South Asia

Interview: 'Pakistan’s Legal Options on Kashmir Require Security Council Support'

Pakistan’s former additional attorney general and Supreme Court advocate Khwaja Ahmad Hosain unpacks the viability of Pakistan’s bid to take India to the ICJ.

New Delhi: Ever since India read down Article 370 of the constitution to remove Jammu and Kashmir’s special status, Pakistan – which considers itself a party to the Kashmir dispute – has been mulling its options, not just on the diplomatic front but also within international law.

In an interview with The Wire, Pakistan’s former additional attorney general and Supreme Court advocate Khwaja Ahmad Hosain unpacks the viability of Pakistan’s stated proposal to take India to the International Court of Justice (ICJ), as well as the choices available before the Pakistani state regarding the status of so-called Azad Jammu and Kashmir and Gilgit Baltistan – regions of the erstwhile princely state of J&K that have been under its de facto control since 1948.

Pakistan foreign minister Shah Mehmood Qureshi announced on Wednesday that Islamabad has decided to approach the ICJ over Kashmir. Later, the prime minister’s special assistant on information, Firdous Ashiq Awan, confirmed that Pakistan’s case would focus on “human rights and genocide in Indian-occupied Kashmir”.

When India accepted the compulsory jurisdiction of the ICJ in 1974, it entered several reservations which, on a bare reading, would appear to rule out the possibility of the world court accepting to adjudicate the merits of any application on Kashmir. India’s ratification of the 1948 Genocide Convention also included a declaration that any dispute under the treaty would have to have the consent of all the parties in order to be brought before the ICJ.

In 2006, the ICJ already ruled that it did not have jurisdiction in a case brought by Congo against Rwanda under the Genocide Convention, due to the latter’s reservations at the time of acceding to the treaty.

Hosain noted that the ICJ does not seem to have compulsory jurisdiction to accept Pakistan’s case with respect to Kashmir. But he also argues that since India clearly considers the ICJ a proper platform to solve disputes – it brought the Jadhav case there – New Delhi should be ready to argue its case, if convinced of its merit.

He also added that ultimately, the routes open for Pakistan on the legal front require international diplomatic backing, as they will have to wind through the Security Council. The recent informal consultations of the council on Kashmir – the first time in around 50 years – showed that there is no appetite right now to escalate the matter.

Besides, Hosain states that following India’s move, Pakistan should exercise the option to incorporate both PoK and Gilgit-Baltistan into the federation. This, he felt, would be different from India’s own action as Pakistan could initiate the merger after a plebiscite in those two regions or after approval from local assemblies.

Here are edited excerpts from the interview conducted over e-mail:

Pakistan has been conducting a high-profile diplomatic campaign ever since India changed Kashmir’s constitutional status. Do you believe the Pakistani government has viable options under international law, including approaching the International Court of Justice?

Article 33(1) of the UN Charter requires parties to a dispute which is likely to endanger the maintenance of international peace and security to first seek a solution through “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

Article 33(2) enables the Security Council, where it deems necessary, to call upon the parties to settle their dispute by the means set forth in Article 33(1). As an initial measure, it would be possible for Pakistan to request the Security Council to issue a direction under Article 33(2) calling upon the parties to seek a solution through the means contemplated by Article 33(1). This could be a way to deal with the impasse created by the Indian position that there can be no bilateral talks in the current environment. Since this would only be a call by the Security Council for the parties to talk, it may be easier to obtain support for this than for a resolution condemning India’s actions.

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

If nothing comes of this, the parties are required to refer the dispute to the Security Council under Article 37(1) of the Charter. Thereafter, the Security Council will determine if the dispute is in fact likely to endanger the maintenance of international peace and security. To do this, it is empowered under Article 34 to investigate the dispute. If such a determination is made, the Security Council can take action under Article 36 or recommend “such terms of settlement as it may consider appropriate”.

Under Article 36, the Security Council can recommend appropriate procedures or methods of adjustment for a dispute. When doing so, the Security Council is required to take into consideration any procedures for settlement of the dispute which have already been adopted by the parties. In making any recommendation the Security Council should take into consideration that legal disputes should as a general rule be referred by the parties to the ICJ.

