stance of Khan was admired a lot in the country, with the phrase being trending in Pakistan. But the remarks came with ramifications for Pakistan on the international forum. This whole scenario further makes people question his political sanity.

Imran Khan possesses all the characteristics of a populist leader and in Populism: A Very Short Introduction, Cas Mudde says: “Populists are dividers, not uniters” they split society into “two homogenous and antagonistic groups: the pure people on the one end and the corrupt elite on the other.” True to this narration, Khan has divided the nation into two groups of ‘Evil and Good’ people, and the consequences are detrimental to the stability of the Islamic Republic of Pakistan.

Conclusion

To sum it all up, Imran Khan, despite his misgivings, his warts, his narcissism, and his unhinged political views, is still able to reach a class of people that have seen Pakistan erode for centuries and consider him the last hope for the country. But he certainly is not the best choice for democracy as his political understanding is ruined by his self-righteous approach. In this manner, he is no better than former US President Trump who incited his supporters to pass on the U.S. Capitol to forestall the peaceful transition of power after his electoral defeat. It is precise to say that Pakistan has fallen into a deep cauldron and only a Magic Wand can heal it at this point. Though Khan has not singularly created this cauldron, he most definitely is exploiting and feeding on it.

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Chattisgarh Elections 2023: Future of United Progressive Alliance and BJP

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Chattisgarh, the 9th largest state of India by area and 17th most populous state with population of 30 Million will go to votes in upcoming elections in 2023. Chattisgarh saw an electoral shift in 2018 when voters chose INC lead United Progressive Alliance over BJP which was into the power since 2003. The legislative assembly comprises of 90 constituencies and population demography favors the Hindu’s with 93.05%, Muslims are major minority with 2.02% and Christians make up 1.92% of the population of Chattisgarh. The major contenders in the elections are United Progressive Alliance, which came into power in 2018. The major parties in the Alliance are Indian National Congress (INC), Dravida Munnetra Kazghagam, Janta Dal (United), Shiv Sena and Nationalist Congress Party. This alliance faces BJP as major gladiator of the Elections.

INC lead United Progressive Alliance Government

In 2018 elections, United Progressive Alliance defeated BJP in the state to form the government. Previously BJP enjoyed three successive tenures in power. The Alliance proved to be vital in defeating the ex-ruling party and Bhupesh Baghel of INC was sworn in as new CM of Chattisgarh. The newly elected government opted for the developmental model in the state with their activities ranging from sports to health and good governance. The CM gave the vision of ‘Employment Mission’ which aimed at providing 15 lac jobs to people of Chattisgarh. The government provided the masses with the vision of ‘trust, development and security’ in order to remain popular and hence their projects based upon wellness of the general public. The CM started ‘Khelbo-Jeetbo-Gadhbo Nova Chattisgarh’ scheme in order to enhance sports infrastructure and facilities for youth of Chattisgarh. The scheme covered major as well as local games. The government also launched ‘ Makhyamantri Haat Bazar Clinics’ scheme in order to provide and ensure health services in rural and remote areas of the state. This scheme received a lot of praises from the masses during pandemic period. Government also enhanced education sector by setting up more than 600 Hindi and English medium schools. CM launched ‘Swami Atmanand English Medium Education System’ in all districts of the state. The scheme aimed at setting up of the English medium colleges for the students. The government under CM Baghel, also faced severe opposition in form BJP. The BJP criticized government of corruption, farm loans and internal rift among government officials. The CM also survived ‘No Confidence Motion’ tabled by BJP in the legislative assembly in July 2022.

BJP and Caste votes

Caste permutation and combinations have always played a role of dominating factor in the state of Chattisgarh. The state is amalgamation of upper castes, schedule castes (SC), Schedule tribes (ST) and Other Backward Castes (OBCs). The Kurmi’s and Sahu’s dominate upper castes in the state. One third of the population is composed of Scheduled tribes (ST), while Schedule castes (SC) make up 12% of the population and Other Backward Castes (OBCs) are 41% of the population. Upper castes and OBCs have traditionally tilted in the favor of BJP. SC votes have been divided among BJP, INC and Bahujan Samaj Party (BSP). In 2013 however, BJP swept through 9 out of 10 constituencies of SC reserved seats. Dalit vote bank also has an influential role in elections. There exists around 12% of Dalit vote splitting between BJP and BSP. This vote bank influences 40 constituencies of the state. BJP is also counting upon Sahu’s votes in order to gain power back in upcoming Chattisgarh elections.

Chattisgarh as home ground of Hindutva

Chattisgarh has seen a violent shift when it comes to application of agenda of Hindutva. RSS and its political affiliate BJP have targeted Chattisgarh for Hindutva onslaught. The norms of Hindu identity have gone deep down into the roots of the society. ‘Ghar Wapsi’ scheme is gaining influence in Chandigarh. In March 2022, a ceremony was held and 1250 people returned to Hindu dharma. In states like Odisha, Chattisgarh and Jharkand more than 10,000 people have returned to Hindu dharma. BJP has developed a narrative of targeting Congress for miseries of Hindu’s all around India. Vishwa Hindu Parishad (VHP) an affiliate of RSS has been provided with security umbrella of BJP and it has forced Churches in Chattisgarh to use name of ‘Acharya’ and ‘Up-Acharya’ instead of ‘Father’. VHP has also forced churches to display images and painting of Hindu goddess ‘Saraswati’ in churches. The organization has also forces churches to distribute ‘Prasad’ instead of sweets at the eve of Christmas, thereby attacking the root identities of Christianity in the state. Around the time when BJP formed the government in center in 2014, 5 villages in Bastar district of Chattisgarh were banned for non-Hindu practices. Hindu leaders in Chattisgarh are calling for killing of any individual who tries to convert Hindus into any other religion. The Equation between the minorities and Hindus started changing since 2003, when BJP was installed into power in Chattisgarh. The change has intensified now when BJP is also present in Center. 

Bet on Youth’s vote

The youth vote bank in Chattisgarh can be the turning point in the upcoming elections. The major gladiators BJP and United Progressive Alliance are eyeing the vote share of youth in the state. The initiatives started by the CM Baghel, progressively targets the youth and their development. However, BJP accuses the current INC lead state government of unemployment among the youth. The tussle between the major contenders in the state is pivoted for Youth vote. The saffron party has also targeted youth with the identity confrontation within the framework of Hindutva. However, the INC lead coalition government is centered on the agenda of developmental and governance model for the youth rather than targeting and convincing youth on identity based vote bank. The youth from minority section of the population may opt for INC and United Progressive alliance for the power in state but saffron influenced youth and upper castes are likely to put their weight in BJP’s favor.

Conclusion

Chattisgarh elections 2023 will play a major role in determining the BJPs future in center as well. Chattisgarh has been the power bank for BJP since 2003 but shift in 2018 has taken BJP by shock and surprise. However, upcoming elections can also prove to be referendum of policies applied by BJP at national level. INC will also have to investigate its depth in masses as well. The future of alliance mostly depends upon the INC performance in the state elections. The General Elections can also be strategically targeted by INC in form of alliance and coalition seat shares in order to give tough time BJP which is by far thriving among the masses at national level.

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