Kashmir and ICJ’s Advisory Jurisdiction

Image Source: Govt urged to refer Kashmir issue to International Court of Justice in wake of Myanmar verdict – World – DAWN.COM

Pakistan has often pondered upon taking the Kashmir dispute before the International Court of Justice (‘ICJ’). However, the ICJ’s ability to adjudicate the Kashmir dispute depends upon its jurisdiction concerning the same. In this regard, it is important to briefly mention the nature of ICJ’s jurisdiction.

The ICJ is the principal judicial organ of the United Nations (‘UN’).[1] “Only States may be parties in cases before the Court” and the “Court shall be open to the States Parties to the present Statute.”[2] Considering this, the State Parties (to the ICJ Statute) may refer the matter to the Court via a “compromissory clause in a treaty” or “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…”[3] However, through a declaration under Article 36(2) and the reservations excluding specific disputes from the Court’s jurisdiction, India effectively eliminated any semblance of jurisdiction vis-a-vis Kashmir.[4] The legality of such a reservation can be the subject of a different blogpost. However, for this research piece, we will focus on the Court’s ‘Advisory Jurisdiction’.

Indeed, the Court “…may give an advisory opinion on any legal question at the request of whatever body may be authorised by or in accordance with the request of the United Nations to make such a request.”[5] It is stated under Article 96 of the UN Charter:

“(1) The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal questions.

(2) Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the court on legal questions arising within the scope of their activities.”

Issue of Kashmir

As recognised by the Security Council’s Resolution 47 (1948), Kashmir is a disputed territory.[6] Since the continuation of a ‘dispute’ would “…endanger international peace and security”[7] the Resolution called for both India and Pakistan to hold a “free and impartial plebiscite to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan.”[8] However, this plebiscite is yet to see the light of the day.

Considering the disputed nature of the territory, Article 370 of the Indian Constitution ensured a “special” and “autonomous” status to the ‘Indian Administered Kashmir’ (‘IAK’). In addition, the 1972 Simla Agreement recognised the “line of control” (‘LOC’) as a de facto border between the ‘Pakistan Administered Kashmir’ (‘PAK’) and the IAK, resulting from the ceasefire of 17 December 1971, with both sides bound not to alter it unilaterally.[9]

However, on 5th August 2019, the Indian government unilaterally revoked Article 370.[10] Moreover, the ‘Kashmir Reorganisation Act 2019’ extended the provisions of the Indian Constitution to the entire IAK and bifurcated the territory into the “Union territory of Ladakh” and the “Union territory of Jammu and Kashmir.”[11] This legal reform did not merely terminate the autonomous status of the IAK but may have unilaterally altered, in violation of the Simla Agreement, the 1971 LOC from a de facto to de jure border between the PAK and the IAK. In addition, the change of status of the IAK without the above-mentioned ‘plebiscite’ goes against the grain of the SC Resolution.

It is important to note that the Kashmir issue does not merely involve a territory disputed by two States, but the right to self-determination of the Kashmiri people as well. Denial of plebiscite and change of status from an ‘autonomous’ to a ‘Union territory’ of the IAK has implications vis-à-vis the right to self-determination of the Kashmiri people. Moreover, after the 2019 revocation, the Indian Government imposed restrictions on movement and communication, and detained political leaders, on the premise of security and countering terrorism, resulting in widespread human rights violations.[12]

Hence, it is important for the ICJ, as a beacon of ‘peaceful settlement of international disputes’, to determine the question of Kashmir. Such determination will have deep implications not merely on the collective right to self-determination of the Kashmiri people, but also on the human rights of individual Kashmiris.

Procedure to request an advisory opinion

Whether it is the General Assembly, or the Security Council, that requests the Court to give an opinion, they are required to complete “a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question”.[13] The UN Secretariat does this by preparing a dossier containing a collection of all the relevant documents that will shed light upon the questions, according to Article 65(2) Statute of the Court.

Nevertheless, the General Assembly needs a two-thirds majority vote from its members present and voting, under Article 18(2) UN Charter, to request an opinion in concerning.[14] The Security Council, on the other hand, needs an affirmative vote of nine members under Article 27(3), UN Charter.[15]

Advisory Opinion without State Consent?