The ICJ derives jurisdiction in one of three ways. First, the parties can confer jurisdiction by consent. Second, matters where jurisdiction has been specifically conferred by the UN Charter or treaties (like the Optional Protocol to the Vienna Convention on Consular Access) adopted by parties. Third, by declaration by a party recognising compulsory jurisdiction in case of legal disputes in relation to any other party accepting the same obligation.

When making such a declaration, States are entitled to make reservations limiting the categories of disputes they are prepared to submit to compulsory jurisdiction. Both India and Pakistan have deposited reserved declarations with the ICJ.

The International Criminal Court of Justice. Credit: Wikimedia Commons

The International Criminal Court of Justice. Credit: Wikimedia Commons

In 1974 India entered a reserved declaration excluding several types of disputes from the compulsory jurisdiction of the ICJ including disputes with the government of any state which is or has been a member of the Commonwealth. Pakistan has also entered a reserved declaration in 2017 (updating a previous declaration in 1960) excluding disputes prior to the declaration.

As a result, the ICJ does not appear to have compulsory jurisdiction to entertain any claim Pakistan may have against India in respect of Kashmir.

Apart from giving binding decisions, the ICJ also has the power to issue advisory opinions on any legal question. The Security Council or the General Assembly is empowered to request such an advisory opinion under Article 96 of the UN Charter. Pakistan cannot directly ask for an opinion. It can request the Security Council or the General Assembly to do so.

The International Criminal Court (“ICC”) has jurisdiction in respect of offences of genocide, crimes against humanity, war crimes and the crime of aggression. Neither India nor Pakistan are party to the Rome Statute which establishes the ICC. If Pakistan (or India) has any complaint with respect to any such conduct, the ICC does not have jurisdiction to entertain such cases on the basis of a complaint they may make. Notwithstanding that a state is not a party to the Rome Statute, the United Nations Security Council has the power to refer a crime to the prosecutor. The ICC only prosecutes individuals, not states.

The bottom line for Pakistan is that it’s diplomatic and legal options are closely interlinked. Pakistan’s legal options require Security Council support to be meaningful.

If the ICJ does not seem to have compulsory jurisdiction on Kashmir, why has Qureshi said Pakistan is going to go to the world court?

In the interview I have seen, the foreign minister has indicated an “in principle” decision to approach the court in respect of a claim of genocide. He also said the Ministry of Law will provide further clarity on the matter. So, we need to wait for that. I presume the approach will be on the basis of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”). This has been ratified by both India and Pakistan.

The Convention provides jurisdiction to the ICJ in respect of disputes relating to “interpretation, application or fulfilment” of the Genocide Convention. It does not appear that the ICJ will be approached in respect of the future of the territory of Kashmir, given India’s reservations.

Also Read: UNSC Discusses India-Pak Dispute for First Time Since 1971, No Statement Issued

In any case, any jurisdictional objection by India would mean that it does not want a decision on merits before a forum which it acknowledges is fair and appropriate for resolution of its disputes with Pakistan. I am referring to the Jadhav case, where India approached the ICJ although there the basis of jurisdiction was a treaty or optional protocol signed by both States. Still, as a matter of principle, India acknowledges that the ICJ is an appropriate forum for resolution of disputes with Pakistan provided the parties have agreed. The question for India would be why not agree to the jurisdiction of the ICJ on Kashmir if you are convinced about the merits of your case?

A Kashmiri family walks past a blockade put up by residents to prevent Indian security force personnel from entering their neighborhood during restrictions. Photo: REUTERS/Adnan Abidi

Several observers and experts have written that Pakistan has very limited options at this moment. Would you consider that an accurate view?

There are two dimensions. As far as the legality of the actions from the perspective of Indian law is concerned, Pakistan has no options. This will be determined by the Indian courts.

On the international plane, Pakistan can seek to raise two issues with international organisations and other countries. First, the question of human rights violations within Kashmir. Second, the question of resolution of this long-standing dispute which presents a significant danger to regional peace and stability in accordance with the wishes of the people of the area. It appears the Indian government’s decision has – at least for the moment – internationalised an issue which everyone had pretty much forgotten.

