ICJ’s advisory jurisdiction

 

India’s egregious occupation of the Kashmir Valley, in stark violation of international law was not a surprise to those who had seen the BJP’s manifesto on which Mr Modi contested elections. Although one did wonder how India would be able to trample all over the UN’s 70 years old record and with what magic Modi would silence the world over his August 5 action, whereby he abrogated Article 370 and Article 35-A of the Indian constitution.

Having clamped curfew on the valley for over 52 days and sending additional troops there — making it a total of 900,000 troops to manage a population of eight million — Modi manoeuvred his draconian adventure with the silent endorsement of some of our beloved friends; and two days back he managed the jugglery of ‘Howdy Modi’ at Houston.

The UNSC remained actively engaged in the Kashmir issue until 1972; it passed 18 resolutions starting with Resolution no.38/1948 moved by India, followed by Resolution no 47/1948 and continued with this process of successive resolutions until 1957.

Despite the mandatory nature of these resolutions, India has been bringing about demographic changes in the state of Jammu and Kashmir by massive cross migrations into the state of Hindu populations and employing scaring tactics to dislodge Muslim families.

After the Simla Agreement of 1972, India took a U-turn from the plebiscite in Kashmir and graded this dispute as a “bilateral one”, notwithstanding that it was a subject of the umpteen number of UN resolutions, of a mandatory nature.

In 1972, India started saying that after the Simla Agreement of 1972, the issue of Kashmir had become a bilateral dispute. Therefore, it excluded any role of the UN. Unfortunately, whenever Pakistan tried to approach India for the resolution of the Kashmir issue, it was told that Kashmir was India’s domestic issue and was no longer negotiable with Pakistan.

We in Pakistan are facing a diplomatic deadlock. It is reported that Pakistan tried to move the United Nations Human Rights Council (UNHRC) for violation of international humanitarian law by India. The deadline was September 19 and reportedly we could not muster the support of 16 members — although the government had claimed differently on this issue. The federal law minister; eminent counsel Dr Pervez Hasan, and another dignitary have taken the stance that Pakistan will not invoke the ICJ as it lacks jurisdiction under Article 36(1) and 36(2) of the statute of the International Court of Justice and the optional protocol where both Pakistan and India have made reservations to such compulsory jurisdiction.

Politics is the art of the possible and world politics is the art of ‘possibles’ and ‘doables’. Both India and Pakistan have nuclear capability, and restraint must be exercised in taking the issue to the battlefield. It is probably in this context that Prime Minister Imran Khan was in New York meeting world leaders and lobbying for mediation and requesting arbitration by a superpower like the US.

In my humble view, entrusting the job of mediation or arbitration to US President Donald Trump is fraught with serious risks and great danger for the future of the jailed Kashmiris and increases the threat of Indian aggression on Azad Jammu and Kashmir. Those who have seen the Howdy Modi Houston rally of Donald Trump and Narendra Modi will never do that. Under the circumstances I am of the firm view — having had the good fortune and opportunity to endeavour to understand public international law at work at the UN and its five component bodies — that there has been a manifest failure of international bodies including the UNSC, the General Assembly and other organisations responsible for holding a timely plebiscite to complete the process of decolonization of Kashmir.

We need to continue to assert our right till the world community realises at what cost India is infringing international humanitarian law, international human rights law and the UN fundamental charter of freedom of citizens of the world guaranteed in its first clause and implemented to the largest possible extent in the whole world except for some very few areas.

Fortunately, we have Article 65 and Article 66 of the statutes of the International Court of Justice which confer upon the ICJ the power to render advisory jurisdiction.

Designated bodies ask for this advisory opinion which is returned to them to be implemented according to their political mandate and wisdom. Other than that, there are a few judgments by the ICJ rendered in an advisory jurisdiction; these speak about the legal consequences for states for implementing these verdicts which interpret public international law.

Pakistan can simply manage to move itself or by one or more of its friends to sponsor a resolution calling upon the UN General Assembly in terms of Article 96 of the UN Charter to render an advisory opinion in exercise of its jurisdiction under Article 65 and Article 66 of the statutes of the International Court of Justice, consistent with its interpretations on issues of self-determination, right of plebiscite, decolonization and other juristic issues it has already decided.

The ICJ has rendered a total of 27 advisory opinions, and in none of these has it endorsed apartheid, colonialism, denial of self-determination or anything obstructing a plebiscite. That consistent view of the ICJ would be a silver lining for the state of Pakistan to approach the ICJ. This would be a far better course to adopt than asking Trump to be a mediator or arbitrator in this case involving the dignity and honour of the people of Jammu and Kashmir along with the 220 million people of Pakistan.

Pakistan cannot ask for anyone’s mediation or arbitration in this matter, keeping in view its seven-decades-old stance of holding a plebiscite for the beleaguered people of Jammu and Kashmir, something the United Nations Charter and UNSC resolutions solidly and consistently stood by.

The writer is a senior advocate of the Supreme Court.

Originally published in The News