PAKISTAN TO TAKE KASHMIR ISSUE TO ICJ VIJAYALAKSHMI RAJU BASICS OF LAW Sat, Sep 07, 2019, at ,12:10 PM Pakistani officials have said that they will approach the International Court of Justice (ICJ) over the Kashmir issue, weeks after India revoked the special status to Jammu and Kashmir. Pakistan’s decision comes days after 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 attempts by Pakistan and its all-weather ally China to internationalize the issue. An overwhelming majority in the UN Security Council stressed Kashmir is a bilateral matter between New Delhi and Islamabad. “An in-principle decision has been taken to take the issue of Kashmir to the International Court of Justice,” Foreign Minister Shah Mehmood Qureshi told ARY News TV. “The decision was taken after considering all legal aspects.” He said the law ministry would soon issue more details. Separately, the Special Assistant to the Prime Minister on Information, Firdous Ashiq Awan, said that the Cabinet in-principle granted approval to the decision to take the Kashmir issue to the ICJ. The case will be filed on the basis of an alleged violation of human rights in Kashmir, she said, adding that the government has also decided to hire the services of lawyers of international repute to file and pursue the case. Earlier this month, Prime Minister Imran Khan told a rare joint sitting of Pakistan’s Parliament that he will raise the Kashmir issue at every forum, including the UN Security Council, and also take the matter to the ICJ. Tensions between India and Pakistan spiked after India abrogated provisions of Article 370 of the Constitution to withdraw Jammu and Kashmir’s special status and bifurcated it into two Union Territories, evoking strong reactions from Pakistan. India has categorically told the international community that the scrapping of Article 370 was an internal matter and also advised Pakistan to accept reality. Officials said Pakistan was encouraged to seek the ICJ’s intervention after India took the issue of Kubhushan Jadhav to the world court. Jadhav, 49, a retired Indian Navy officer, was sentenced to death by a Pakistani military court on charges of “espionage and terrorism” in April 2017 following which India had moved the ICJ, seeking a stay on his death sentence and further remedies. In July, the ICJ ordered Pakistan to undertake an “effective review and reconsideration” of the conviction and sentence of Jadhav and also to grant consular access to India without further delay. DOES THE ICJ HAVE JURISDICTION? The next step will depend on whether the ICJ has jurisdiction in this matter. According to Shiju Mazhuvanchery, a professor at Christ Academy Institute of Law, Bengaluru, the last time Pakistan took India to the ICJ was over the Atlantique incident of 1999, when India shot down a Pakistani Breguet Atlantic maritime patrol aircraft. Then, the ICJ refused to get involved in the matter, citing a 1974 declaration by India that the ICJ would not have jurisdiction over internal matters or over matters to do with dealings between present or former Commonwealth nations. “At that time, the ICJ rejected their petition because the ICJ jurisdiction comes either through a mutual agreement between parties, or where there is a treaty and where the treaty provides the ICJ with jurisdiction. In the first case, the parties have to give a declaration beforehand accepting the jurisdiction of the ICJ,” said Mazhuvanchery. He said that the ICJ is unlikely to have jurisdiction in this dispute, although Pakistan is likely to try to move the ICJ over alleged human rights violations by India. In the case of Jadhav, however, the ICJ was able to take up the matter because both India and Pakistan were signatories to the Vienna Convention with regards to the principle of granting consular access.