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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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South Asia

Importance of Analysis of Major Events of Pakistan

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Pakistan in the past 74 years of independence has gone through events some of which have even changed its geography as well as demography but thorough, honest, unbiased and transparent analysis have either not been carried out and if done recommendations have not been implemented in letter and spirit and defaulters have not been awarded penalties. In most cases lessons have not been learnt and corrective actions taken. Almost similar mistakes are being repeated. Aldous Huxley, an English writer said, “Reality cannot be ignored except at a price; and the longer the ignorance is persisted in, the higher and more terrible becomes the price that must be paid.

Soon after independence, the Quaid emphasized upon the constituent assembly to frame the constitution on priority. It passed the objective resolution on 12 March 1949, the main point being Pakistan shall be federation, wherein the state shall exercise its powers and authority through the representative of the people; the principles of democracy, freedom, equality, tolerance, and social justice as enunciated in Quran and Sunnah shall be fully observed. Subsequently four committees to frame constitution submitted their reports which could not sail through the assembly mainly because equal representation was proposed to both wings, East and West Pakistan whereas the population as per censuses of 1951, former had 42.0 and the later 33.7 million. The third draft, Muhammad Ali Bogra formula which was considered most appropriate proposed bicameral legislature, lower house based on population, total 300 seats (E Pak 165, 4 units of W Pak 135). Upper house to consist of 50 seats to be divided into 5 constituent units (10 each, E Pak, Punjab, NWFP, Sindh, Balochistan). In the meantime, Ghulam Muhammad, the Governor General (G G) dissolved the assemblies on 24 Oct 54, his decision was upheld by the Supreme Court (SC) headed by Justice Muhammad Munir under the law of necessity. Thereafter, PM, Muhammad Ali took the task of framing the constitution and Hussain Shaheed Suhrawardy of Awami League (PM from Sep 56 to Oct 57) agreed to E Pak and W Pak both as one unit, unicameral legislation, national assembly, 300 seats having equal representation. The first constitution was promulgated on 23 March 1956. In the first eight years of independence the constitution could not be framed, mainly because of denying democratic rights to East wing which were explicitly mentioned in the objective resolution. The same mind set prevailed which led to dismemberment of Pakistan in December 1971. Similarly, the precedence set to uphold the decision of GG under the law of necessity was followed subsequently in 1958,1977 and 1999. If we had capital punishment in the constitution of 1956, 1962 similar to article 6 of present constitution, that, “Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.”  It may have deterred the adventurous minds. It is pertinent to mention that, the Martial Law imposed by Gen Yahya Khan in March 1969, was declared usurper by the Supreme Court. Justice, Hamood ur Rehman had written in Asma Jilani case (PLD 1972 SC 139) that Gen Yahya Khan had no authority to abrogate, but no action was taken against any one. In short Pakistan has been governed by five constitutions (twice by the India Act of 1935, 1956, 1962, and 1973 in vogue), and four martial laws (1958, 1969, 1977, and 1999), and once emergency was imposed by Gen Pervez Musharraf, acting as Chief of the Army Staff, on 3 November 2007, and issued a Provisional Constitutional Order (PCO). This was declared illegal by SC, the case was tried in the court of law, the punishment was awarded, but the final decision by the SC is pending.  Four times elected governments were dismissed under article 58, 2(b) of the constitution, which gave discretionary powers to the president to dissolve the elected government. This clause has been finally removed by 18th amendment on 8 April 2010. It is pertinent to mention that Indian constitution was promulgated on 26 January 1950 and it has never been abrogated or held in abeyance. If we had carried out sincere analysis by committees or commissions comprising all stakeholders soon after the occurrence of events, we may have reached a workable solution of governance. The present constitution has undergone through many amendments. If more changes are required that can be done by the parliament. The need of the hour is to follow constitution in letter and spirit.  Make the three pillars of the state, judiciary, legislation, and administration strong. All other institutions are required to work strictly under the constitution, rules, regulations, and the oath taken by various authorities/personalities.

2.The 1965 war between India and Pakistan started on 6 Sep and cease fire was accepted by Pakistan without achieving desired objectives on 22 Sep. As per Tashkent declaration of January 1966 mediated by Ex USSR and signed by President Ayub Khan and Indian PM, Lal Bahadur Shastri our troops had to go back prior to 5 August 1965 positions (prior to start of war). We must have carried out through analysis at all level by the concerned political and military authorities and taken necessary actions. This would have certainly avoided Kargil battle of 1999 which also concluded without achieving desired objectives. Infect it resulted political crisis at home and tarnishing the image of Pakistan abroad.

