Kashmir’s case in International Court of Justice

Kashmir’s case in International Court of Justice

Jurisdiction is the authority given by law to a court to administer justice amid parties before it. This is the primary ingredient of a court’s power to adjudicate and determine the dispute. This power originates from the law, and can only be used within the four corners provided by law. Under the United Nations’ umbrella, we have the International Court of Justice (hereinafter referred as ICJ) as its ‘principal judicial organ’. Amid Kashmir’s issue, voices can be heard, inciting Pakistani authorities to knock the door of this court. But before to take a step, a wise man thinks twice. In this regard, there are two paramount questions: whether ICJ has jurisdiction over the matter; and whether, in such a great haste, will it be a fruitful step to knock ICJ’s door at this juncture? Or as by moving to the ICJ, are we giving to the world—especially the Security Council primary responsible institution—by making the matter subjudice, another chance to put it in obscurity? These questions can be analyzed by the anatomization of ICJ’s jurisdiction.

Foremost, the issue with regards to its jurisdiction is that most of the matters are invariably intertwined with political factors, and this impedes the proper functioning and role of the court. And in Kashmir’s case, India may raise various objections; for example, preliminary one with regards to the jurisdiction under governing treaties, Shimla Agreement 1972 and the Lahore Declaration 1999. One may argue here, it has the jurisdiction because in the event of contradistinction, as per article 36(6) of the ICJ’s statute, the court will decide it, whether it has jurisdiction or not. But do we have time for this? Can we let Kashmiris to suffer, and put the matter subjudice for an uncertain period of time, just for the decision on a preliminary issue of jurisdiction? It might be that what India’s want, so avoid to take the bait, irrationally.

Moreover, unlike the jurisdiction at the domestic level wherein the grundnorm remains the same; in the international arena, things are different. ICJ exists in a myriad of international organizations and states; each is pursuing its own goals, keeping in due regards to their personal interest. Consequently, how the hopes can be the same as one has from the domestic court system. Furthermore, ICJ’s jurisdiction is mainly two-fold: one is its contentious jurisdiction, wherein it decides disputes of a legal nature that are submitted to it by the states; and the second one is its advisory jurisdiction, wherein it gives advisory opinions on legal questions at the request of the organs of the United Nations and specialized agencies. Although at this juncture we can opt among both jurisdictions, yet rest must be assured that it will not prove to be a wild goose chase.

In Kashmir’s case, it can be argued that under article 36(1) of the statute, the court has ‘compulsory jurisdiction’ over the matter “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”. Further, with the concurrence of India, under article 36(2) it also has a jurisdiction, to interpret a treaty i.e. Shimla Agreement 1972 and the Lahore Declaration 1999; to answer a question of international law, like whether India’s jingoistic step of revocation of article 370 and 35A of its constitution, is a violation of principles of international law, and would it constitute a breach of an international obligation? Despite of this argument, with regards to words ‘Compulsory Jurisdiction’ there is a great debate over the area. According to Prof Kelsen; “Article 36 (2) is not in fact Compulsory jurisdiction because for the creation of such, as well, the prior consent of the parties is necessary”. Moreover, the decision in its contentious jurisdiction is binding only on the parties at the dock, not on the third person. As per article 34 only states can be the parties before it; then what about Kashmiri people’s right to be heard, as private person cannot be a party to it. Will we leave them behind in this journey to justice?

On the other hand, the conundrum with regards to its advisory jurisdiction is that it lacks binding force because there are no parties before it. As per article 65 of the statute, it can give advisory opinions—which carries not much weight with it—over a matter involving legal question in the realm of international law. These opinions are given by ICJ, on the request of authorized bodies; which bodies, this is still a debate. One may argue that as per article 96 of the Charter, General Assembly and Security Council can forward the matter to ICJ’s advisory jurisdiction. The issue is not, whether they can do it or not; the issue is, why would they do it? Besides, this is also crystal clear that the purpose of its advisory jurisdiction is not settlement of dispute, but to offer advice over the international legal disputes. Surely, India’s radical mindset at the helm will not accept any such offer. Furthermore, ICJ itself avoid to take central disputes in its advisory jurisdiction, so it is absurd to think Kashmir’s dispute settlement in this jurisdiction.

Above terse discussion suggests that the ICJ will only exercise its jurisdiction over a Kashmir issue with India’s consent. Further, it cannot decide upon legal rights of Kashmiri indigenous people because private persons cannot be a party before it, only states can do. In addition, its jurisdiction is in personam not in rem, then whether all interested states should be engaged as parties to this case, like China. Besides it, two governing treaties Shimla Agreement 1972 and the Lahore Declaration 1999 also do not welcome ICJ’s jurisdiction over Kashmir’s dispute. Last but not least, it is pertinent to hold fast in mind that currently, the matter is in limelight—and what if after its pending adjudication before the ICJ, the world gets another chance to put it again in obscurity. As it is of no use to cry over spilt milk, therefore, it is high time for Pakistan’s legal fora to reappraise the decision to take the Kashmir’s dispute in the ICJ. 

Hafiz Muhammad Azeem

The writer is a lawyer and teaches law.