Pakistan has already approached the Security Council. The Security Council has considered the matter – it doesn’t really matter at whose instigation or why.

I think there are three important factors that have emerged from such consideration or “consultation”. First, it seems clear that the international community acknowledges there is a dispute. Absent a dispute, there would have been nothing for anyone to talk about.

Second, India’s representative at the UN reiterated India’s commitment to the Simla Agreement. I presume this was in the context of requesting the world community – including what he referred to patronisingly as “international busybodies” – to stay out. This seems odd, given that the actions themselves appear to constitute a unilateral change of the status quo which is a breach of Simla. Regardless, acknowledging Simla means acknowledging that the fate of J&K is not sealed. This is part of the reason Simla was seen as a sell out by the opponents of Indira Gandhi when she signed the agreement.

Third, the international community appears to be encouraging bilateral engagement which supports India’s position. However, at the same time the secretary general and Security Council members have also referenced the UN Charter and applicable UN resolutions. This is inconsistent with India’s approach that Simla trumps everything else and no-one has anything to do with this apart from the two countries. Of course, this “bilateral” perspective is also inconsistent with India’s own position that this is an internal matter for India – which would mean there is nothing to discuss with Pakistan under Simla.

UNSC in session. Credit: Wikimedia Commons

Can you explain simply what is the legal and constitutional status of Gilgit-Baltistan and its connection to the Pakistani state?

Gilgit Baltistan is an area administered and controlled by Pakistan. It is not a part of the Federation of Pakistan under the Constitution. It is governed under the terms of the Government of Gilgit Baltistan Order of 2018. The purpose of the order – which is an executive and not legislative instrument – was to bring the area at par with other provinces and provide greater empowerment and rights for the people.

The Supreme Court earlier this year delivered a judgment on Gilgit Baltistan which directed that the 2018 order be replaced with another order which the court attached to its judgment. As far as I am aware, this has not been done as yet. The judgment sought to give further rights to the people of the area while preserving Pakistan’s position on Jammu & Kashmir’s future being determined by its people through a plebiscite. The court also noted that the commitment to a plebiscite was made on several occasions by Nehru and the Indian government.

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Similarly, could you also describe PoK’s status within the Pakistan constitution? What is the likelihood of Islamabad taking legal action to change its legal status? 

It is a state with its own Constitution known as the Azad Jammu & Kashmir Interim Constitution of 1974. The Constitution was proposed by the Government of Pakistan and adopted by the legislative assembly of AJK.

AJK is not part of the Federation of Pakistan under the Constitution of Pakistan. Article 257 of Pakistan’s Constitution contemplates that when the people of the State of Jammu & Kashmir “decide to accede to Pakistan, the relationship between Pakistan and the State shall be determined in accordance with the wishes of the people of that State.”

If Pakistan does incorporate these two areas into the Pakistani Union under Article 13(1), what will Pakistan achieve by such a move, when it is criticising India for changing Jammu and Kashmir’s special status?

Article 1(3) of the Pakistan Constitution provides that parliament may “by law admit into the Federation new States or areas on such terms and conditions as it thinks fit”. It would be possible for Pakistan’s parliament to admit Gilgit Baltistan and/or AJK into the Federation subject to the condition that such admission is conditional on the result of any plebiscite that may be held. This would be different from India’s actions in so far as the admission would be conditional on the people of the area ultimately confirming such accession through a plebiscite.

The other difference could be that Pakistan could obtain the consent of the relevant assemblies prior to such move and not seek to surreptitiously and suddenly impose a decision on a recalcitrant local population through denial of fundamental rights. The benefit would be to the local people living in the area who would enjoy full rights as citizens of the Federation including the right to representation in the National Assembly.

Won’t merging them into the Pakistani federation accelerate the process of turning the Line of Control into the international boundary – which has been suggested several times as part of a possible deal between India and Pakistan?

This fear means that it is unlikely that this will happen. Traditionally, the approach of Pakistan’s Ministry of Foreign Affairs has been that any tinkering with the status of these areas would compromise Pakistan’s position on a plebiscite for the entire state. The reality is that various instruments (both in 2009 and 2018 in the case of Gilgit Baltistan) have already made changes to applicable laws in the areas.