3.The rule of Gen Zia is criticized from many angles. India occupied Siachen glacier in 1984 and his reaction was lukewarm. It is believed that he had created a political force to curtail the influence of PPP especially in the urban areas of Sindh like Karachi, Hyderabad and Mirpur Khas. The short gains impressed the rulers. Subsequently this party was not in the control of its creators; infect it turned against the security and law enforcing authorities. If we had carried out complete analysis of the prevalent problems at that time and tried to solve these politically; the incidents of losing life of many innocent people may have been avoided. Instead of learning a lesson, dharna of TLP, a political party of 2017 at Faizabad was supported by some political opponents of government at that time and intelligence outfits. The verdict of Qazi Faez Isa (Sup Moto Case 7/ 2017) is relevant. He had given details of the case and recommendations.   One of the recommendation is “The Constitution emphatically prohibits members of the Armed Forces from engaging in any kind of political activity, which includes supporting a political party, faction or individual. The Government of Pakistan through the Ministry of Defense and the respective Chiefs of the Army, the Navy and the Air Force are directed to initiate action against the personnel under their command who are found to have violated their oath.” Hardly any action has been taken. In the verdict, the case of 12th May 2007, when the deposed Chief justice was scheduled to visit Karachi and he was not allowed has also been mentioned. The roads were blocked with containers. A total 55 people were killed and hundreds suffered bullet injuries.  It says that “When the State failed to prosecute those at the highest echelons of government who were responsible for the murder and attempted murder of peaceful citizens on the streets of Karachi on 12th May, 2007 it set a bad precedent and encouraged others to resort to violence to achieve their agendas.” This clearly indicates that in the past we have not been analyzing each and every event and taking the required actions therefore, the conditions are deteriorating. In the recent incident, a Sri Lankan national Priyantha Kumara was brutally beaten to death on 3 Dec 21 over blasphemy allegations at the factory in Sialkot where he worked as a manager. The mob then dragged his body out on the road and set it on fire. This incident has tarnished the image of Pakistan all over the world. It is indeed a day of embarrassment for Pakistan. However, government has assured that strict action shall be taken against culprits. All the major political parties, renowned religious leaders have condemned this episode. The importance of blasphemy law cannot be denied. However, the wrong use of this law is becoming common which needs to be checked with iron hands. This is not first such incident. Mashal Khan was lynched by his fellow students in 2017, Shama and Shahzad Masih were burnt alive in the brick kiln in 2014. We need to take such incidents very seriously. Those who take law and order in their hands should be given exemplary punishments so that such incidents are not repeated. The need of the hour is to sincerely carry out analysis of each and every event by the committees of experts in the respective fields, stakeholders, and take necessary action without fear and in the national interest. This sovereign state has been bestowed upon us by Allah Almighty, it is our duty to preserve it intact. The peace and tranquility is paramount for the progress of Pakistan.    

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Bangladesh’s Vaccine Policy: Cooperation beyond Geopolitical Lens

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photo: UNICEF/Vinay Panjwani

Since its outbreak, the COVID-19 pandemic has led to unprecedented devastation to every nook and corner of the world. Not being just a cataclysmic health crisis, the pandemic is subtly but substantially reshaping social norms, economic systems, diplomacy way-outs, as well as global leadership and rivalry. As of now, experts believe that this deadly virus is not going to completely disappear overnight rather will remain as a recurring event like the normal flu virus. However, acquiring herd immunity which insists on mass inoculation is the most acceptable solution to combat the worsening situation.

The world is becoming unable to meet the demands of the massive number of vaccines as only a handful of wealthy nations are producing them. In the wake of the current condition, every country, either rich or poor has its own game to play, rich ones for achieving so-called ‘vaccine nationalism’ and the poor ones for maintaining proper channel to procure them. As if conquering the pandemic bears testimony to not only a country’s economy and resources but also its strategy and diplomatic prudence.

By now, it is evident that Coronavirus traits are very complex as unpredictable mutations of it can jump back and forth across the globe. Today’s successful COVID-19 players might be a victim of tomorrow’s worst-hit outbreaks. For instance, the overconfidence emanating from India’s temporary triumph over vaccine manufacture caused sufferings for more than 90 countries. It is understandable why India’s worsening situation led to the failure of delivering 30 million vaccine doses as per a deal with Bangladesh. However, it was unfair not to deliver even a single dose after the sudden halt on vaccine export, for which Bangladesh has paid in advance.

Due to some unavoidable factors, for Bangladesh, Serum was the only feasible and proximate option for vaccines. Firstly, Bangladesh continued consistent efforts to keep all the alternate options simultaneously within the reach. Some of the vaccines like Pfizer and Moderna require extremely cold refrigeration which in terms of both storage capacity and commercial viability is untenable. WHO/GAVI backed initiative COVAX Facility has been proved inadequate to respond to the demand worldwide equally. Secondly, due to long term and consistent G2G liaison between Sheikh Hasina and the Modi Government, Bangladesh ranked the Indian source at the initial ladder. But it didn’t mean Bangladesh subsequently closed other avenues for future exigency. Thirdly, India’s initially successful ‘vaccine diplomacy’ was so overwhelming that it seemed India was just a step behind from becoming a ‘vaccine hegemony’ worldwide.

Over the sudden upside-down flip of India, Bangladesh had to make desperate diplomatic efforts to procure vaccines for which China and Russia nodded positively. Bangladesh inked a non-disclosure deal of 15 million Sinopharm doses with China. Also, Bangladesh received two consignments of 1.1 million of Chinese Sinopharm doses as gift. Up until now, Bangladesh is hopeful of joining to the China-led initiative of vaccine storage facility and collaboration with Russia to produce Sputnik V locally.

