Kashmir is a simmering cauldron. `Indian Home Minister Amit Shah proposed in parliament to scrap Article 370 of the Indian constitution, saying Jammu and Kashmir will be separated into two Union Territories i.e., J & K with legislature and Ladakh without any assembly (Indian wire dated August 5, 2019). Since the decision, the occupied Kashmir has been under curfew, lockdown, and diurnal and nocturnal cordon-search operations and arbitrary detentions and killing. Verily, some international organisations like Genocide Watch, expressed grave concern about plight of the imprisoned Kashmiris. President Trump of USA made an abortive attempt to mediate the two neighbours at daggers drawn. Thereafter, Pakistan’s prime minister decided to approach International Court of Justice, if law ministry approved his proposal. `The PTI leader stated that a man named Ben Emerson was introduced by a cabinet member to Prime Minister Imran Khan who advised him that Pakistan could sue India under the genocide convention. Later, the foreign minister came out and told the journalists that the government was going to the ICJ (Express Tribune dated August 21, 2019). Pakistan’s law ministry was `divided’ as to approaching the ICJ. Tribune dated August 21, 2019 reported, `Later, when confirmed, it was found that Emerson was a rapist and knew nothing about the international law’. Ben Emmerson QC was accused of sexually assaulting a woman in a lift in September 2016. He denied misconduct and was `cleared by Judge Sir David Calvert-Smith without hesitation’. (Daily Mail, UK, July 13, 2011)
Reaction
Ahmer Bilal Soofi, whose name is always prefixed as `the international law expert’ in media said, “Any attempt by India to change the existing constitutional arrangement of Indian occupied Kashmir will be a violation of international law and UN-mandated obligations’
(Indian wire dated August 5, 2019). Soofi reportedly cobbled up the legal team that lost Reqo Diq case. The International Center for Settlement of Investment Disputes imposed a penalty of $5.8 billion on Pakistan. In a 700-page ruling the Centre awarded $4.08 billion penalty and $1.87 billion in interest to Pakistan. Add to it Pak-paid legal fees of Rs 100 million (Friday Times dated August 2, 2019). Pakistan causing loss of billions of dollars to Pakistan .Ironically, Emerson founded the Queen’s Chamber whose team made Pakistan bit the dust. British media questioned Emerson’s credibility’. Though acquitted he was accused of groping a female colleague in the lift. He defended Julian Asange (protected by Pak prime minister’s divorced wife Jemima) in a sexual assault case. Media portrayed Emerson’s bizarre explanation of accidental puncturing of Asange’s condom. One may conjecture that Emerson sneaked into Pak prime minister’s house and found an ear because of Jemima’s good-faith help.
India’s defence line
Let Pakistan be mindful of India’s defence line. India would invoke jus cogen `clasula rebus sic stantibus‘, things as they stand, or fundamental change of circumstances. India would plead that UNO resolutions stand antiquated under afore-quoted principle. In the case of a `fundamental change of circumstances’, that existed when a treaty was concluded, a party to that treaty may invoke this fact as a ground for terminating or suspending operation of a treaty. The principle stands codified in Article 62 of the Vienna Convention on the Law of Treaties. Para 3 of the Convention, codifying the principle of rebus sic stantibus, states `If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty, it may also invoke the change as a ground for suspending the operation of the treaty’. India may plead it could not hold plebiscite as Pakistan did not pull back all its forces as stipulated by the UNO. India may plead Simla Agreement of 1972 has superseded the UNO Resolution of 1948 (envisioning exercise of the right of self-determination) on the basis of the principle `lex posterior derogat priori’, later treaty abrogates the earlier one’. The principle is enshrined in Article 59 of the Vienna Convention on the Law of Treaties.
India could invoke Article 1(ii) of the Simla Accord which states `That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them. Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations.
Pakistan could argue that by revoking Special Status of Kashmir, `unilaterally altered the situation’ `detrimental to the maintenance of peaceful and harmonious relations’. Pakistan may ask: `What about the words `pending the final settlement’. But, again, India may retort that the point could be settled bilaterally without intervention by the ICJ.
There are two in ICJ statute under which, Pakistan can take Kashmir issue to ICJ. One is Article 36 (1) and the second is Article 36 (2). As far as Article 36 (2), India may assail the ICJ’s jurisdiction on basis of its declaration on September 18, 1974. The ICJ is barred 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).
Malafide revocation of `special status’: Indian courts relied on Article 370 (3) as also in case, Sampath Prakash and Santhosh Gupta, to suggest that the IHK’s-constitution provision continues to be in existence. The provision could cease to have effect only when Indian President made a public notification to the contrary, subject to the condition laid down in clause 3 of IHK’s Constitution, i.e. recommendation of the IHK’s Constituent Assembly. The IHK’s High Court in Ashok Kumar’s case went one step further and observed that the provision cannot be abrogated even using the amending powers of the Parliament under Article 368. The reference to Article 368 and the fetters on it is indicative of how a lot of people have come to view Article 370 as a basic feature of the Constitution. But, India may shrug off arguments saying that Kashmiris accept jurisdiction of India’s supreme Court to review revocation of Article 370.Although India’s Supreme Court alluded to Article 370 as permanent, it never clarified what ‘permanent’ actually means. None of the Supreme Court’s decisions explicitly equated such permanence to the Article being a basic feature. Also, unlike the IHK’s High Court, the Supreme never mentioned any bar on the amending powers of the Parliament in these decisions.
ICJ’s opinion advisory
ICJ”s opinion would be of certiorari, declaratory or advisory nature, not of mandamus, mandatory nature (as was the case in Chagos Island). The Court may take eons to pronounce even an advisory opinion. And, India would use every trick of trade in legal cook-book to delay the case. Under Article 36 of its Statute, which lays down jurisdiction, the ICJ can only make a declaration which it has to forward to the United Nations’ Security Council for implementation. Thus, Pakistan may have to recoil to square one.
What to do?
Pakistan’s foreign office in tandem with media should portray Kashmir prison in foreign media and before foreign governments. The government-opposition stasis should give way to dynamic cooperation. The opposition’s grievance of being under witch hunt should be redressed.
Inference
Fools rush in where angels dare not tread. Pakistan’s government should take Ben Emerson, Queen’s Chambers’s advice with a pinch of salt. If at all, Pakistan goes to World Court, it should not fall back on old Reqo-Diq legal team. In fact, the Reqo Diq Judicial Commission should ferret out Ben Emerson’s connection to Reqo Diq’s legal team. The legal costs of Reqo Diq and Kalbushan Jadhav cases should be made public under freedom-of-information laws.
