Kashmir & the ICJ

02 Sep 2019

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The writer is senior advocate of the Supreme Court of Pakistan.
The writer is senior advocate of the Supreme Court of Pakistan.

NATIONAL attention is today focused on Pakistan’s possible responses to the revocation by India on Aug 5, 2019, of occupied Kashmir’s special status in the Indian constitution. Much of the public debate includes calls for agitating against this violation of UN Security Council resolutions and international law before the UN’s principal judicial organ, the International Court of Justice (ICJ).

Read: Pakistan to take Kashmir dispute with India to International Court of Justice

Under Article 93 of the UN Charter, all member states are parties to the “Statute of the ICJ”. Article 36(1) of the ICJ Statute provides: “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.”

It is clear that the ICJ does not have automatic or compulsory jurisdiction in any matter. The statute clarifies that the ICJ can assume jurisdiction in the following cases: (i) when the parties refer a matter to it [Article 36(1)]; (ii) where it is specially provided for in the UN Charter [Article 36(1)]; (iii) where two or more states are parties to a treaty or convention in force and such treaty provides for disputes thereunder to be referred to and resolved by the ICJ [Article 36(1)]; (iv) where a pre-UN treaty provides for reference of a matter to a tribunal instituted by the League of Nations or to the Permanent Court of International Justice (PCIJ) — the ICJ’s ‘predecessor’ court — the reference will lie, as between the parties to the present statute, to the ICJ (Article 37); (v) it can give an advisory opinion on any legal question at the request of a body authorised in accordance with the UN Charter (Article 65); (vi) where the states have accepted as compulsory ipso facto and without special agreement the ICJ’s jurisdiction [Article 36(2)].

The International Court of Justice does not have automatic or compulsory jurisdiction in any matter.

The last category requires further elaboration. Article 36(2) of the statute enables states to declare that they accept the ICJ’s compulsory and automatic (ipso facto) jurisdiction in legal disputes involving treaties and questions of international law: “The states parties to the present statute may at any time declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the court in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation.”

The declarations under Article 36(2) were anticipated to be the basis of much of the ICJ’s work. Such declarations are required to be deposited with the UN secretary general who “shall transmit copies thereof to the parties to the statute and to the registrar of the court” [Article 36(4)].

Article 36(5) enables the continuation of declarations made under the earlier Article 36 of the PCIJ Statute that are still in force for the ICJ’s compulsory jurisdiction.

And, Article 36(6) addresses the ICJ’s competence to decide disputes of jurisdiction: “In the event of a dispute as to whether the court has jurisdiction, the matter shall be settled by the decision of the court.”

As many as 73 UN member states have accepted the ICJ’s compulsory jurisdiction under Article 36(2) of the statute. India and Pakistan have both filed declarations under Article 36 accepting the ICJ’s compulsory ipso facto jurisdiction. The Indian declaration dated Sept 15, 1974 substituted its earlier declaration of Sept 14, 1959. Pakistan’s declaration dated March 29, 2017 substituted its earlier declaration of Sept 12, 1960. Left at that, it would seem possible for either Pakistan or India to take the Kashmir dispute to the ICJ. But India filed its declarations, in 1974 and earlier, with the condition that its acceptance of the ICJ’s jurisdiction excludes “disputes with government of any state which is or has been a member of the Commonwealth of Nations”. This exclusion is enabled by Article 36(3) of the ICJ Statute: “The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.”

India, in its declaration, has thus excluded the competence of the ICJ to hear disputes involving India with another member of the Commonwealth. To preclude any action by Pakistan to confer jurisdiction on the ICJ in the Kashmir dispute by leaving the Commonwealth, India added in its conditions of acceptance of the ICJ’s compulsory jurisdiction that such acceptance excludes disputes with another member “which is or has been a member” of the Commonwealth. This completely ousts the ICJ’s jurisdiction under India’s declaration.

The restrictive and almost self-serving declaration of India under Article 36 is by no means unique or unusual. Many declarations by states exclude the ICJ’s jurisdiction in ways that the declarations are generally ineffective against the declarant state. Pakistan’s declaration has many conditions for the acceptance of the ICJ’s jurisdiction, including the ouster of disputes that relate to the “national security of Pakistan” or that fall essentially within Pakistan’s domestic jurisdiction. However, the most notorious example is the US declaration by its then president Harry S. Truman on Aug 14, 1946, which, among others, in a self-judging provision excludes the ICJ’s jurisdiction in matters which are essentially “within the domestic jurisdiction of the United States of America as determined by the United States of America”. The Trump administration recently, in 2018, announced plans to re-evaluate (read further restrict) the US role before the ICJ.

The above analysis shows that Pakistan may not be able to invoke the ICJ’s jurisdiction in the Kashmir dispute in view of the conditions imposed by India as enabled by Article 36(3) of the ICJ Statute. An imperfect world. An imperfect international legal system.

The writer is senior advocate of the Supreme Court of Pakistan.

Published in Dawn, September 2nd, 2019