In such a pandemic situation when co-operation is urgent rather than competition, geostrategic gambit should not predominate in the South Asian region which is home to around 25% of the global population. As for Bangladesh, being densely populated with a population of more than 170 million, it is highly vulnerable to the risk of COVID-19 expansion and mutation due to acute intra and inter-regional people to people contact, if this particular region remains less inoculated. Currently, Bangladesh only needs 1.6 million AstraZeneca doses to continue the inoculation program that kicked off on February 7, 2021. Also, a burgeoning economy like Bangladesh, can afford to purchase sufficient vaccine doses as well as manufacture them locally. Not only that, Bangladesh should be called for particular attention for a full-fledged vaccine production scheme, as COVID-19 vaccines are considered as ‘global public goods.’

Despite not having a remarkable health policy, so far, Bangladesh has responded much better compared to other countries in South Asia regarding COVID-19 management. However, the condition might flip over uncanny circumstances anytime soon. Therefore, any vaccine procurement initiative should look through the prism of exigency, not preference for their allies, as downpour of misery on one corner is a failure to the entire globe.

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Looming Humanitarian Crisis – Millions May Die in Afghanistan

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A mother and her child in the Haji camp for internally displaced people in Kandahar, Afghanistan. © UNICEF Afghanistan

There is a dire need for massive funds transfer to Afghanistan in present circumstances where banks and businesses have collapsed, the hunger crisis is also rising while the prices of basic commodities like shelter, fuel, and food have increased. There is a clear warning from World Health Organization (WHO) that within one year over 3 million children may suffer from malnutrition. UN World Food Program has also issued multiple warnings of deteriorating food insecurity in Afghanistan. The Winter season will also become too risky for the survival of one million children as the temperature will drop to an extremely low level. 

There are numerous cases of acute shortage of money, where families are compelled to even sell their babies and daughters as child brides. Public hospitals are facing a shortage of medical equipment; the nurses and doctors are not paid prompting them to quit. The majority of Afghans want to move to other countries for life security and a better future. Heavy human traffic from Afghanistan has gathered on borders with Iran and Pakistan. UNHCR has called on authorities of Afghan neighboring countries to cease the forced return of Afghans, noting that many of them may require refugee protection.

The private sector, which works for the progress of the country, has halted due to uncertainty. There is a serious and shocking analysis by UNDP that by July next year 97% of the Afghan population may fall under the poverty line. Millions of people are living hand to mouth and will face harsher economic crises due to troubling economies. 

Even $1.29 billion aid, recently announced from US and EU for Afghanistan & its refugees living in surrounding countries cannot solve the economic crisis permanently. This aid will only be able to postpone the human disaster for some time but it is not a permanent solution.

The world’s best economists are constantly warning that the present economic situation will lead to anarchy and chaos in Afghanistan. Abdallah Al Dardari, UNDP’s Afghanistan head, said, “I’m comparing Afghanistan with Venezuela, Lebanon, and so on; we haven’t seen such an immediate, abrupt drop”.

After the Taliban took control of Afghanistan, the first step by the Biden administration was to freeze the $9.5 billion foreign reserves. Taliban recently called on the US delegation in Doha for the unconditional and immediate unfreezing of Afghanistan’s financial assets.

IMF has also warned that this year Afghan economy will get contracted to 30%. During Ghani’s government, US aid accounted for 75% of the government budget and 45% of the country’s GDP. The majority of sectors of Afghanistan were run by foreign aid including a majority of public-sector jobs in the medical, teaching, policing, and legal sectors.

From the last few months, the life of millions of daily wagers/ working class has become hopeless. They gather in various downtowns for the sake of work but as the construction industry has halted so they get back without getting any work. They are unable to buy food for themselves and their families and live miserable lives. Another fact of the matter is that Afghanistan has long been dependent on imports of basic utensils.

In Ashraf Ghani’s government, the Afghan economy was fragile because of poverty and corruption. Customs, administration, and traffic officers, who have gone unpaid for months, are asking for more bribes. Things have become highly disorganized in all segments of the country.

Taliban have placed withdrawal limits on currency ranging from 200-400$ per week to counter complete currency collapse. Taliban have appealed to fill its billions of dollars vacuum from Qatar, Turkey, Pakistan, and China. Taliban are also pressing the US for the release of its frozen funds and they think that the humanitarian crisis in Afghanistan is increasing as a result of their frozen funds. Afghans are facing a shortage of crucial goods due to trade disruptions and the collapse of financial services which have supplemented traders’ woes that depend on U.S. dollars and bank loans for imports. Issuance of sanctions’ exemption, by the Biden administration at the end of September to ease out the process of aid, is still not enough.

Afghan interim government has to find the best economic team from inside and outside the country which should be able to bring some fruitful strategies and planning to solve this economic crisis. The International community needs to come together to join hands with the Afghan interim government to avoid the worst-case scenario in Afghanistan. The international community should also play its role in bringing “explicit humanitarian exemptions” for the delivery of aid to prevent a “catastrophe”.  Watchdogs like UNSC and the US government should do their utmost to raise the living standards of the Afghan people.

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