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September 19, 2020

Hurdles for Kashmir

Opinion

September 19, 2020

Kashmir, claimed by both India and Pakistan in its entirety but governed in parts, has inarguably been the hottest issue between the two arch rivals in South Asia.

In a world of civilized nation-states, inter-state disputes are supposed to be handled according to international law. Soon after Partition, in 1948, the United Nations Security Council came up with Resolution 47, 'The India-Pakistan Question', recommending necessary measures for the restoration of peace and order, and holding of a plebiscite. Hence, the Kashmir dispute was internationalized and the UN got involved. However, a number of obstacles are in the way of a resolution of the dispute under international law.

The Simla agreement of 1972 made the issue of Kashmir bilateral. However, nowhere does the Simla Agreement state an annulment of UNSC resolutions. Seventeen resolutions have been passed on Kashmir from 1947 to 1957. None of them mentions the chapter under which they are passed; they cannot outright be termed as mere recommendations. The Simla Agreement stressed that neither of the sides to the dispute shall unilaterally alter the situation in Kashmir. However, India violated the treaty and unilaterally annexed the territory of Occupied Kashmir in August 2019 by revoking Articles 370 and 35(A) of the Indian constitution.

The right to self-determination is a right erga omnes under customary international law. In the advisory opinion on Kosovo, the International Court of Justice made it clear that the declaration of independence cannot be regarded as contrary to international law. Article 1 of the International Covenant on Civil and Political Rights (ICCPR) says, “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. India issued a declaration stating that the words “the right of self-determination” apply only to people under foreign domination and that these words do not apply to sovereign independent states or to a section of a people or nation. Pakistan objected and called it “incompatible with the object and purpose of the Covenant”. France, Germany and the Netherlands also objected to India’s interpretation.

Article 36 (2) of the statute of the ICJ says, “The states parties to the present statute may at any time declare that they recognize 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 certain matters. Hence, any party can approach the ICJ given that the concerned party has accepted the compulsory jurisdiction of the court. India accepted the compulsory jurisdiction of the court in 1974. However, India made several declarations along with it, one of which includes not giving jurisdiction to ICJ over “disputes with the government of any state which is or has been a member of the Commonwealth of Nations”. Hence, Pakistan cannot take India to the ICJ absent India’s consent.

Consent before the ICJ is a must. Pakistan approached the ICJ in 1999 when India shot down Pakistan’s naval aircraft Atlantique in Pakistan’s territory. The ICJ did not give the judgement citing the issue of jurisdiction because of India’s declaration. Such declarations are not surprising. Many countries do put them while accepting the compulsory jurisdiction. Pakistan is no exception. Pakistan does not give jurisdiction to the ICJ over disputes that relate to the national security of Pakistan.

The situation in Kashmir is a non-international armed conflict where the Geneva Convention and other humanitarian laws are applicable. India has also put a declaration to the Genocide Convention of 1948 that any dispute would need the consent of all parties in order to bring it before the ICJ. The ICJ is not a human rights court. Individuals can neither approach the court, nor tried in it. Only states are the subjects of the ICJ. Pakistan blames India for severe violations of human rights in Kashmir. The International Criminal Court cannot be approached directly as neither India nor Pakistan is a member of the organization.

The ICC is an international organization distinct from the UN. It is voluntary to join the organization. The ratione loci and ratione personae scope of the ICC can be extended by the UNSC that can refer a situation to the ICC under Chapter 7. This authority has been derived from the UN charter. This has happened previously in two situations that have been referred to the ICC by the Security Council. First, the crisis in Darfur in 2005, and second, the situation in Libya in 2011. Both Libya and Sudan are not members of the ICC but the situation nevertheless went to it for trial. Pakistan and India are not members of the ICC but the UNSC has the jurisdiction to move the ICC under the Rome Statute for findings on violations of human rights.

The ratione materiae of the ICC are crimes of a grave nature that are a concern for humanity. They include genocide, crimes against humanity, war crimes and crimes of aggression. The Security Council is entitled to refer to the ICC prosecutor “a situation in which one or more of such crimes appears to have taken place”. The UNSC can only refer a situation to the ICC as a whole and cannot refer to the crimes committed by one side of conflict and not the other. The jurisdiction of the ICC is regulated by the principle of complementarity as opposed to the International Criminal Tribunal for former Yugoslavia and that of Rwanda. If the case is being duly investigated by the domestic court, it is not taken by the ICC.

New Delhi does not officially recognize the violations of human rights in Kashmir, let alone trying the alleged crime. Hence, the matter is eligible to be referred to the ICC by the Security Council. The Security Council internationalized the matter in 1948 and should take the lead to resolve it now when it needs the most.

The writer is a freelance contributor.

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