Introduction
Indian state came under siege once again on 25th of September, 2013. One more terrorist attack on the soil of India was carried out by terrorists who attacked Army camp and a police station in Jammu and Kashmir. It’s part of an unending streak of attacks at will by militants which has found India as sitting duck.These terrorist attacks have been bone of contention between us and our hostile neighbour Pakistan regarding the nature of origin of these merchants of death. Both sides have been washing off their hands from the alleged involvement in these activities. Pakistan says they are home grown in India and India says they come from across the border by infiltrating the Kashmir side of border and through other ways from Pakistan. Whatever be the truth one thing is for sure if the militants are coming they must have a source either in India or from outside India. These attacks are facts and fact exists in space and time. Therefore, India must accept that either these terrorists are home grown or they have their roots across the border in Pakistan. If Indian establishment believes that these terrorists have their base in Pakistan then it is an issue between India and Pakistan and this is a case of international terrorism. And therefore this calls for an international measure to solve this dispute. Whether you call it bilateral or multilateral the issue becomes international the very moment two states are embroiled.Now, India needs to rethink its policy of dialogue when it comes to India-Pakistan relationship. I fail to understand the ambiguity in India’s approach to this menace they recognize that terrorism is a global phenomenon, yet they wish to treat it as dialogue without recourse to other forum where dialogues would yield meaningful results.
Pakistan and its legal claim over Kashmir
It is apposite here to see the legal basis of the claim of Pakistan on the territory of Kashmir. Neither factually nor legally have they had any claim. Historically, Kashmir can only be identified with Indian civilization. The Kashmir dispute is not at all a dispute; it’s an arrogance to be united in the name of religion. Mere fact that Kashmir valley is predominantly lived by Muslims, therefore, this entitles Pakistan to champion the cause of Kashmir or Kashmiris is a farce. We have seen the plight of minority in Pakistan and Bangladesh. What they took from India in the name of religion they could not preserve it for more than twenty years and their own population separated itself from current Pakistan. Interestingly, Bengalis were their majority part of hitherto population. Therefore, even if there could have been any moral claim towards integration of Kashmir in the name of religion was lost by Pakistan post 1971.
At the time of independence the integration of princely states was to be made through instrument of accession as provided by Indian Independence Act, 1947 (the Act). Initially the king of J&K thought to remain independent by choosing not to merge his state with either of the dominion as provided under the Act. However, the invasion by Pakistan through tribesmen and regular soldier made Hari Singh sign the instrument of accession in favour of Indian dominion. India now had the legal ground to send the troops to save its territory from the Pakistani intruders. What legal, factual, historical, cultural, or moral claim Pakistan has over Kashmir, except the fact that it is predominantly inhabited by people believing in Islam. Dismemberment of Pakistan exposed the fact that nation-state can be carved out in the name of religion. Entire Hindu and Buddhist population of J&K will become second grade citizens as the Constitution of Pakistan requires a person to be a muslim before s/he can hold any constitutional post.
The new recipe
I will try to come up with what I call “external pressure”, i.e. international legal mechanism, which will be supplemental to the pressure that might be exerted through bilateral mechanism which may be termed as “internal pressure”. So far internal pressure has failed measurably, as neither Pakistan has shelved its policy of “wounds by thousand cuts” nor terrorism as their foreign policy which was the objective of bilateral mechanism. It must be stated that issue of terrorism is separate from the issue of Kashmir dispute. What is being argued is that external pressure is to be invoked only to unearth the Pakistan’s involvement in terror tactics in international relations. The fear that issue of Kashmir would be internationalized is ill founded. As the attacks carried out by the terrorists from Pakistan is not limited or restricted to the region of J&K rather it has affected all parts of India and has equally troubled the international community as it has become a safe haven for international terrorist organization. Therefore, policy on issue of Kashmir and its place in Indian Union remains unaffected from international legal scrutiny and maintain its bilateral status. Moreover, SC resolution Number 47 (the Resolution) requires that J&K must be reunited as it was prior to Pakistani invasion in 1947-48, for those who might make a hue and cry for the call for self determination in Kashmir valley, which is a political act anyway. The Resolution in question has itself authorized India to maintain a minimum of armed forces, in case of complete withdrawal of Pakistani tribes men and other nationals, which never took place. The Indian obligation under the resolution is so placed that its meaningful reduction of troops would take place only when J&K was made free from these tribesmen and nationals, which were to be ascertained with the help of Commission so established to assist the UN and parties in conflict to solve the Kashmir dispute in amicable fashion. The resolution provided,
“1. The Government of Pakistan should undertake to use its best endeavours:
(a) To secure the withdrawal from the State of Jammu and Kashmir of tribesmen and
Pakistani nationals not normally resident therein who have entered the State for the purposes
of fighting, and to prevent any intrusion into the State of such elements and any furnishing of
material aid to those fighting in the State;
(b) To make known to all concerned that the measures indicated in this and the following
paragraphs provide full freedom to all subjects of the State, regardless of creed, caste, or
party, to express their views and to vote on the question of the accession of the State, and
that therefore they should co-operate in the maintenance of peace and order.