It is also pertinent to ask whether the ICJ can determine the Kashmir dispute through an advisory opinion without India’s consent. From the introductory paragraph, it seems that States’ consent is essential for the Court’s ability to adjudicate any dispute under its contentious jurisdiction. Indeed, in the Eastern Carelia Advisory Opinion provided by the Permanent Court of International Justice (PCIJ), where one of the concerned parties –Russia – refused to involve a third-party intervention in the dispute with Finland,[16] the Court recognised that “independence of states” is a fundamental principle of international law and reiterated that “no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement.”[17]Hence, the Court refused to give an advisory opinion because that would have settled a dispute between Russia and Finland without Russian consent.[18]

However, in the Interpretation for Peace Treaties,the ICJ refused to accept the Eastern Carelia principle, which considers state consent as “ a jurisdictional requirement for the performance of the advisory function.”[19] The Court observed that, although “consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious cases,”[20] The situation is different regarding the Court’s advisory jurisdiction, even when the issue relates to a pending dispute between States.[21] The ICJ went on to state that since its advisory opinions have no binding force, no State “can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take.”[22]

However, while the absence of consent may not be relevant to the question of advisory jurisdiction, it may cause the Court to declare the request inadmissible on the grounds of judicial propriety.[23] Specifically, in the Western Sahara Advisory Opinion, the Court recognised that refusal to give an advisory opinion due to lack of consent is possible if “[..] consideration of judicial propriety should oblige the Court to refuse an opinion.”[24]

Therefore, one might argue that the Kashmir issue is ‘inadmissible’ on the grounds of ‘judicial propriety’ because, firstly, it is a bilateral dispute between India and Pakistan and, secondly, India refuses to allow a third-party intervention in terms of dispute settlement. However, the Court, in the Wall Advisory Opinion, found that the ‘construction of wall’ was not merely a ‘bilateral dispute’ between Israel and Palestine. Instead, given “the powers and responsibilities of the United Nations in questions relating to international peace and security, [..] the construction of the wall must be deemed to be directly of concern to the United Nations.”[25]In this regard, the Kashmir dispute should not be deemed any different, given that it is not merely a bilateral issue between India and Pakistan but concerns the larger issue of international peace and security.

Hence, it is within the ambit of the UN’s responsibilities of ‘international peace and security’ to request an advisory opinion from the Court concerning the Kashmir issue. Moreover, the Court may also consider the question as ‘admissible’ for dealing with larger issues of ‘international peace and security’, as it involves two nuclear armed states, violation of human rights, right to self-determination, etc.

Framing the Question

In any case, the General Assembly will first have to pass a resolution that agrees to seek an advisory opinion from the ICJ, and then could file a request that contains a question and relevant evidence. There is no doubt that the Kashmir issue would likely benefit from a broadly framed question that allows for implications of the region’s complex history and the multitude of actors involved. The history of conflict around Kashmir is, indeed, integral to the current situation. Based on past requests from the GA and their various topics, this request may include reference to Kashmir’s ethnoreligious composition, the 1947 partition, Article 370, revocation of the autonomous status, insurgent groups, India’s military presence, the UN’s history of involvement, etc. Hence, the GA could frame the question as:

What are the legal consequences of a change of status of the Indian Administered Kashmir under International Law, including the 1949 Geneva Conventions and relevant Security Council and General Assembly Resolutions? Or

What are the legal consequences of India’s military presence in the Indian Administered Kashmir under International Law, including the 1949 Geneva Conventions and various instruments of International Human Rights Law?

Conclusion

In conclusion, the UN has a clear opportunity, through its General Assembly, to request an advisory opinion from the ICJ on the Kashmir issue. The ICJ’s advisory opinion will allow for the determination of a complex legal question. Even though the Court’s advisory opinion is not binding, it may have a persuasive impact on the concerned quarters.

Moreover, it is within the UN’s responsibilities for international peace and security to make the first move and request an advisory opinion. If any process does take place, it must concern the realities of the issue, including the region’s complex history and evidence of human rights violations that have taken place. Conversely, in the absence of any such process, the Kashmir issue is unlikely to end, and the Kashmiris will suffer further incalculable human and political damage.

[1] Charter of the United Nations, 24 October 1945, 1 UNTS XVI (‘UN Charter’), Article 1.

[2] Ibid, Art 34(1) and Article 35(1).

[3] Ibid, Article 36(1)(2),.

[4] ICJ, ‘Declarations recognizing the jurisdiction of the Court as compulsory: India’ (27 September 2019) https://www.icj-cij.org/en/declarations/in, accessed 25 April 2022.

[5] Statute of International Court of Justice, San Francisco, 24 October 1945 (‘ICJ Statute’), Article 65 (1).

[6] United Nations Security Council Resolution 47 (1948), 21 April 1948, S/726.

