Can Pakistan get the ICJ to undo India’s decision on J&K’s special status?

Headline : Can Pakistan get the ICJ to undo India’s decision on J&K’s special status?

Details :

In News:

  • Pakistan has decided to approach the International Court of Justice (ICJ) over the recent revocation of Jammu and Kashmir’s special status by India.

Telegram: https://t.me/ShubhraRanjanPSIR

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 .

ICJ’s jurisdiction:

  • 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

Hydroelectric Projects in India

Consider the following statements about Kishenganga River

1.      It is a tributary of river Satluj

2.      It is called Neelum in Pakistan

Select the correct statements

a       Only 1

b       Only 2

c       Both 1 and 2

d       Neither 1 nor 2

Explanation:

Solution (b)

The Jhelum has its source in a spring at Verinag in the south-eastern part of the Kashmir Valley. It flows northwards into Wular Lake (north-western part of Kashmir Valley). From Wular Lake, it changes its course southwards. At Baramulla the river enters a gorge in the hills. The river forms steep-sided narrow gorge through Pir Panjal Range below Baramula. At Muzaffarabad, the river takes a sharp hairpin bend southward. Thereafter, it forms the India-Pakistan boundary for 170 km and emerges at the Potwar Plateau near Mirpur. After flowing through the spurs of the Salt Range it debouches (emerge from a confined space into a wide, open area) on the plains near the city of Jhelum. It joins the Chenab at Trimmu.

The Kishenganga (Neelum) River, the largest tributary of the Jhelum, joins it, at Domel Muzaffarabad

Kishanganga Hydroelectric Plant

It is a dam which is part of a run-of-the-river hydroelectric scheme that is designed to divert water from the Kishanganga River to a power plant in the Jhelum River basin

Kishenganga is a river in the Kashmir region of India and Pakistan; it starts in the Indian city of Gurais and then merges with the Jhelum River near the Pakistani city of Muzaffarabad. When Kishanganga enters Pakistan, it is called “Neelam river.”

Ratle Hydroelectric Plant

The Ratle Hydroelectric Plant is a run-of-the-river hydroelectric power station currently under construction on the Chenab River, downstream of the village of Ratle in Doda district of the Indian state of Jammu and Kashmir.

The Chenab River is a major river of India and Pakistan. It forms in the upper Himalayas in the Lahaul and Spiti district of Himachal Pradesh, India, and flows through the Jammu region of Jammu and Kashmir into the plains of the Punjab, Pakistan. The waters of the Chenab are allocated to Pakistan under the terms of the Indus Waters Treaty.

Pakal Dul Dam

The Pakal Dul Dam is a proposed concrete-face rock-fill dam on the Marusadar River, a tributary of the Chenab River, in Kishtwar district of the Indian state of Jammu and Kashmir.

Pakistan, who relies on the Chenab downstream, views the dam as a violation of the Indus Water Treaty, whereas India states it is as per Treaty Provisions.

Lower Kalnai Hydroelectric Project

Hydroelectric power project on Lower Kalnai Nalla, tributary to river Chenab in Doda district of Jammu & Kashmir.

Miyar Hydroelectric Project

Miyar Hydroelectric Project is located in District Lahaul and Spiti, Himachal Pradesh on the Miyar Nallah which is a major tributary of Chenab River.

Baglihar Dam

It is a run-of-the-river power project on the Chenab River in the southern Doda district of the Indian state of Jammu and Kashmir.

In Jammu & Kashmir, Pakistan is fighting a hybrid war, and Indian response should also be in the hybrid domain”. Discuss.

Approach:

Introduce with Hybrid conflict

Talk about how Pakistan indulges in regular and hybrid wars against India and India’s response

Discuss why India needs to engage in hybrid war and what it involves

Conclude appropriately

Model Answer :

Hybrid war is one fought through a combination of conventional, irregular (efforts to win legitimacy and influence over the populations), and asymmetric (for example, terrorism, insurgency, guerrilla warfare etc.) means. It can include the combination of special operations and conventional military forces, intelligence agents, political provocateurs, media representatives, economic intimidation, cyber-attacks, and proxies and surrogates, terrorist, and criminal elements.

Pakistan’s hybrid war against India:

For the last 70 years, India’s response to Pakistan’s efforts at direct war have been professional and effective (1947, 1965 etc).

As a result, Pakistan has indulged in a hybrid conflict with India which extends to multiple domains, including promotion of radical ideology, creation of alienation among people, intimidation, and importantly, maintaining financial conduits for the unimpeded flow of money into the conflict system. Their cause is being furthered by the separatists in India.

Need for India to engage in Hybrid war:

In this conflict, India’s approach has been defensive, reactive and tentative. Fighting the adversary in a hybrid conflict, like the one in Jammu & Kashmir, through the military route has been ineffective.

There is an increasing body of opinion in India that the response to Pakistan’s hybrid war in Kashmir should be through hybrid warfare.

Methodology:

There is a need of for the national strategy to incorporate all elements of national power i.e. intellectual, economic, intelligence, cyber capabilities, scientific, business, trade and diplomatic.

Hybrid warfare has a strong espionage element and India needs an aggressive intelligence posture with an expertise and specialists from diverse fields like technology, economy, finance, culture, arts and politics.

Indian security community needs to indulge in information warfare and adopt proactive ways of bringing information operations to the fore while dealing with hybrid conflict.

Agencies, led by NIA, have recently been successful in targeting the financial support to radicalism and terrorism in Kashmir.

India also needs to develop the ability to conduct covert strikes in Pakistan to take out high value terrorist targets.

Hybrid warfare is not a new strategy. Since times immemorial, such tactics have been the essential instrument of the statecraft. India also has the capabilities, but not the experience. To deal with an enemy like Pakistan, hybrid war is the need of the hour. To this end, fault-lines in Pakistan need to be identified and effectively utilised for our geo-political ends.

Cyber attack – ransomware , NotPetya

  • It is a malicious software that blocks access to computers and data until a sum of money is paid. NotPetya is the second major global ransomware since WannaCry, which had infected about 3,00,000 computers across 200 countries in May. Similar to WannaCry, one of the means by which Petya spread was by exploiting the MS12-010 vulnerability, also known as EternalBlue. Microsoft had issued a security patch to fix it in March.
  • The Petya ransomware not only encrypts files, but also overwrites and encrypts the master boot record. It shuts down the system about an hour after the infection and asks for ransom on rebooting. Users will not be able to access the system till the infection is removed. The PC might be protected from the malware in case the user is able to disrupt the system reboot.
  • Ransomware is a piece of malicious software which takes control of your system and files. Upon taking over, it applies encryption on those files and asks for money for a key that can restore the files. The ransomware often scrambles file names and changes their extension.

Indus Treaty

Signed in 1960 by then Prime Minister Jawaharlal Nehru and then Pakistan President Ayub Khan, the treaty allocates 80% of water from the six-river Indus water system to Pakistan.

  • Beas, Ravi, Sutlej, Indus, Chenab and Jhelum from the Indus water system that flows from India to Pakistan. The Indus river basin spans parts of 4 countries (Afghanistan, Pakistan, India and China) in an area that is more than 30% arid.
  • Under the treaty, control over six north Indian rivers were divided between the two countries. India got control over the rivers Beas, Ravi and Sutlej whereas Pakistan got control over Indus, Chenab and Jhelum.
  • This is a unique treaty involving a third party. It was brokered by the World Bank.
  • A Permanent Indus Commission was set up as a bilateral commission to implement and manage the Treaty. The Commission solves disputes arising over water sharing.
  • The Treaty also provides arbitration mechanism to solve disputes amicably.