2. The Government of India should:
(a) When it is established to the satisfaction of the Commission set up in accordance with the
Council's Resolution 39 (1948) that the tribesmen are withdrawing and that arrangements for
the cessation of the fighting have become effective, put into operation in consultation with the
Commission a plan for withdrawing their own forces from Jammu and Kashmir and reducing
them progressively to the minimum strength required for the support of the civil power in the
maintenance of law and order;…”
1. S/RES/47 (1948), available at
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/47%281948%29 (last accessed on 18-10-2013)
Now, a non withdrawal by Pakistan of its tribes or nationals triggered the non-application of paragraph 2 of the Resolution. The 1972 Simla Agreements retorts the UN charter and respect of territorial integrity of both the parties.
The legal dispute is the use of force by Pakistan through terrorism in Indian Territory. The legal mechanism would be the use of ICJ to expose Pakistan’s use of its territory to launch terrorist act n Indian soil. Therefore, the question is can we go beyond bilateralism as it has only made Pakistani army to use it as safety valve against India?
Let’s say India, for one, meant business and these terror attacks leads to full scale war between these two nuclear capable countries, the ramifications would be far reaching not only to growing economic stature of India but also to life and limb of millions ofcombatants and civilian both. If the devotion in the South Block is to exhaust all peaceful means before unthinkable but not inevitable takes place. The option left is the international forum. International law was developed to create international institution which would facilitate the states to promote and evolve their international relations by coming to a united platform, why aren’t we using it.
The international relations provide for international law so that these relations are respected and honoured. The international community after years of ordeal and mistakes has established United Nations (UN). The UN in India is normally perceived to be Security Council or General Assembly and perhaps few specialized agencies of UN system, beyond this UN has no role to play as far as India’s global desires are concerned. I, most respectfully, would like to submit UN means the sum total of six organs GA, SC, ECOSOC, TC, ICJ and Secretariat as given under Art.7. So, when we say we must strengthen UN, we mean all these organs, as without them UN cannot be conceived.
UN charter and pacific settlement of disputes: purposes and principle of UN charter
A) The purpose:
World War II brought unimaginative destructions to human and humanity. The charter came with a mandate to prevent the recurrence of scourge of war to be inflicted on human. The scheme of charter is constitute international community where maintenance of international peace and security was made the monopoly of the UN. Art.1 and 2 of the Charter lay down the purpose and principle of UN respectively. The purposes are divided into four head, firstly to maintain international peace and security . In order to maintain this international peace and security two types of mechanism has been carved out, one is collective measures to remove and prevent the threats to international peace and suppression of act of aggression, second is pacific settlement of dispute, in accordance with principles of justice and international law. Second purpose of UN is to develop friendly relations among states and to take effective measures to strengthen universal peace. Third and fourth purposes are to “achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and to be a centre for harmonizing the actions of nations in the attainment of these common ends.” The purposes can only be achieved if the principles are to be followed by the member states.
