Context: Pakistan has said it will approach the International Court of Justice (ICJ) over the Kashmir issue, weeks after India revoked the special status to Jammu and Kashmir.

India has categorically told the international community that the scrapping of Article 370 of the Constitution to revoke the special status of Jammu and Kashmir was an internal matter and also advised Pakistan to accept the reality.

Background:

Pakistan’s decision comes days after a rare closed-door consultations on Kashmir by the UN Security Council which ended without any outcome or statement from the powerful 15-nation UN organ, dealing a huge snub to Islamabad and its all-weather ally China to internationalize the issue.

Possibilities of ICJ’s jurisdiction if Pakistan takes the Kashmir issue to the ICJ?

There are two ways, inter-alia, in ICJ statute under which Pakistan can take Kashmir issue to ICJ: one is Article 36 (1) and second is Article 36 (2).

1. As far as Article 36 (2) is concerned, it will be very difficult or almost impossible for Pakistan to take India in ICJ on Kashmir as India has made a declaration on 18 September 1974 where it has kept itself being reserved from ICJ jurisdiction on two instances, inter-alia, i.e., first, that preventing the Court from entertaining cases involving two members of the Commonwealth (Article 2 of the declaration) and, second, its multilateral treaty reservation (Article 7 of the Declaration).
2. If Pakistan goes to ICJ on Kashmir under Article 36 (1) which follows as “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”.

The compulsory jurisdiction of the Court under Article 36 (1) has three dimensions. Jurisdiction exists:

1. In respect of all cases which parties refer to it,
2. In terms of all matters specially provided for in the Charter of the United Nations, or
3. In terms of all matters specially provided for in treaties and conventions in force.

So Pakistan may well approach ICJ jurisdiction under Article 36 (1) if either there is any treaty and convention in force exist between India and Pakistan on Kashmir issue or otherwise dealing with the issue, or under the provision of UN Charter.

What the agreements say?

Shimla Agreement between India and Pakistan on 2 July 1972 restricts the two countries, pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation (Article 1 (ii)), and more particularly in case of Jammu and Kashmir, neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations (Article 4 (ii)).

Under Lahore declaration on 21 February 1999, in its operative para, the two countries agreed to intensify their efforts to resolve all issues, including the issue of Jammu and Kashmir (Article 1), and shall intensify their composite and integrated dialogue process for an early and positive outcome of the agreed bilateral agenda (Article 2).

So, what next?

Therefore, if the jurisdiction of the Court is founded on particular “treaties and conventions in force” or under the UN Charter under Article 36, paragraph 1, of its Statute, it becomes irrelevant to the Court to consider the objections to other possible bases of jurisdiction.

If Pakistan goes to ICJ against India’s violation of the principles and purposes of the Charter, as also envisaged and reiterated under Shimla agreement (Article (1)), pursuant to Article 36 (1) of the ICJ Statute, still Court will have no jurisdiction to entertain the Application on the basis of Article 36 (1) of the Statute as UN Charter contains no specific provision of itself conferring compulsory jurisdiction on the Court.

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

1. 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”.
2. 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.
3. 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.