Pakistan plans to move ICJ over Kashmir

Barely a fortnight after New Delhi announced the bifurcation of Jammu and Kashmir and revoked Article 370 of the Constitution, Pakistan is finalising the modalities to take the Kashmir issue to the International Court of Justice at The Hague. “An in-principle decision has been taken to take the issue of Kashmir to the ICJ,” foreign minister Shah Mahmood Qureshi was quoted by news agencies as telling a Pakistani news channel. But the key issue is whether the ICJ has the jurisdiction to hear the matter and whether the court will admit the matter for hearing. In any case, India is likely to oppose any jurisdiction of the ICJ on the matter as it will violate India’s sovereignty and territorial integrity.

India has always regarded the entire state of Jammu and Kashmir as its “integral part”. Further, India’s position is that the bifurcation of J&K and revoking of Article 370 is its “internal matter” and within its “sovereign jurisdiction”. Therefore, New Delhi is unlikely to accept any jurisdiction of the ICJ to hear the matter.

Sources in New Delhi said India would not immediately react to Pakistan’s proposed move and wait to decide its course of action till Pakistan formally approaches the ICJ. “It is a legal matter and will be handled as such,” sources indicated.

While the two countries had legally battled it out at the ICJ recently on the Kulbhushan Jadhav case after New Delhi had approached the ICJ in 2017 over the lack of consular access to Mr Jadhav, Pakistan also recognised the jurisdiction of the ICJ to decide the matter in that case. Imprisoned former Indian naval officer Kulbhushan Jadhav had been handed a death penalty in Pakistan in April 2017 by a military court on charges of espionage and sabotage, but New Delhi dismissed the Pakistani charges as baseless. After two years, the International Court of Justice in its verdict on July 17 this year had criticised Pakistan for not granting India consular access to Mr Jadhav in violation of the Vienna Convention.

Prime Minister Imran Khan had reportedly told a joint sitting of Pakistan’s Parliament on August 6 that he will raise the Kashmir issue at every forum, including the UN Security Council and also take the matter to the ICJ.

Pakistan is hoping the international spotlight falls on the Kashmir issue once it formally takes the matter to the ICJ. But Islamabad’s move could present a diplomatic challenge for India. In any case, since the beginning of August, New Delhi has been gearing up for the long haul as it realises that a desperate Pakistan will take the Kashmir issue to any and every international forum.

With India likely to oppose any jurisdiction of the ICJ to hear the case, it remains to be seen what stand the court takes in a scenario where the concerned state against which the application has been made does not accept its jurisdiction.

In some cases in the past where the ICJ was petitioned, the court “found that it could not allow an application in which it was acknowledged that the opposing party did not accept its jurisdiction”. Under the ICJ rules, Article 38, paragraph 5, of the present rules of the court, which came into force on July 1, 1978, states: “When the applicant state proposes to found the jurisdiction of the court upon a consent thereto yet to be given or manifested by the state against which such application is made, the application shall be transmitted to that state. It shall not however be entered in the general list, nor any action be taken in the proceedings, unless and until the state against which such application is made consents to the court’s jurisdiction for the purposes of the case.”

On the other hand, Article 36, paragraph 6, of the ICJ statute provides that “in the event of a dispute as to whether the court has jurisdiction, the matter shall be settled by the decision of the court”.