B) The principle:
The principle mainly revolves around obligation of the states to solve their disputes through peaceful means . A meaningful pacific settlement of dispute could only be possible if the states agreed to give up the prerogative of using force in their international relations as and when they yearn for it. In this regard Art.2(4) providefor a path breaking obligation on the states where they have agreed to restrain in use of force in their international relations which affect the political independence or territorial integrity of another state. The obligation under Art.2(4) was such a major breakthrough that World Court on various occasions have declared the obligation as jus cogens , i.e. an obligation from which no derogation is allowed making it an absolute duty of the states to not to use force to solve their dispute. And the only way a dispute could be resolved under UN charter is through amicable means.The obligations were
2. Art.1, UN Charter
3. ibid
4. Art.2(3), UN Charter
5. The resolution was declared to customary international law by the World Court in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports p.190. The court observed, “The International Law Commission, in the course of its work on the codification of the law of treaties, expressed the view that 'the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens' (paragraph (1) of the commentary of the Commission to Article 50 of its draft Articles on the Law of Treaties, ILC Yearbook, 1966-II, p. 247).”
6. See, Art.53, Vienna Convention on Law of Treaties, 1969.
further extrapolated in General Assembly(GA) resolution 2625 which provided for the principles of friendly relations among states. The principles in the resolution lays down, inter alia, are following:
Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect. Nothing in the foregoing shall be construed as prejudicing the positions of the parties concerned with regard to the status and effects of such lines under their special regimes or as affecting their temporary character.
Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands including mercenaries, for incursion into the territory of another State.
Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.
It should not be a herculean task for the Union of India to establish that Pakistan is in flagrant violation of this resolution which has attained the status of customary international law given the experience India has of cross border terrorism by Pakistan. Exchanging dossier with Pakistan would yield little whereas similar dossier to World Court would expose Pakistan before international community as Nicaragua did to the USA when it brought an action before the ICJ and got the decision more or less in its favour that too ex-parte.
C) Exception to use of force:
The charter does recognize the right to self defense by the parties in the case of an “Armed Attack” under Art.51. However, the essay is not exploring the possibility of use of force as any form of mean to resolve to the dispute before we exhaust the all the mechanism of peaceful settlement of dispute, for the purpose of this article this mechanism is judicial
7. GA/Res/25/2625 Available at http://www.un-documents.net/a25r2625.htm (last accessed on 22-10-13). The resolution was declared to customary international law by the World Court in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports p.188
solution. The good faith is crucial to make any attempt serious in international law . The true good faith for UN charter would be when parties seriously exhaust all the means to resolve their dispute peacefully and save world from scourge of all kind of war which may spiral into a world war or may remain local in nature involving the two states.
The judicial role of International Community
UN is a part of the international legal system with a specific mandate to maintain international peace and security. India is a signatory to UN and therefore is bound by the obligation that it has under UN charter. Pacific settlement of legal dispute is facilitated through institutional assistance of one of the organ of the UN, i.e. ICJ. ICJ is constituted for this very purpose, i.e. to solve dispute between states through amicable means. Ithas two kinds of jurisdiction namely contentious and advisory. It doesn’t have compulsory jurisdiction. Contentious jurisdiction is further of two kinds one is referral of a specific dispute by the parties under Art.36(1) of the ICJ statute and another is Art.36(2) which envisages a utopian compulsory jurisdiction through unilateral declaration. In other words under Art.36(2) member states were suppose to issue a declaration making ICJ’s jurisdiction compulsory. India has made great number of reservation from the compulsory jurisdiction of the ICJ as it has stripped ICJ out of all the possible instances of jurisdiction especially involving Pakistan.
India can approach ICJ in its advisory or contentious case. There would always be chance of Pakistan arguing that ICJ has no jurisdiction based on principle of reciprocity under Art.36 (2).
8. See, Art.26, Vienna Convention of Law of Treaties, 1960. The good faith principle is associated with rule of pacta sunt servanda. For a detailed meaning of rule of good faith in fulfilling an obligation of a given treaty it should be interpreted in the context of treaty and in light of subsequent practices. For this see, Sir Ian Sinclair, Vienna Convention on Law of Treaties, , Second edition, Manchester United press, p.119.
