Headline : Can Pakistan get the ICJ to undo India’s decision on J&K’s special status?
- Pakistan has decided to approach the International Court of Justice (ICJ) over the recent revocation of Jammu and Kashmir’s special status by India.
Theme of the topic: The topic analysis the ICJ’s Jurisdiction over the Jammu and Kashmir case
About/; International Court of Justice (ICJ)
- The International Court of Justice (ICJ) is the main judicial organ of the United Nations (UN), established in 1945, after World War II to resolve international disputes.
- The seat of the Court is in The Hague (Netherlands).
- Of the six principal organs of the United Nations, it is the only one not located in New York(USA).
- The Court’s role is to settle, the cases in accordance with international law, legal disputes submitted to it by States.
- It gives advisory opinions on legal questions referred to it, but is not a criminal court.
- Composition: The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council.
- Official Languages: English and French
Note: Only countries are eligible to appear before the ICJ, and individuals, non-governmental organisations, corporations or any other private entities are not eligible .
- The nature of the ICJ’s jurisdiction is twofold:
- Jurisdiction in contentious Cases: Contentious jurisdiction involves States that submit the dispute by consent to the Court for a binding decision. It decides, in accordance with international law, disputes of a legal nature that are submitted to it by States.
- Advisory Jurisdiction: It gives advisory opinions on legal questions at the request of the organs of the United Nations, specialized agencies or one related organization authorized to make such a request.
Basis of ICJ’s Jurisdiction:
- The ICJ’s jurisdiction takes three forms: compulsory, special agreement, and treaty-based.
- Compulsory Jurisdiction: Any international legal dispute involving the UN Member States that have accepted the ICJ’s compulsory jurisdiction may be submitted to the Court, provided that all the States party to the dispute before the ICJ have accepted its compulsory jurisdiction.
- Special Agreement Jurisdiction: States may also submit a dispute to the ICJ by special agreement, accepting the ICJ’s jurisdiction only with regard to the specific dispute at issue.
- Treaty-based Jurisdiction: States may accept the ICJ’s jurisdiction with regard to particular areas of international law when they join a treaty that specifically provides that disputes will be submitted to the ICJ for resolution, such as the Convention on the Prevention and Punishment of the Crime of Genocide.
Is the ICJ’s Jurisdiction compulsory in Jammu and Kashmir case?
- India and Pakistan have filed compulsory declarations in 1974 and 2017, respectively.
- Filing such a declaration means that the concerned country (which acknowledges the compulsory jurisdiction of the ICJ) has the right to move the ICJ against any other country, which also accepts the same obligation, by filing an application instituting proceedings with the ICJ.
- However, it is not clear if the jurisdiction of the ICJ will be compulsory in the J&K case since India has repeatedly said that it is an “internal matter”.
Procedure for filing a case in the ICJ:
- In case of a unilateral application, 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”.
- However, Proceedings cannot begin until the country, against whom the application has been made (India. in this case), 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.
- 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.
What happens when the jurisdiction of the ICJ is disputed?
- In case there is a dispute related to the ICJ’s jurisdiction, the matter is settled by the decision of the ICJ itself guided by provisions given under Article 36 of the statute.
- The purpose of the statute is to “organise the composition and functioning of the court”.
Can the ICJ’s judgments be revised?
- A judgment can be revised only if there is discovery of a fact important to the matter which was not known to the ICJ and the party claiming revision when the judgment was first delivered.
- The party asking for a revised ruling needs to assure the ICJ that the presence of the fact wasn’t simply neglected.
Section : International Relation