A right rebuff for Pakistan

Its judgments in the Minority Schools, Eastern Carelia and the Peace Treaties cases have clearly laid down that the consent of the nation-states is the basis of its jurisdiction.

Pakistan knew that, while acceding to the court’s jurisdiction, India had made a specific reservation. This was that the court would not have jurisdiction concerning India’s disputes with the government of any nation-state which is or has been a member of the Commonweal-th of Nations. This fact is easily ascertainable from the year-books issued by the office of the court itself.

Hence, Pakis-tan had an opportunity even after having gone to the court to quietly wi-thdraw its petition. It had another opportunity to do so when on November 10, 1999, the then President of the court, Judge Schwebel, decided that the question of the court’s legal authority to hear Pakistan’s petition had to be decided first. Pakistan would have logically withdrawn its petition if it had proceeded purely on the basis of international law. That it did not do so showed its intention of waging a legal diplomatic war.

Accordingly, Pakistan relied upon the 1928 General Act for the Pacific Settlement of International Disputes. In relying upon this Act relating to a time when India and Pakistan were not in legal existence as sovereign and independent states, the Pakistan government igno-red once again key decisions of the co-urt. These decisi-ons in the cases of the rights of nationals of the United States in Morocco, nationalities decr-ees issued in Tunis and Morocco and of Namibia, decl-are that a legal instrument has to be interpreted and applied within the fr-amework of the entire legal system at the time of its interpretation.

The Pakistan government knew that, as far back as September 18, 1974, the Indian government had informed the UN Secretary-General that it never was bound by the 1928 General Act. Pakistan must be presumed to know the international law laid down in 1978 by the court in the Aegean Sea Continental Shelf case that a government is not bound even by a joint communique with any other government if it has already written to the appropriate authority that it would be bound only when its parliament ratifies the communique. Yet, it ignored the communication of 1974.

Surely Pakistan having been a party to the 1972 Shimla Accord and the Lahore declaration knew that the two countries had not agreed to submit their disputes to the International Court of Justice. Yet, its government ignored the accord and the declaration.

The court has not only repulsed the Pakistani attempt to abuse the international judicial process but gone further to indicate the legal framework for the bilateral settlement of disputes between the two countries. Stressing the spirit of the UN Charter, the court has indicated that the relations between the two countries must evolve peacefully on the basis of the Shimla Accord and the Lahore Declaration. It has clearly sent the message that on an irrelevant legal subject like the Kashmir issue, it will not expand its jurisdictional net to catch litigation at the instance of any nation-state.

Pakistan’s criticism of the judgment is best answered by what the court said in the Namibia case: “It would not be proper for the court to entertain the observations bearing as they do on the very nature of the court which acts only on the basis of the law in the discharge of the judicial function entrusted to it alone by the Charter of the United Nations and its Statute. A court functioning as a court of law can act in no other way.”The International Court, by its decision, has upheld both judicial independence and integrity as the basis of international law.