[7] Ibid, p. 4.

[8] Ibid, p. 4.

[9]Agreement on Bilateral Relations between the Government of India and the Government of Pakistan, India-Pak., 2 July 1972, 858 U.N.T.S. 71 (‘Simla Agreement’).

[10] Ishita Chakrabarty, ‘Self-Determination: What Lessons from Kashmir?’ (2021) 31 Ind Int’l & Comp L Rev 35, p. 36.

[11] The Jammu and Kashmir Reorganisation Act, 2019 No. 34 of 2019 (9 August, 2019); See Ishita Chakrabarty (n. 10).

[12]See n.1 (Inshita, 2021); also see, Human Rights Watch. ‘India: Abuses Persist in Jammu and Kashmir’, (hrw.org, 4 August 2020) https://www.hrw.org/news/2020/08/04/india-abuses-persist-jammu-and-kashmir accessed: 11.05.2022.

[13] ICJ Statute (n. 5), Article 65 (2).

[14] UN Charter (n. 1) Article 18(2).

[15] Ibid, Article 27(2).

[16] PCIJ, Status of Eastern Carelia, Advisory opinion, Series B No 5 (23 July 1923).

[17] Ibid, p. 27.

[18] Ibid, p. 28

[19] Philip Burton, ‘Searching for the Eastern Carelia Principle’, (2019) 8(1) ESIL Reflection, https://esil-sedi.eu/esil-reflection-searching-for-the-eastern-carelia-principle/, accessed 26 April 2022, p.5.

[20] ICJ Reports, ‘Interpretation of Peace Treaties, Advisory Opinion’, 1950, p. 65, at p.71. Also see ICJ Reports ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion’, 2004, p. 136 para 47.

[21] Ibid.

[22] Ibid.

[23] Philip Burto (n. 19) p.6.

[24]ICJ, Western Sahara, Advisory Opinion, Reports 1975, p. 12. p. 25, para. 32.

[25] Wall Advisory Opinion (n.20) p.158, para.49.

Bibliography

Primary Sources

United Nations documents:

Charter of the United Nations, 24 October 1945, 1 UNTS XVI (UN Charter).

Statute of International Court of Justice, San Francisco, 24 October 1945 (ICJ Statute).

United Nations Security Council Resolution 47 (1948), 21 April 1948, S/726.

International Court of Justice publications:

ICJ, ‘Declarations recognizing the jurisdiction of the Court as compulsory: India’ (27 September 2019) https://www.icj-cij.org/en/declarations/in, accessed 25 April 2022.

ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion), https://www.icj-cij.org/public/files/case-related/53/9361.pdf, accessed 9 April 2022.

ICJ, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion), https://www.icj-cij.org/public/files/case-related/169/169-20170623-REQ-01-00-EN.pdf, accessed 6 April 2022 [95] – [141].

ICJ Reports, Legal Consequences of the Construction of a Wall (Advisory Opinion) 2004.

ICJ Reports, Interpretation of Peace Treaties (Advisory Opinion) 1950.

PCIJ, Status of Eastern Carelia (Advisory Opinion) Series B No 5 (23 July 1923).

Other Legal Documents:

Agreement on Bilateral Relations between the Government of India and the Government of Pakistan, India-Pak., 2 July 1972, 858 U.N.T.S. 71 (Simla Agreement).

The Jammu and Kashmir Reorganisation Act, 2019 No. 34 of 2019 (9 August, 2019).

Jammu and Kashmir Reorganisation (Adaptation of State Laws) Order, 2020, New Delhi (31 March 2020).

Secondary Sources:

Ishita Chakrabarty, ‘Self-Determination: What Lessons from Kashmir?’ (2021) 31 Ind Int’l & Comp L Rev 35.

Baba Tamin, ‘Kashmiris equate India’s new domicile law with Israel’s ‘settler-colonial’ project’, (Middle East Eye, 1 April 2020) April 2020) https://www.middleeasteye.net/news/indias-kashmir-domicile-order-equated-settler-colonial-project, accessed 25 April 2022.

Human Rights Watch, ‘India: Basic Freedoms at Risk in Kashmir’ (6 Aug 2019), https:// www.hrw.org/news/20 19/08/06/india-basic-freedoms-risk-kashmir, accessed 25 April 2022.

Philip Burton, ‘Searching for the Eastern Carelia Principle’, (2019) 8(1) ESIL Reflections, https://esil-sedi.eu/esil-reflection-searching-for-the-eastern-carelia-principle/, accessed 26 April 2022.