Pakistan Status Quo on Kashmir Issue

Law cannot provide freedom unless and until it’s given by the people. Kashmir is the prime example of this theory. Kashmir’s quest for freedom has now been ignored by the world, as the west refuses to exert pressure on its regional Indian ally. It seems like the dreams for self-determination will be a dream for ever.

After Indian government scrapped Article 370 there has been reports of mass human right violations by the Indian army over general Kashmiri population. There have been false media speculation on twitter, face book and all social media regarding how Kashmiris are happy with the current government. However, those who are involved in such false propaganda failed to appreciate the fact that it doesn’t really take a genius to find out what happens when freedom is taken away in the darkness of the night. An intriguing question that a noble mind may ask is why did India stripped Article 370 in the darkness of the night. Is this only a tale of revenge or is there some other economic agenda hidden behind the veil of such a decision. Let’s have a look;

Geographic Significance of Kashmir:

Kashmir‘s significance in the International Geo political world have grown exponentially. The strategic position it holds has become a large topic of discussion in the dinner table of the think tankers and the politician. If India has full control of Kashmir, than India will have direct access to Central Asia. Pakistan, however, is the only hurdle which India has to confront in order to be a political leader of South Asia. India has however, taken its first step to over come the big rock (Pakistan) from its way. By scrapping Article 370 India has taken a part of Kashmir and now India has it eyes set on Pakistan dominated Kashmir; and over time with its economic strategies it will try to take over all of Kashmir. The fact that India has taken over Kashmir is big sign of its future agenda. While, China is backing up Pakistan but it cannot do much when it comes to security council and voting powers. Central Asia is a geographical bridge which between Europe and other parts of the world; therefore having a direct access will definitely make India stronger than ever before Furthermore, there are other significant benefits in having greater access to Central Asia. The major benefit which India can acquire from having access is the accessibility of abandon natural resources; this is exactly what both China and India are craving for and beside that the, consumer markets – with a population of nearly 70 million are open for exploitation.

Therefore, all these comes with a cost; and cost of such dominance is Kashmir’s freedom and Kashmir’s life. The majority of Muslim in Kashmir can never allow India’s dream to have control over central Asia come true. Therefore, by ethnically cleansing the entire Muslim population or destabilizing or restructuring the population demography is the only way out for India to achieve its dreams.

In order to achieve its dream India has already started its mission on legal massacre or can be termed a legal genocide. This kind of genocide happens when state somehow legalize killing of mass population with their own armed forces.
Now the question arises what Pakistan can do about it. Pakistan tried its best to resort to Security Council but failed as nobody backed Pakistan on Kashmir agenda except for China. The only way Pakistan can get justice for Kashmiris is to make an application on International court of Justice. Let have a little legal analysis on whether Pakistan has a locus standi.

Brief Legal Argument :

There are two ways in the ICJ statute under which Pakistan can take the Kashmir issue to the ICJ; one is Article 36 (1) and second is Article 36 (2).Article 36 in Chapter II of the ICJ Statute lays down the rules for invoking Court’s jurisdiction. Pakistan might go to ICJ on the Kashmir issue under Article 36 (1) which reads as follows: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” The compulsory jurisdiction of the Court under Article 36 (1) has three dimensions Jurisdiction exists:

(a) In respect of all cases which parties refer to it;

(b) In terms of all matters specially provided for in the Charter of the United Nations; or

(c) In terms of all matters specially provided for in treaties and conventions in force.

The first hurdle for Pakistan is to establish the fact that state is a party to the dispute. In Northern Cameron case it was held that there has to be a dispute there has to be a presence of dispute of legal nature and not political nature. Pakistan can say that the fact that India took over Kashmir and now threating to take over Pakistan side of Kashmir give rise to dispute of legal nature. The recent case of Khubhushan Jhadav can be set as an example where ICJ has intervened in country on sovereign matter with request of other party. Pakistan can claim that India’s hostile decision has adversely affected Pakistan’s statuesquo in Pakistan dominated Kashmir and therefore Pakistan’s right has been violated. Pakistan can easily cross the first hurdle of establishing an statusquo. However, Pakistan needs to be careful when it come to second hurdles.

The second hurdle or argument which India can raise is that it does not have any agreement with Pakistan to settle dispute in ICJ. Well if that is the case than Pakistan can rightly argue that the decision of Khulbhushan Jhadav is void as there was no agreement so Pakistan is not obliged to really entertain the decision of ICJ on counsellor access. The principal of state consent is a focal point in the matter. But after the Jhadav case scenario has somewhat changed ICJ has rightly over steeped its jurisdiction and it decision is directly in conflict with the state consent theory.

Also, Pakistan can argue that there has been a breach of International Human right by Indian regime. The fact that violence has well speeded over Pakistan side as well therefore it give Pakistan a good and strong ground to apply. Kashmir is an independent country its legitimacy was conferred by Article 370 of India’s Constitution. It worked as a bridge between India and Kashmir. The fact that it’s no longer there makes Kashmir a fully Independent state and therefore by locking up Kashmir in the darkness of the night in itself is a biggest of breach of human rights issue. Even though there has been a case where it was said that Jus cogen has no effect on Article 36. but this precedence is not a rule of thumb this can be over turned if Pakistan can show (and its highly likely that Pakistan will be successful in showing) that its sovereignty is at stake therefore, giving Pakistan a right to apply to ICJ. India might have opened a Pandora’s box in Khulbhushan Jhadav case. Pakistan can take India to ICJ not only with Kashmir Issues but all the issues it has pending so far.

Pakistan &ICC

On the other hand Pakistan can also apply to International Criminal Court (ICC). International Criminal Court is designed or established to punish Individual responsible for heinous crimes against humanity or genocide and so on. The ICC is less universal, but deals with international criminal law. It has a very narrow scope of crimes it can prosecute (war crimes, genocide, crimes against humanity and *maybe* aggression). Criminal law holds individuals liable for acts (a ‘state’ can’t be criminal as such, because it’s an abstract notion). The fact that Modi government and its decision is responsible for such mass killin therefore RSS and BJP may be prosecuted under ICC rather than ICJ. This is one of the avenues which Pakistan still needs to explore. India is not a party to ICC. The major objections of India to the Rome Statute are: Since ICC is subordinate to UNSC, permanent members are vested with unbridled powers. Terrorism and nuclear weapons usage is not in the purview of ICC. There is criticism that India on signing up the Rome Statute, would immediately come under ICC jurisdiction for human right violations under AFSPA, abuses in Naga movement, Kashmir conflict.

 

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