Why Pakistan cannot take India to the International Court of Justice?

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International Court of Justice lies in Hague which is the international court that adjudicates a case between the states. The agent have to be the states and not individuals to file a case there.

Talking about the jurisdiction of the International Court of Justice, there are two types of jurisdiction and they are a) Contentious jurisdiction and b) Advisory opinion. The jurisdiction of ICJ is not like that of the local domestic and high courts. The ICJ doesn’t have compulsory jurisdiction, ordinary or extra-ordinary like the domestic courts.

The Contentious jurisdiction is the jurisdiction based on consent.It is when two states consent on taking their disputes to ICJ to have it adjudicated. The jurisdiction of ICJ is established either by mutual consent or if there is a clause in their bilateral treaty which explicitly mentions ICJ to be the adjudicator of the case. It has a binding force.

The Advisory opinion on the other hand doesn’t give concrete decision which are binding but opinions on what countries should do. It is an exercise of respecting the sovereignty of the states.

Now, lets talk about the Kashmir issue. India and Pakistan going to ICJ for adjudication of the Kashmir issue is simply not plausible nor feasible. Pakistan can only take India to ICJ for the contentious jurisdiction because it in a way has a binding effect but it has to be based on consent of both states.

Why would India consent to be taken to ICJ with Pakistan at first place? It is a no-brainer because the whole issue of Kashmir is internal affair of India. Pakistan has nothing to do with the internal affairs of India. Secondly, could India take Pakistan to ICJ in the matters of Baluchistan? India certainly has no legitimate concerns to it. Why should Pakistan have legitimate interest in the issue of internal affairs of India?

Secondly, for the contentious jurisdiction, when two states have agreed to a treaty then if the treaty has mentions of jurisdictional clause i.e. both parties agree and has explicitly mention to take the dispute to ICJ for adjudication then the two countries can go to ICJ, if not the ICJ has no jurisdiction.

Talking of India and Pakistan, both have agreed to settle the Kashmir issues through agreement which is known as “Shimla Agreement” which was concluded at Shimla, Himachal Pradesh, India on 2nd July, 1972. The pact or agreement says to achieve durable peace in the sub-continent and advancing welfare of the people both states agree to:

i) the relationship between the two countries shall be governed by UN Charter,

ii) the two countries shall resolve their disputes by bilateral negotiations and by peaceful means mutually agreed upon by the state

In the above article i and ii, there is no mention of “jurisdictional clause” or the explicit mention of “ICJ” as the adjudicator of the disputes between the two states. It is explicitly mentioned that both the states shall solve their differences by bilateral negotiations and by peaceful means.

It is for the reason His Excellency Imran Khan, the prime minister of Pakistan  and His Excellency Narendra Modi, prime minister of India was advised by His Excellency UN General – Secretary Antonio Guterres to exercise “maximum restraint” as per UN Charter and also to  resort to “Shimla Agreement” to solve the difference between the two states.

The UN General – Secretary also has the opinion that Pakistan and India should honor the “Shimla Agreement” to solve their difference based on the treaty mutually concluded by them. It is also no surprise that most countries of the world and members of United Nations has advised PM Imran Khan to honor the “Shimla Agreement”. Therefore, Pakistan taking India to the ICJ is not possibly when most of the member of the UN as well as its General – Secretary have the opinion that both India and Pakistan should retort to “Shimla Agreement” to solve the issue bilaterally.

Now, lately PM Imran Khan in his address to the nation had politically criticized the PM Modi led BJP government for being a racist in acting accordance to the Rastra Swayam Sangh (RSS) ideology for segregating the Kashmiri people from their political agenda. But a fact that he missed is the “Mass Exodus” of Kashmiri Pandits by terrorist.

Can the world infer that PM Imran Khan is against the re-settlement of Kashmiri Pandits in their own place? If so, who could we term as racist? If PM Imran Khan only supports Kashmiri people inhabiting in Kashmir but not the resettlement of Kashmiri Pandits in their original homeland, who should all the viewers conclude to be racist?

PM Imran Khan and his all predecessors who have agreed and kept mum in the issue of “Kashmiri Pandits” should they be labelled racist because of their unwillingness to respect the natural right of “Life, Liberty and Property” of Kashmiri Pandits?  PM Imran Khan being the most progressive prime minister of Pakistan should send a message to the world by respecting the “Human Rights” of Kashmiri Pandits.

(Bishnu Pokhrel is a Human Rights and Gender Justice student from Nepal. email: bishnupokhrelawyer@gmail.com)

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