Pakistan v India at the International Court of Justice, on Kashmir?

[This piece was translated and published by BBC India (Hindi) on 22 August. It is for a non-legal audience mainly, and is only focussed on the potential International Court of Justice case on Kashmir.]

Pakistan has indicated publicly that it plans to approach the International Court of Justice (ICJ) in relation to Kashmir. 

The news of a potential ICJ case on Kashmir arises in a particular context – that of the revocation of Article 370 of the Indian Constitution changing the status of Kashmir, accompanied by a near complete communications black-out, with very little information coming out of the region. 

While few details are available currently regarding the potential ICJ case, there are a few issues to consider.   

ICJ Proceedings

The first issue to take up is who can approach the court, and how this is done. The ICJ is an international court that is meant to resolve disputes between states. This means that breaches by a state of international law obligations can be brought before the court. It is however not a human rights court, and individuals cannot approach the court.  

There are multiple steps in a case before the ICJ – and one of the first is the determination of whether the court has jurisdiction, which means the ability to hear the case. There are two ways usually by which this can happen: the first is through the ‘compulsory jurisdiction’ of the court, under Article 36 (2) of the Statute. This means that in case of a dispute between states, they can approach the court. However, both India and Pakistan have ‘reservations’ to this Article – meaning, unless they agree to the court’s involvement, it will be unable to address the dispute. 

The second method to approach the court is for the violation of a particular treaty in accordance with Article 36 (1) of the Statute, which in turn must indicate that the ICJ is the body that can settle the dispute. It was this second method that was used in the Jadhav case, in which the Vienna Convention on Consular Relations permitted approaching the ICJ. 

Speculating, the first route – compulsory jurisdiction under Art. 36 – is unlikely to be agreed to by India, so it will be for Pakistan to approach the court via the route of a treaty violation. What treaty Pakistan chooses to make its case, remains to be seen.        

As a bit of legal history, apart from the recent Jadhav case, there have also been previous proceedings before the ICJ between the two states. Two cases did not move beyond the initial stages, with the disputes being withdrawn in the Appeal relating to the jurisdiction of the ICAO Council (India vs. Pakistan), and the Trial of Pakistani Prisoners of War (Pakistan v. India). In the Aerial Incident of August 10, 1999 (Pakistan v. India), the finding of a lack of jurisdiction by the ICJ resulted in the termination of the proceedings. 

This potential new case comes just about a month since the ICJ decision in the case of Kulbhushan Jadhav, decided by the court on 17 July 2019 in favour of India. Pakistan initially indicated it would comply with the orders of the court, but with the current crisis this now seems to be on the back burner. 

Implications of approaching the ICJ 

There are legal consequences of approaching the ICJ, as well as international implications that arise from a legal action such as this. 

On the legal front, approaching the ICJ will have to be on the particular basis indicated above. While the arguments that Pakistan intends to make are yet to be made public, it will likely be based on violations of human rights in the region, and the ensuing international law obligations on states. And as long as the cause of action continues – i.e. the current information blackout, the detention of thousands, accompanied by allegations of human rights violations – the case will only be strengthened. Even if eventually the court declines to get involved on the basis of a lack of jurisdiction, approaching the court could also have the effect of furthering the dispute between the states.  

What is also missed out in the focus on bilateral relations, as well as regional peace and security, is the situation of ordinary Kashmiris. For the first time, the United Nations Office of the High Commissioner for Human Rights issued reports on human rights violations in Kashmir in the past two years. Multiple international fora have now been apprised of the current situation in Kashmir. The UN Security Council held a closed door members only consultation a few days ago. While this has not resulted in a subsequent more formal discussion – so far – nonetheless this is an important step, since the previous discussions on the region were held over forty years ago. 

At the end of the day, regardless of whether the ICJ case makes it past the jurisdiction phase, the fact that it is being broached is itself noteworthy. The actions that have precipitated this internationalization are also continuing, fuelling further fears of rights violations. No doubt this will continue to draw international focus, including potential international legal action.