Why Pakistan Will Not Succeed in Taking India to ICJ on Kashmir

The only way ICJ could take up Kashmir through this route is if India grants consent, which it will not.

In the aftermath of the Centre’ decision to revoke the special status of Jammu and Kashmir, the Pakistani foreign minister Shah Mahmood Qureshi has stated that his country will approach the International Court of Justice (ICJ) over the alleged human rights violations perpetrated in the valley following the announcement of the decision. 

With the ICJ having recently found Pakistan to be in breach of its international obligations in the Kulbhushan Jadhav case, Islamabad’s eagerness to haul India to The Hauge is politically understandable. However, the legal basis for Pakistan to invoke the jurisdiction of the ICJ in relation to the situation in Kashmir stands on very weak footing. 

This is because of the limited nature and scope of the ICJ’s contentious jurisdiction. The jurisdiction of the ICJ is based on the consent of participating states. The requirement of consent before the ICJ is fundamental and – as clarified by the court in the Armed Activities Case (Congo v. Rwanda)cannot be overridden even in instances where fundamental norms of international society, such as the prevention of genocide are threatened. 

Although in terms of the statute of the court, consent can be expressed in various forms, there are broadly three principal modes in which states routinely express their consent to either have a pre-existing or a potential legal dispute referred to and adjudicated by the ICJ. 

Also read: Pakistan’s Plan to Raise Kashmir in World Court Will Face Jurisdiction Hurdle

First, states can express consent by means of an ad-hoc arrangement between themselves for an existing dispute to be referred to and adjudicated by the ICJ. Traditionally, states enter into a special agreement, which delimits the extent of jurisdiction conferred on the ICJ. Given India’s stated position that the decision to revoke Kashmir’s special status is an internal matter and its historical reluctance to have an international tribunal adjudicate the Kashmir issue, it appears inconceivable that the Indian government would ever consent to have the dispute referred to the ICJ.

Although in rare instances, unilateral applications have been filed by states as in the Case concerning Mutual Assistance (Djibouti v. France), the ICJ has only exercised jurisdiction where the respondent state has consented post facto to have such an application adjudicated by it. 

The Kulbhushan Jadhav judgment being read out at the ICJ on July 17. Photo: Twitter/@CIJ_ICJ

Second, states can express their consent by making a unilateral declaration accepting the jurisdiction of the ICJ as compulsory, without need of any special agreement, over certain or all categories of potential legal disputes, subject to such limitations that the state making the declaration deems fit.

Although in 1974, India recognised the ICJ jurisdiction as ipso facto compulsory over all disputes, its acceptance was qualified by a long list of reservations. One of these reservations concerns disputes with states which have been part of the Commonwealth.

Accordingly, in 1999, when Pakistan had approached the ICJ accusing India of shooting down its naval aircraft Atlantique over Pakistani airspace, India successfully objected to the jurisdiction of the ICJ on the basis of amongst others, the aforesaid reservation. Any claim advanced by Pakistan against India on the basis of its unilateral declaration would accordingly be thwarted.

Unfortunately, these reservations are a double-edged sword and have precluded India from bringing a claim against Pakistan for the killing (and alleged torture) of the late Captain Saurabh Kalia during the armed conflict in Kargil.

Also read: In a First, Russia Talks of UN Resolutions on Kashmir

Third and finally, states may express consent by entering into bilateral or multilateral treaties, which by their terms confer jurisdiction upon the ICJ in relation to issues outlined in the respective treaty. Accordingly, as and when a dispute arises under the terms of such a treaty, the ICJ is vested with jurisdiction. To successfully invoke jurisdiction in such a case, there is not only a need to find a relevant treaty but to fit the dispute within the terms of the jurisdiction set forth in the relevant treaty.

The Jadhav case is an instance where consent has been held to have been expressed in this form. The dispute primarily related to the interpretation and application of the Vienna Convention on Consular Relation (VCCR) to which both India and Pakistan are signatories. India had claimed that Pakistan, amongst others, by denying India consular access to Jadhav, has breached the terms of the VCCR. Since India and Pakistan were signatories to the Optional Protocol to the VCCR vide which they conferred jurisdiction upon the ICJ in relation to any dispute arising out of the interpretation and application of the VCCR, the ICJ found itself to have jurisdiction.  

It was also for this reason that the ICJ refused to consider claims made by India in relation to securing fair trial guarantees outside the framework of the VCCR.

Also read: India Wants to Avoid International Intervention, But Needs to Address Human Rights in Kashmir

It is important to note that there is no multilateral or bilateral agreement in place in relation to issues pertaining to Kashmir, wherein jurisdiction has been conferred on the ICJ. Therefore, it is inconceivable that Pakistan could invoke the contentious jurisdiction of the ICJ against India in relation to the latter’s decision to revoke the special status of Kashmir.

India is a party to the Genocide Convention, Article IX of which provides for disputes between parties to be referred to the ICJ. However, India entered a reservation at the time of ratification:

“With reference to Article IX of the convention, the Government of India declares that, for the submission of any dispute in terms of this article to the jurisdiction of the International Court of Justice, the consent of all the parties to the dispute is required in each case.”

Thus, the only way the ICJ could take up Kashmir through this route is if India grants consent, which it will not.

The announcement by the Pakistani foreign minister comes close on the heels of the unsuccessful attempt made to lobby the international community by raising the Kashmir issue at the United Nations Security Council (UNSC).

Having failed to galvanise the UNSC into taking any action, the announcement by the minister appears to have been politically motivated and not adequately considered in terms of its legal basis.

It would be prudent for Pakistan to reconsider its legal options before bringing a claim in relation to Kashmir to the ICJ.  If not, Pakistan would likely meet the same fate as it earlier did in the ICJ’s decision in the Aerial Incident of 10 August, 1999 case over the shooting of the Pakistani naval aircraft Atlantique by the Indian forces. 

 Jay Manoj Sanklecha is an LL.M in international law (summa cum laude) from the Graduate Institute of International & Development Studies, Geneva and B.A/LL.B (honours) from the West Bengal National University of Juridical Sciences, Kolkata.