JURIST Guest Columnist Abhishek Trivedi, LLM Faculty of Studies, at South Asian University – New Delhi discusses the implications of the International Court of Justice decision in the Kulbhushan Jadhav case… On May 18, 2017 the order of provisional measures [PDF] was given by the International Court of Justice (ICJ) in favor of India in the 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 this case. Their concerns are that India has played into Pakistan’s hands, and given it a handle to open up many other issues. These critics are confident that Pakistan will 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 with Pakistan would be resolved bilaterally and the change could give an opening to Pakistan to internationalize the Kashmir issue. Criticizing India’s move to the ICJ in the 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 the 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. However, it is important to consider the possibilities of ICJ’s jurisdiction in the future if Pakistan takes the Kashmir issue to the ICJ.
Statute of ICJ and UN Charter: Possibilities of Jurisdiction
There are two ways in the ICJ statute [PDF] under which Pakistan can take the Kashmir issue to the ICJ; one is Article 36 (1) and second is Article 36 (2). As far as Article 36 (2) is concerned, it will be difficult or nearly impossible for Pakistan to bring India before the ICJ on the Kashmir issue, as India has made a declaration on September 18,1974 in which it exempted itself from ICJ jurisdiction in two instances. The first is cases involving two members of the Commonwealth and the second is its multilateral treaty reservation.
Under Article 36 (2) of the statute, Pakistan will also not repeat the same mistakes which it made in 1999, in the Aerial incident case [PDF] in which the Court found that it had 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 recently 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) because India did not base this Court’s jurisdiction under Article 36 (2) but under Article 36 (1). Pakistan might go to ICJ on the Kashmir issue under Article 36 (1) which reads as follows: “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 the Kashmir issue or otherwise dealing with the issue, or under the provision of the UN Charter. The Shimla Agreement [PDF] between India and Pakistan on July 2, 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, and more particularly in the case of Jammu and Kashmir, neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations.
Under Lahore declaration [PDF] on February 21, 1999 , in its operative paragraph, the two countries agreed to intensify their efforts to resolve all issues, including the issue of Jammu and Kashmir, and intensify their composite and integrated dialogue process for an early and positive outcome of the agreed bilateral agenda . 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 for 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, pursuant to Article 36 (1) of the ICJ Statute, the Court still will have no jurisdiction to entertain the Application on the basis of Article 36 (1) of the Statute as the UN Charter contains no specific provision conferring compulsory jurisdiction on the Court.
Kulbhushan Jadhav Case: The Test of Bilateralism
Pakistan argued in the 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 the Agreement on Consular Access [PDF] (“2008 Agreement”) signed on May 21, 2008 by and between India and Pakistan.
Pakistan also argued that the jurisdiction under the Vienna Convention on Consular Relations 1963 [PDF] (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 the 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 to the 2008 Agreement, the 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.” This means the 2008 agreement can only confirm, supplement, extend or expand the Vienna convention but cannot limit it. On the other hand, the Shimla agreement and the Lahore declaration, prima facie, preclude any bilateral issue between India and Pakistan, including Jammu and Kashmir, to be decided outside bilateral understandings or at the multinational forum.
Last but not least, it is as if India has opened Pandora’s Box to Pakistan by making the Jadhav issue multilateral, Pakistan is sure not to hesitate to take India to the ICJ not only on the Kashmir issue but =on many matters such as Kishan-Ganga power project under the Indus Water Treaty 1960 [PDF].
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.
Suggested citation: Abhishek Trivedi, ICJ Jurisdiction on Bilateral Issues Possibilities Regarding Jammu and Kashmir Dispute , JURIST – Student Commentary, July 19, 2017, http://jurist.org/dateline/2017/02/abhishek-trivedi-icj-pandora.php
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