Briefing the Senate Committee on Kashmir and Gilgit-Baltistan Affairs, Faisal said that consultation are going on various options including to use the forum of the UN Human Rights Council.
He said another stage available for Pakistan to take up the matter with the Organisation of Islamic Cooperation. He also raised the concerns about the ceasefire violations along the Line of Control (LoC) by India and loss of life on both side.
The rhetoric of taking Kashmir issue to ICJ is more of an ‘emotional’ outburst of Pakistan foreign minister as it is not even apparent whether the issue of human rights violation or abrogation of Article 370 will be flagged at ICJ. It also appears that Pakistan has not explored legal aspects and done its homework prior to making such an announcement. The Kashmir dispute, at the first place may not be admitted in ICJ for consideration as the Pakistan stands on very weak footings legally. For a case to be admitted in the ICJ, the first and foremost requirement is the consent of both the countries.
There are certain circumstances under which consent can be expressed. Both countries can approach ICJ through temporary arrangements for any specific issue to be heard in the court. Considering India’s stand that revocation of Article 370 is an internal issue and in no case like interence from any international agency. ICJ may exercise its jurisdiction if a state has accepted it unilaterally and India, in 1974 had recognised the ICJ jurisdiction but with number of reservations. The reservations below removes the jurisdiction of ICJ which would almost rule out admission of the Kashmir dispute in the ICJ:
- Disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement;
- Disputes with the government of any State which is or has been a Member of the Commonwealth of Nations;
- Disputes in regard to matters which are essentially within the domestic jurisdiction of the Republic of India;
- Disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved;
Based on India’s invoking the exception of exemptions for disputes between commonwealth countries or multilateral documents, In 2000, the ICJ agreed with India that Pakistan’s suit to seek reparations and compensation for the shooting down of an unarmed aircraft could not be admitted.
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 in the ICJ’s decision in Jadhav’s case where it has been blamed for violating Vienna Convention on Consular Relation (VCCR) to which both India and Pakistan are signatories.
27 Aug 19/Tuesday Written by Fayaz