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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 PM’s Saudi affair likely to backfire

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Pakistan’s relations with Saudi Arabia flourished during the previous government headed by Nawaz Sharif, primarily due to his personal business interests in the Kingdom and friendly association with members of the Saudi royal family. Despite the criticism at home, Sharif never missed an opportunity to eulogize the Saudi rulers and support their wrongs.

During Sharif’s tenure as Prime Minister, while Pakistan’s ‘love affair’ with Riyadh blossomed, relations with Tehran plummeted. When the ambitious gas pipeline project was shelved by the Sharif government in 2015 under the Saudi pressure, some experts couldn’t resist the temptation of reading the obituary of Iran-Pakistan friendship. It seemed game over.

But the political transition in Islamabad this year rekindled hopes of a new foreign policy taking shape in Islamabad under the populist premier Imran Khan.

In his victory speech, Khan made it categorically clear that he would like to strengthen ties with allies in the Middle East, including Iran and Saudi Arabia. During his first meeting with the Iranian envoy to Islamabad, Khan reiterated his desire to bolster ties with Tehran and revive important projects that had been put on the backburner by the previous political dispensation, including the gas pipeline.

Experts termed it a “significant shift” in Pakistan’s foreign policy as his predecessor was seen overtly inclined towards stronger Pakistan-Saudi relations than Pakistan-Iran relations. Writing in The New Arab, Dr. Fazzur Rahman Siddiqui, a fellow at Indian Council of World Affairs, said with the exit of Nawaz Sharif, Saudi Arabia had lost a reliable ally who never concealed his affection for the Gulf states in general, and Saudi Arabia in particular “for both personal and strategic reasons.”

It was widely believed that Khan’s approach will be different from Sharif and he will not yield to covert pressures from Washington or Riyadh. At least that is what appeared.
When Khan embarked on his first foreign trip to Saudi Arabia, keeping alive the tradition set by his predecessors, he sought to underscore that Riyadh will remain a priority for Pakistan’s foreign policy. Pertinently, it was President Hasan Rouhani of Iran, not King Salman of Saudi Arabia, who first extended an invitation to him.

But the faith in his leadership or his vision for ‘Naya Pakistan’ (new Pakistan) was not yet dented. The massive army of his followers on Twitter ensured that the public opinion, or at least the opinion of netizens, was firmly in favor of his leadership and policies.

As the country’s fiscal deficit inflated to 6.6 percent of gross domestic product (GDP) in the 2017-2018 financial year, Khan panicked. He boarded the plane to Riyadh again, this time to seek funds. To woo the Saudi rulers, Khan said Riyadh had “always stood with Pakistan in difficult times and the Pakistani government and its people highly acknowledge it.”
Speculation had been put to rest. Khan was walking in the footsteps of his predecessor.

Following his second visit to Riyadh, Saudi regime announced $6 billion in financial support to Islamabad. It corresponded with the international outrage over the cold-blooded murder of Saudi journalist Jamal Khashoggi. Even as many world leaders boycotted a Saudi investment conference, the so-called ‘Davos in the desert’, over Khashoggi’s death, Khan attended the event.

On asked why he attended the conference when many other world leaders had turned down the invitation, Khan said Pakistan was “desperate” for Saudi loans to shore up the flailing economy.

“Unless we get loans from friendly countries or the IMF, we actually won’t have in another two or three months enough foreign exchange to service our debts or to pay for our imports. So we’re desperate at the moment,” he was quoted saying by the Middle East Eye.

Khan conceded that his immediate foreign policy priority was maintaining good relations with Saudi Arabia despite unprecedented outrage over Khashoggi’s murder by Saudi officials or the outcry over Saudi’s horrendous war crimes in Yemen.

Pakistan, which had previously maintained a neutral stance on Yemen war, might now be forced to support the Saudi onslaught there, some observers fear. If Khan can ignore a reprehensible crime like the killing of Khashoggi because of Saudi petrodollars, it can be expected that he will support the Saudi war crimes in Yemen also, although he has so far resisted doing that.

While Khan has adopted a strong and unwavering stance against the US, he seems to have succumbed to the temptation of being subservient to the Saudi Kingdom, for funds. That is where he risks losing the goodwill he has earned back in Pakistan and in the international community.