Available at
http://books.google.co.in/books?id=igcNAQAAIAAJ&pg=PA119&lpg=
PA119&dq=good+faith+vclt&source=bl&ots=mGuTrz8
UY_&sig=0uI8Co9sHk_e5_S3JDC90CwJZs&hl=en&sa=X&ei=mQhoUoTMFs
iIrQfg4YE4&ved=0CDUQ6AEwAg#v=onepage&q=good%20faith%20&f=false (last accessed 22-10-13)
9. A pacific settlement of dispute would ensure that dispute does not escalate into armed conflict. The importance of the principle can be understood by the fact that Chapter VI of the charter is dedicated to the pacific settlement of dispute. Art.33 makes it mandatory for the state parties to solve their dispute through pacific settlement by using the word shall. The means of pacific settlement of disputes are not only judicial. There are other means of pacific settlement of dispute envisaged under it, such as “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” For judicial settlement UN charter has constituted ICJ. There are no other institutions or body that could provide judicial settlement of pacific settlement of dispute which could endanger international peace and security.
10. See, Land and Maritime Boundarybetween Cameroon and Nigeria,Preliminary Objections, Judgment,I.C.J. Reports 1998, pp. 288-290. The court observed as following,
Ironicallyit is Pakistan, who has taken India to ICJ in Case Concerning Aerial Incident of 10 August, 1999. India shot down this case on the basis of jurisdiction clause under Art. 36(1) and (2) both by arguing that there is no treaty in which India and Pakistan has mentioned ICJ as dispute resolution body and India has made reservation regarding the jurisdiction that the court may have.
India may similarly take action by invoking ICJ’s advisory jurisdiction if they are apprehensive of this measure to be preliminarily objected by Pakistan in contentious jurisdiction. General Assembly or Security Council may be asked to seek advisory opinion on the same question that could have been raised in contentious jurisdiction under Art.35 read with Art.96 (1) of the Charter . Since, General Assembly will not be subjected to the privileged action that few state have under Art.27(3), i.e. veto power, which is the case with Security Council, India need not worry about the political game plan of the Pakistan to thwart such action by arm twisting the USA. Since, the US may need Pakistan constantly on its side owing to strategic location of Pakistan to keep a constant watch in Afghanistan, or to use Pakistani army to fight the war against terror in its absence, if not fight than at least to keep curb of the terror camp in area bordering Afghanistan. The advisory question may be framed in this fashion:
Would it be permissible under UN Charter to send UN mission to inspect the Pakistani territory and dismantle the terror outfits? Is presence of terror modules or training camps in present in Pakistan not a violation of principle of non-intervention under Art 2(4)?
“ The Court has on numerous occasions had to consider what meaning it is appropriate to give to the condition of reciprocity in the implementation of Article 36, paragraph 2, of the Statute. As early as 1952, it held in the case concerning Anglo-Iranian Oil Co. that, when declarations are made on condition of reciprocity, "jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it" (I.C.J. Reports 1952, p. 103). The Court applied that rule again in the case of Certain Norwegian Loans (I.C.J. Reports 1957, pp. 23 and 24) and clarified it in the Interhandel case where it held that:
"Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance which it has not expressed in its own Declaration but which the other Party has expressed in its Declaration ... Reciprocity enables the State which has made the wider acceptance of the jurisdiction of the Court to rely upon the reservations to the acceptance laid down by the other Party. There the effect of reciprocity ends." (I.C.J. Reports 1959, p. 23.)”
11. Art.35 provides that member states may bring a situation before Security Council or General Assembly. The situation is any dispute, or any situation which might lead to international friction or give rise to a dispute which may endanger international peace and security. Art.96 states that “The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.”
