Pakistan is still smarting under the Narendra Modi government's decision to abrogate the special status of Jammu and Kashmir. Pakistani Prime Minister Imran Khan has announced that his country would challenge it in the International Court of Justice (ICJ). However, Pakistan seems to be divided over the move with its law ministry saying on Thursday that it is still mulling over it.
The ICJ is the principal judicial organ of the United Nations to settle legal disputes between two or more countries. Pakistan has portrayed the Narendra Modi government's decision to revoke special status of Jammu and Kashmir and bifurcation of the state into two Union Territories as illegal.
Pakistan has been campaigning internationally for restoration of pre-August 5 status of Jammu and Kashmir. In its bid, the Imran Khan government is likely to approach the ICJ over Kashmir.
Adjudication process at the ICJ is multi-layered. At first, the ICJ determines if it has the jurisdiction over the matter. Chapter two of the ICJ charter deals with the subject. Article 36 of the ICJ charter sets out two conditions for a matter to be taken up for adjudication by the 15-member judicial body.
In the first instance, if the two countries agree that the matter is a dispute between them, they can approach the ICJ and settle it legally. In the case of abrogation of special status of Jammu and Kashmir by making Article 370 inoperative in the state, Pakistan considers it a dispute while India has called it an internal matter.
India has argued that abrogation of special status of Jammu and Kashmir does not alter the status quo on the Line of Control (LoC) with Pakistan-occupied Kashmir or on the Line of Actual Control (LoAC) with China-occupied Aksai Chin.
India, therefore, is unlikely to agree to Pakistan's stand that abrogation of special status of Jammu and Kashmir is a bilateral dispute. This rules out one possibility of the ICJ hearing the Kashmir issue.
The second condition for an ICJ hearing of a matter requires violation of a bilateral or international treaty. Pakistan has referred to the 1948 UN resolution on Kashmir saying that ending special status of Jammu and Kashmir is violation of the same. But the UN position does not help Pakistan in its attempt to seek ICJ intervention.
The UN Resolution 47 called for a plebiscite subject to two conditions - that Pakistan must withdraw all troops and militia from Jammu and Kashmir and that India will reduce the number of forces in the state to a size required to maintain law and order, and hold a referendum. Pakistan never fulfilled the first condition making the resolution meaningless.
Later in the aftermath of 1971 India-Pakistan war, the UN adopted another resolution whereby it regarded Kashmir a bilateral dispute to resolved through dialogue between the two. The Shimla agreement between India and Pakistan also states that the two countries will resolve all their disputes including the issue of Kashmir bilaterally through dialogue.
Recently, when Pakistan approached the UNSC over abrogation of special status of Jammu and Kashmir, UN Secretary-General Antonio Guterres referred to the 1972 Shimla accord while refusing to entertain Pakistan's complaint.
This makes Pakistani Prime Minister Imran Khan's decision to move the ICJ a futile exercise that is more likely to end in another embarrassment for the country in the international court. Earlier in July this year, Pakistan had failed to justify its military trial of former Indian Navy officer Kulbhushan Jadhav.
The ICJ ruled that Pakistan violated the Vienna Convention that requires a signatory member to grant consular access to an accused of foreign nationality. It also directed Pakistan to review the trial of Kulbhushan Jadhav, who was awarded death sentence by a military court in Pakistan on charges of espionage. India has refuted Pakistan's claim saying that Kulbhushan Jadhav was abducted from Iran and taken to Pakistan.
On August 5, Indian government withdrew special status granted to Jammu and Kashmir under Article 370 and Article 35A of the Constitution. Pakistan responded to the move by downgrading diplomatic ties with India and launching a diplomatic outreach to world powers. The country has not got much success in its attempt even though China spoke for it in a closed-door meeting of the UNSC members.