At a time when the world is saying ‘no’ to Saudi Arabia, Khan is part of a tiny minority that is going against the tide. This approach will only isolate Pakistan and it has isolated Riyadh and Washington.

Being subservient to Saudi interests also means that Khan will be forced to toe his predecessor’s line on Iran. If that happens, Islamabad will again be forced to shelve the gas pipeline project, which is being described as critical to Pakistan’s energy requirements.

Khan is walking a tightrope. Wisdom lies in taking informed decisions in the best interests of Pakistan keeping in view long-term goals. In the cricketing terminology, the cricketer-turned-prime minister could do well by playing the forward defensive shot rather than the mistimed stroke in the air.

First published in our partner MNA

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Pakistan a peace loving nation

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Muslims when meeting each other greet “Peace be upon you”. Islam is the religion of Peace and Love, Islamophobia is the creation of a few minds only. There is no doubt that there exists few criminals in every society, every religion, and every country, but such exceptions, may not be used to blame the whole nation, religion or country. Since its independence Pakistan has been promoting peace and stability around the world. Pakistan’s Peace-keeping missions have been playing important roles around the world to maintain peace in troubled areas. We are major contributor to Peace-Keeping Force and have been part of almost all of UN Peace-Missions, during the history of 7 decades. Pakistan is supportive of any efforts by any nation towards promotion or maintenance of peace.

Recently, UNGA’s Disarmament Committee adopted Pakistan’s resolutions with an overwhelming support, in New York on 9th November 2018. Three resolutions proposed by Pakistan were adopted by the UN General Assembly’s First Committee with an overwhelming support. The whole world supported Pakistan’s resolution while India was the only country to oppose them.

In fact, the resolutions highlight the importance of regional approaches to disarmament, which complement global disarmament efforts and stress the need to promote confidence building measures for enhancing regional and international peace and security. The resolution on conventional arms control was adopted by a large majority of 179 countries. India was the sole country to vote against the resolution.

Earlier, a big victory for Pakistan came, on November 1stwhen the Committee also adopted Pakistan’s resolution on assuring non-nuclear weapon states against the use or threat of use of nuclear weapons by 122 votes. The First Committee of the UN General Assembly which meets annually deals with disarmament, global challenges, and threats to peace that affect the international community and is mandated to seek solutions to global security challenges by considering all disarmament and international security matters within the scope of the UN Charter. Pakistan’s role in disarmament was admired and non-proliferation of uranium. We strongly condemn biological and chemical weapons and strictly adhere to UN decisions.

Pakistan is a responsible country and always exploring the opportunities of peace. Pakistan has always initiated the peace process with India and sincerely tried best to resolve all issues with India, including Jammu and Kashmir, by a peaceful dialogue. Pakistan respects UN, Respect UN mandate, Respect UN Charter, and wants others to do the same. It believes in diplomacy, and there is precedence that some of the more complicated issues around the world, has been resolved by diplomacy, then why not Pakistan-India issues be resolved by dialogue too.

We support the supremacy of UN and all nations must respect the UN. We always stand with the oppressed and raise voice for the victims. Our struggle for justice and righteousness is always admired. We keep on struggling for global peace and be part of any peace process around the world.

The Indian opposition to Pakistani resolution and persistent refusal to leave Kashmir has exposed the true Indian face. The recent International Amnesty report on Human Right violation in Kashmir was a big blow to India. Indian atrocities against its own minorities and lower caste Hindus is condemned widely. Indian opposition to the UN resolution on Palestine is also an example of India’s international position.

It is time that serious notice is taken by the UN, International Community and all conscious individuals to stand up for International Peace, Justice and Human Rights.  We all should keep on struggling for a better world for our next generation. We should be united for “Peace, Stability and Prosperity” for humanity globally.