Irregulars under International Law and law of State Responsibiliy: World Court’s pronouncement
Since, the last part of the advisory question involves the issue of non-state actors, a succinct idea of their position under international law warrants mention of legal provisions. General Assembly resolution 2625 on Friendly Relationship has emphatically laid down a duty that requires a state from refraining to use its territory for sending irregulars to another state. The argument that is thrown to us by Pakistan is that it is non-state actors who are behind all these activities, and a state is not responsible for their actions. Indeed it is extremely difficult for any state to man each of its citizens and monitor their act, and be held responsible for their acts. Additionally, there is a difference between sending and people coming voluntarily of their own volition, therefore law of state responsibility would be crucial in determining the attribution of an act of an individual on the state. World Court has on various occasions applied the law of state responsibility to determine an international wrongful act . A state is responsible if it has committed an international wrongful act (IWA) and an IWA is committed when an act or conduct is attributable to the state and this attributed act is violation of an existing international obligation for the state in question . The law of state responsibility is now codified by International Law Commission (ILC) in form Articles on Responsibility of States for Internationally Wrongful Acts, 2001 (ARSIWA). Art.8 of the ARSIWA provides for the situation in which a conduct of a private individual, so called non-state actors or irregulars, would be attributable to the state. If the state is question has effective control over the conducts of these private individuals and world court has discussed this law at of effective control in great detail in Nicaragua case and recently in Genocide Convention case. Therefore, there is ample jurisprudence in law of state
12. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America), ICJ, Merits, Judgement, §§105-116. Also see, Armed Activities on the Territory of the Congo (DRC v. Uganda), ICJ,Judgement, 19.12.2005, §160: “The Court concludes that there is nocredible evidence to suggest that Uganda created the MLC. Uganda hasacknowledged giving training and military support and there is evidence tothat effect. The Court has not received probative evidence that Ugandacontrolled, or could control, the manner in which Mr. Bemba put such assistance to use. In the view of the Court, the conductof the MLC was not that of ‘an organ’ of Uganda (Article 4, International Law Commission Articles on Responsibility of State for internationally wrongful acts, 2001), nor that of an entity exercising elements of governmental authority on its behalf (Article 5). The Court has considered whether the MLC’s conduct was ‘on the instructions of, or under the direction or control of’ Uganda (Article 8) and finds that there is no probative evidence by reference to which it has been persuaded that this was the case. Accordingly, no issue arises in the present case as to whether the requisite tests are met for sufficiency control of”.
13. See, Art.1 and 2, Articles on Responsibility of States for Internationally Wrongful Acts, 2001.
responsibility and given the factual situation of the cross border terrorism by Pakistan it should not be difficult for India to convince the court.
Conclusion
A decision of ICJ would be beneficial to Pakistan and India both, Pakistan’s oft repeated words which are never trusted by the India would be exposed to international community. International community has also been troubled by Pakistan turning out to be a safe haven to the so called jihadi’s. Pakistani military would also be controlled and brought to democratic set-up of International community if not Pakistan’s own democratic establishment as they would lose face to their own people. A democratic and free from mujahideen/jihadi Pakistan is in the interest of everyone who forms the corpus of international community. Pakistan might be on a way to become a failed state but international community would fail itself if they allow a young adolescent Pakistan who has strayed from right path by resorting to their policy of India bashing. International community must make Pakistan realize that they might have their existential identity in anti India rationality, but this theory has become counterproductive. India must shun its policy of keeping it bilateral and not involving international community, as long as international terrorism is concerned if we have just cause world we see it. It will put more pressure on Pakistan than the pressure exerted through dialogue. Popular opinion which is bed-rock for any democracy is running out of patience in India.
I am not arguing right to self defence that India may take under Art 51, UN charter. Even that case has matured in favour of India. Self defence has requirement of armed attack in international law. The attack and the streak of attacks on India’s soil, and specially on Indian Army camp and Police Station is no more private and isolated attack of few terrorists, it’s a concerted and well thought out attack on Indian state. The threshold was met with arguably in the attack of 26/11. The selection of targets unequivocally suggests it. It would not be hard for the international community to see India’s patience and resolve to solve this dispute through pacific settlement. Otherwise world will be responsible for failing India and Pakistan and pushing India to the corner to act against the spirit and nature of international law. India also has the responsibility to project itself not as a soft state with no teeth but rather as a state with might yet benevolent in nature and believing in the theory and application of jus contra bellum, a grundnorm for the mandate of UN charter.
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