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Explained: Can Pakistan get the ICJ to undo India’s decision on J&K’s special status?

Tensions between India and Pakistan soured ever since India abrogated provisions of Article 370 of the Constitution to withdraw Jammu and Kashmir's special status and bifurcated it into two Union Territories.

Written by Mehr Gill , Edited by Explained Desk |
Updated: August 21, 2019 6:58:02 pm
pakistan moves to icj on kashmir issue, kashmir issue icj, kashmir special status, kashmir issue, article 370, article 35a, pakistan on kashmir, international court of justice Pakistan Foreign Minister Shah Mehmood Qureshi has said his government is going to approach ICJ over the Kashmir issue. (Reuters)

On Tuesday, Pakistan decided to approach the International Court of Justice (ICJ) over the recent revocation of Jammu and Kashmir’s special status by India. “An in-principle decision has been taken to take the issue of Kashmir to the International Court of Justice,” Foreign Minister Shah Mehmood Qureshi told Pakistan’s ARY News TV. Firdous Ashiq Awan, the information assistant to the Pakistan Prime Minister, said that the case will be filed based on the “human rights violations” in Kashmir.

What is the International Court of Justice?

The ICJ was established in 1945 and is the principal judicial organ of the United Nations (UN). Only countries are eligible to appear before the ICJ, not individuals, non-governmental organisations, corporations or any other private entities. According to the ICJ’s website, “The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.” The ICJ is made up of 15 judges who are elected for a term of nine years by the UN General Assembly and the UN Security Council.

What is ICJ’s jurisdiction?

The nature of the ICJ’s jurisdiction is twofold. One, it looks at disputes of a legal nature submitted to it by countries. Two, it has an advisory jurisdiction, where the ICJ may give an advisory opinion on legal questions at the request of the various organs of the UN, specialised agencies or organisations authorised to make such requests.

When is the jurisdiction of the ICJ compulsory?

Some countries recognise the jurisdiction of the ICJ as compulsory by filing a declaration. India and Pakistan have filed these declarations in 1974 and 2017, respectively. Filing such a declaration means that the concerned country (which acknowledges the compulsory jurisdiction of the ICJ) has the right to move the ICJ against any other country, which also accepts the same obligation, by filing an application instituting proceedings with the ICJ.

Even so, it is not clear if the jurisdiction of the ICJ will be compulsory in the J&K case since India has repeatedly said that it is an “internal matter”.

What happens when the jurisdiction of the ICJ is disputed?

In case there is a dispute related to the ICJ’s jurisdiction, the matter is settled by the decision of the ICJ itself guided by provisions given under Article 36 of the statute. The purpose of the statute is to “organise the composition and functioning of the court”.

What is the procedure for filing a case in the ICJ?

In case of a unilateral application, as per the rules of the court (1978), the applicant state (Pakistan, in this case) will have to specify the legal grounds for ICJ’s jurisdiction. In addition, it will need to state the precise nature of the claim, “together with a succinct statement of the facts and grounds on which the claim is based”.

Proceedings, however, cannot begin until the country, against whom the application has been made, consents to the ICJ’s jurisdiction over the matter. Furthermore, to determine its jurisdiction in the early stages of the proceedings, the ICJ can request the parties concerned to “argue all questions of law and fact” and cite evidence about the issue.

The proceedings can be instituted by way of a special agreement as well, which is bilateral in nature and in which the application can be filed by either party.

Can the ICJ’s judgments be revised?

A judgment can be revised only if there is discovery of a fact important to the matter which was not known to the ICJ and the party claiming revision when the judgment was first delivered. The party asking for a revised ruling needs to assure the ICJ that the presence of the fact wasn’t simply neglected.

Has the ICJ been approached by India or Pakistan in the past?

India and Pakistan were involved with the Kulbhushan Jadhav case at the ICJ. Jadhav, an Indian, was given a death sentence by a Pakistani military court in 2017 on charges of espionage, and the case pertained to India’s demand seeking his release from Pakistan. This case was filed by India on May 8, 2017, based on the breach of Pakistan’s obligations under Article 36 of the Vienna Convention on Consular Relations.

In its most recent press release dated July 17, the ICJ said the following, “The Court finds that the Islamic Republic of Pakistan, in the matter of the detention and trial of an Indian national, Mr Kulbhushan Sudhir Jadhav, has acted in breach of the obligations incumbent on it under Article 36 of the Vienna Convention on Consular Relations.”

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