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The Making of Modern Maldives: A Look at Maumoon Gayoom

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Authors: Srimal Fernando and Pooja Singh

Former Maldivian President Maumoon Gayoom occupies an important place in Maldivian political history largely because he guided this equatorial island nation to unprecedented levels of economic growth and also through tough times when democracy was challenged. Gayoom has a national as well as international reputation that made his name familiar to the rest of the South Asian countries. It was after his return from Nigeria’s Ahmadu Bello University as a lecturer, Gayoom commenced his political journey as a close aid of prime minister Ahmed Zaki in mid-70’s and later as a cabinet minister under Ibrahim Nasir. Gayoom’s leadership embarked on a more reformist approach in the first two terms during his presidency. He was able to take credit for the rise of the tourism sector and an increase in the fish productivity. In Male, as well as in the rest of the Maldivian islands, building of small fisheries harbors were accelerated under the rapid development programs initiated under his presidency. When one looks at the Maldivian foreign policy, Maumoon was credited as one of the key founders of the South Asian Association for Regional Cooperation (SAARC) in 1985. Hence, he raised global awareness on climate change on the international arena. In this context, especially the awareness on small island nations facing rise in sea water levels which affects the livelihood of the islanders was a key theme which brought international attention. On the development side, the Hulhulemale reclamation project and the upgrading of roads and other infrastructure initiatives that he implemented are highly credited for by the Maldivians. In fact, the people’s president who visits the islands regularly was named as “A Man for All Islands” by the famous author in his book about Gayoom’s biography.

Early in his administration, former president introduced socio-economic experiments in reawakening the islands. His administration accelerated the economic growth in the twenty Atolls from Northern Haa Atoll to Southern Seenu Atoll instilling a degree of optimism and enthusiasm among the Maldivians. Yet another economic achievement in the tourism sector was the increase of luxury resorts from two in 1978 to hundred by 2008. Gayoom’s career is most relevant due to his performance and for changing the country’s political system to a multi-party democratic system where the power is vested on the citizens.

Another milestone during his tenure was to expand the average income of Maldivians from US$ 377 in 1978 to US$3,654 in 2008. However, towards the end of his presidency, the first signs of irreconcilable difficulties with the Maldivian opposition led by Mohamed Nasheed, the leader of Maldivian Democratic Party (MDP) started emerging in 2000. The Maldivian pro-democracy movement started in Male in 2003 and then moved to other Islands. As a result, Maldives adopted a multi-party political system and in 2008. In the same year the presidential campaign came to a climax where in the second phase of the presidential elections, the confident president had felt a constant sense of uncertainty since most of the opposition presidential candidates supported Mohamed Nasheed, the leader of the Maldivian Democratic Party. Gayoom lost the election and Nasheed the opposition leader assumed presidency.  The courageous former president Gayoom transferred the presidential powers to the newly elected president smoothly.

In fact, the reformist former president Gayoom formed the Dhivehi Rayyithunge Party and later, he was one of the key founders of the Progressive Party of Maldives (PPM) where his half-brother, Yameen Abdul Gayoom shared powers within the party. Hence, Qasim Ibrahim, a former finance minister under Nasheed’s government and also close confidant of president Gayoom led the Jumhooree Party (JP) which combined with PPM in 2013 presidential elections.

Unfortunately, in 2012 the overthrow of president Nasheed one of New Delhi’s closest allies in South Asia shocked the diplomatic circles on both sides of Asia as well as in the west. It took more than five years for Gayoom’s PPM party under the presidency of Yameen to return to power. However, due to widespread corruption and authoritative rules under Yameen’s presidency, many of the opposition party members such as former Maldivian president Nasheed, Jumhooree Party leader Qasim Ibrahim and many other political leaders who opposed the undemocratic rule were prisoned through unlawful means.

During the darkest period of the Maldivian politics from 2017 to September 2018, the lone voice of the public opposition belonged to a few opposition leaders such as, Maumoon Abdul Gayoom, Ibrahim Mohamed Solih cannot be forgotten. In the same period, former president Gayoom, Nasheed and several opposition members created a united opposition to unseat president Yameen and his majority party rule through democratic non-violent means. One of the major reasons for this change by Gayoom in Yameen’s leadership was the widespread corruption and the authoritative rule. Finally, president Yameen prisoned former president Gayoom and his son, Faris Maumoon. This was one of the main reasons where large number of Gayoom supporters broke away from PPM led by president Yameen. This reason influenced the 23rd September 2018 presidential elections where opposition common candidate Ibrahim Solih saw a massive victory margin against president Yameen.

One could argue that, Gayoom, the president who guided Maldives to economic prosperity was the same charismatic leader who guided the South Asian Island nation towards democratic maturity. Maumoon Gayoom has been the most unpredictable political influencer in the modern political making of Maldives.

*Pooja Singh, a scholar of Masters in Diplomacy, Law, Business at Jindal School of International Affairs, India.

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