On August 5, 2019, the government of India withdrew the special status of the State of Jammu and Kashmir conferred under Article 370 of the Indian Constitution. By a presidential order, all privileges earlier offered to the state – the constitution, laws, flag – have been eradicated. When in 1947, the state joined India, it did so with requirements that it would maintain a degree of independence. This independence was safeguarded by Article 370 of the Indian Constitution. India revoked this special status of the state in brazen infringement of the United Nations Security Council (UNSC) resolutions and international law.
The UNSC resolution of 1948 acknowledged the state as a contested territory and repeated that the permanent status of the state would be determined by a referendum. The UNSC resolutions of 1951 and 1957 further reprimanded Indian unilateral attempts to modify the special status of the state. The United Nations also announced the territory under the control of India and Pakistan as the ceasefire line following the Simla Agreement of 1972.
The agreement prohibits unilateral action to alter the status of the state. Clause 1(ii) of the agreement precisely declares that neither side shall unilaterally alter the situation. Clause 6 further underlined that both the states should discuss modalities for a conclusive resolution of the state via peaceful ways. Therefore, India’s claim that the withdrawal of the special status of the state is its domestic matter refutes its pledge under the agreement.
With this background, Pakistan can pursue Kashmir’s case before the United Nations Security Council (UNSC), the UN Human Rights Council (UNHRC), the International Court of Justice (ICJ) and the International Criminal Court (ICC).
The remedies available before these forums are discussed in the following paragraphs.
United Nations Security Council: Under the UN Charter, the maintenance of international peace and security is the primary responsibility of the UNSC. Due to gross and systematic violations of human rights in Indian Occupied Jammu and Kashmir (IOJ&K), Pakistan should consistently stress on the UNSC to play its role, under the UN charter, to enforce its resolutions regarding the right to self-determination of the Kashmiri people and to control escalating threat to peace and security in South Asia.
Further, Article 33 (2) of the UN Charter authorises the UNSC to call upon the parties to settle their dispute by the means outlined in Article 33(1) (negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice). Thus, Pakistan can request the UNSC to direct the parties that the Kashmir dispute is decided by judicial settlement by the ICJ.
UN Human Rights Council: In view of the worsening human rights situation in IOJ&K, Pakistan should launch an aggressive diplomatic campaign to hold a special session of the UN Human Rights Council (UNHRC). If one-third of the member states request to hold a special session, the UNHRC can hold a special session to address human rights violations and emergencies. On February 24, 2020, Pakistan raised the issue of human rights violations in IOJ&K at the 43rd session of the UNHRC in Geneva. However, such efforts need to be enhanced for the conduct of another session for more meaningful outcome. During this session and even otherwise, it must be highlighted that India is committing serious crimes against the people of IOJ&K with brutalities such as extrajudicial killings, rape, unlawful detentions and incarcerations, disenfranchisement of Kashmiri people by systematic changes in demographic, use of ammunition against peaceful protestors, and burning and looting of houses. Pakistan should expose the real Indian intention behind the act of August 5, 2019 before the international community—that is to change the demographic structure and settle the Hindu community in the IOJ&K.
More importantly, Pakistan should press on the UN, and the international community that findings of the two consecutive reports of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on Kashmir released on June 14, 2018 and July 8, 2019 should be taken seriously. As per the finding of these reports, the UN should ensure the setting up of an international inquiry so that the international community could see more clearly how India is committing barbarous acts in the IOJ&K with complete impunity.
International Court of Justice: Under Article 93 of the UN Charter, all member states are parties to the statute of the International Court of Justice (ICJ). Article 36(1) of the ICJ Statute stipulates: “The jurisdiction of the court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”
Thus, the ICJ has not automatic or compulsory jurisdiction in any dispute. The statute provides that the ICJ can assume jurisdiction in the following cases: (i) when the parties refer a matter to it [Article 36(1)]; (ii) where it is specially provided for in the UN Charter [Article 36(1)]; (iii) where two or more states are parties to a treaty or convention in force and such treaty provides for disputes thereunder to be referred to and resolved by the ICJ [Article 36(1)]; (iv) where a pre-UN treaty provides for reference of a matter to a tribunal instituted by the League of Nations or to the Permanent Court of International Justice (PCIJ) — the ICJ’s ‘predecessor’ court — the reference will lie, as between the parties to the present statute, to the ICJ (Article 37); (v) it can give an advisory opinion on any legal question at the request of a body authorized in accordance with the UN Charter (Article 65); (vi) where the states have accepted as compulsory ipso facto and without a special agreement the ICJ’s jurisdiction [Article 36(2)].
Article 36(2) of the statute allows states to declare that they accept the ICJ’s compulsory and automatic (ipso facto) jurisdiction in legal disputes involving treaties and questions of international law: “The states parties to the present statute may at any time declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the court in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation.”
India and Pakistan both have filed declarations under Article 36 accepting the ICJ’s compulsory ipso facto jurisdiction. In 1974, India entered a reserved declaration, with the condition that its acceptance of the ICJ’s jurisdiction excludes “disputes with the government of any state which is or has been a member of the Commonwealth of Nations.” Thus, to stop any action by Pakistan to give jurisdiction on the ICJ about the Kashmir dispute, India has excluded the competence of the ICJ to hear disputes involving India with another member of the Commonwealth. Pakistan also filed a reserved declaration (updating a previous declaration in 1960) excluding disputes prior to the declaration. Therefore, the ICJ appears to lack in compulsory jurisdiction to entertain Pakistan’s claim on the Kashmir issue.
India’s ratification of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Convention) in 1949 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. Pakistan ratified this convention in 1948. It provides jurisdiction to the ICJ in respect of disputes relating to “interpretation, application or fulfilment” of the convention. However, given India’s declaration, consent of both the parties is necessary to invoke the ICJ jurisdiction.
Despite these obstacles, Pakistan can seek an advisory opinion (through UNSC) on IOJ&K from the ICJ. Under Article 65 of the UN Charter, the ICJ has the power to issue an advisory opinion on any legal question. Under Article 96, the Security Council or the General Assembly is authorised to request the ICJ for an advisory opinion on any legal question. Thus, Pakistan may entreat the Security Council or the General Assembly to ask the ICJ for an advisory opinion on IOJ&K.
International Criminal Court: The jurisdiction of the International Criminal Court (ICC) is attracted in offences of genocide, crimes against humanity, war crimes and the crime of aggression under Article 5 of the Rome Statute of the ICC. As Pakistan is not a party to the Rome Statute, it cannot directly invoke the jurisdiction of ICC. However, despite that a state is not a party to the Rome Statute, the UNSC under Article 13(b) is empowered to refer a crime to the prosecutor of the ICC. Article 13(b) states as “The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in accordance with the provisions of this statute if a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.’’ Thus, again, Pakistan can approach the UNSC to refer to the ‘crime of aggression’ in IOJ & K to the ICC.
In a nutshell, India’s unlawful move on August 5, 2019 and subsequent gross violations of human rights in IOJ&K has internationalised the Kashmir issue. The UNSC consultation on Pakistan’s request reaffirmed that the international community acknowledges the existence of the Kashmir dispute. The UNSC needs to appreciate that the Kashmir issue is an immediate and grave threat to regional and international peace and security. It is UNSC’s obligation under the UN Charter to enforce its resolutions regarding plebiscite in IOJ&K keeping politics aside. The UNSC should also refer the Kashmir dispute both to the ICJ for judicial settlement and to the ICC for the investigation, trial, and punishment for India’s crime of aggression in IOJ&K.
The writer is an advocate in the Supreme Court of Pakistan