Quintessentially, the United Nations Charter is an international treaty; its Article 33 in Chapter VI provides for mechanisms for pacific settlement of disputes. It provides that the parties to any dispute, shall, in the first place, and in cases where international security and peace is likely to be endangered, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. The extension of the concept of the judicial settlement is further elaborated in Chapter XIV that deals with the International Court of Justice (ICJ). The ICJ is the principal judicial organ of the UN and is commonly called the World Court. The ICJ is constituted under Article 92 of the UN Charter, which links it to the erstwhile the Permanent Court of International Justice by referring to the statute annexed with the UN Charter and by specifically stating that the ICJ’s concept is based on the PCIJ that was constituted under Article 14 of the Covenant of the League of Nations. The ICJ is expected to contribute to the international security and peace by deciding on disputes between the states that have concurred to its jurisdiction. This expectation may be viewed differently by different states depending upon their interests. In case of Pakistan, little scholarly research was carried out on the utility of the ICJ.
SCOPE OF THIS WRITE-UP
In this article, however, a brief survey of the cases to which Pakistan was party in the ICJ is carried out. The website of the Court shows that it has two types of cases: contentious cases and advisory cases. According to the Handbook of the International Court of Justice (6th Edition), from 18th April 1945 to 31st December 2013, the Court has dealt with 129 contentious cases and 26 advisory cases. Pakistan has never invoked the advisory jurisdiction of the ICJ. It has, however, been a party to four cases of contentious nature. A brief introduction of each case is presented hereunder followed by an analysis on the subject:
1. Jurisdiction of the Council of the International Civil Aviation Organization Case (1971)
The origins of the dispute are not epigrammatic; the ICJ judgement in the archives does not clearly spell out the facts, and instead focuses on the technical aspects of the matter. As available in the media, the story, however, went thus: On 30th January, 1971, an Indian Fokker plane, called Ganga, was allegedly hijacked by two persons from Kashmir, and was diverted from Srinagar in the India-Occupied Jammu and Kashmir to Lahore, Pakistan. The passengers in the plane were released and the plane was burnt. In retaliation, India banned over-flights of Pakistan’s civil aircraft over its territory. For Pakistan, at that point in time, it meant disconnecting the shortest air route between the East and the West Pakistan. So, Pakistan took the matter to the Council of the International Civil Aviation under the 1944 International Civil Aviation Convention and the International Services Transit Agreement. India objected to the assumption of the jurisdiction by the Council. The Council rejected India’s objection. India filed an appeal in the ICJ against the Council’s rejection order. The appeal was dismissed by the ICJ. India took the stance that the two treaties on which Pakistan based its claim had been suspended during August 1965 hostilities, and the over-flights had been suspended, which were later on resumed as a result of an Agreement in 1966. Therefore, the two treaties were not in force at the time of institution of proceedings in the ICJ. The ICJ rejected the cavalier argument of India and the case was decided in favour of Pakistan as far as jurisdiction of the Council of the International Civil Aviation was concerned.
2. The Trial of Pakistani Prisoners of War Case (1973)
Brief facts of the case are that after the surrender of Pakistan Army in 1971, ninety-two thousand Pakistani military and civilian personnel were taken as Prisoners of War (POWs) by India. The United Nations Security Council in its Resolution No. 307 of 1971, inter alia, in Para 3, called all the ‘concerned’ to ‘apply in full’ the Geneva Conventions of 1949 with regards to ‘wounded and sick, the prisoners of war and civilian population’. The right to repatriation of the POWs is contained in Article 118 of the Geneva Convention Relative to the Treatment of the Prisoners of War, and as per the Commentary of the International Committee of the Red Cross, the right is inalienable, which means that no conditions could be attached to this right to repatriation. Amongst other issues, India and Pakistan kept negotiating the repatriation of the POWs. In the meanwhile, Sheikh Mujibur Rehman demanded India to hand it over 195 POWs that Bangladesh wanted to prosecute for crimes against humanity and genocide. Vide Presidential Order No. 8 of 1972, the President of Bangladesh (which was by then not recognized by Pakistan as an independent state) announced that it would prosecute the ‘collaborators of Pakistan’ for war crimes.
In May 1973, Pakistan instituted proceedings against India in the ICJ. As a provisional measure, it asked the Court to direct India to hand over to Pakistan the 195 POWs being demanded by Bangladesh. The case was under consideration at the ICJ, when on 28th August 1973, India and Pakistan signed Delhi Agreement and agreed to repatriate the POWs including 195 those wanted by Bangladesh. The agreement of repatriation of 195 POWs did not come on easy terms. In return, the Indians and Bengalis negotiated the recognition of Bangladesh by Pakistan. The ICJ did not decide on the issue and the case was removed from the list of the ICJ on the request of Pakistan. An important point, which may merit mention here, is that Pakistan based its claim, inter alia, on the ground of exclusive claim of jurisdiction under Article VI of the Convention on the Prevention and Punishment of the Genocide 1947 to which both Pakistan and India were signatories. Pakistan’s claim was legally sound as by then it had not recognized Bangladesh: the strength of the argument, however, was not tested in the ICJ.
On 10th August 1999, Pakistan’s naval airplane Atlantique was shot down by Indian Air Force. The defence of India was that the airplane had violated its airspace. The matter was taken to the ICJ by Pakistan with a claim of 60 million dollars in reparation. India objected to the jurisdiction of the ICJ. The claim of Pakistan was based on Article 17 of the General Act for Pacific Settlement of International Disputes signed at Geneva on 26th September 1928 by the then Government of India. India took exception to the succeeding legal consequences of the General Act after it was declared independent in 1947. The ICJ discounted India’s exception and granted its plea for not being bound by the General Act of 1928. The case started on 21st September 1999 and ended on 21st June 2000.
4. Obligations Concerning Negotiations Relating to the Nuclear Arms Race and to Nuclear Disarmament Case (2015)
In an advisory case on the Legality of the Threat or Use of Nuclear Weapons on 8th July 1996, the ICJ, while analyzing Article VI of the 1968 Non Proliferation of Nuclear Weapons Treaty, observed:
“There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”
Based on the ‘obligation’ noted in advisory case, the Republic of the Marshal Islands (RMI) filed the case in the ICJ calling upon Pakistan to negotiate in good faith the NPT. The legal principles on which the claim is constructed are Erga Omnes (towards all) and the customary international law. The specific requests of RMI against Pakistan are:
a. That Pakistan has violated and continues to violate international obligation to negotiate in good faith nuclear disarmament control;
b. That Pakistan has violated and continues to violate its obligation with respect to cessation of nuclear arms race;
c. That Pakistan has violated its international obligation by blocking negotiations on a Fissile Materials Cut-off Treaty.
On 14th July 2015, the ICJ issued a press release stating therein that Pakistan’s request for extending time to file reply to the application of RMI has been granted. Pakistan has committed to submit its reply by 1st December, 2015. It may also be noted that the RMI has also instituted similar legal proceedings against India and the UK.
To be fair, a detailed analysis of the Pakistan’s experience with the ICJ warrants an independent research project. Based on the information discussed above, the following points are worth stating:
1. The ICJ is the principal judicial organ of the UN and by virtue of its composition and background, the expectations placed upon it and the role it is expected to play in the maintenance of international security cannot be overemphasized. In its working, it has rarely examined the real disputes. Its over – legalistic and formal approach has upended substantial issues, and more often than not, it has chosen to pettifog in the procedural maze of the international disputes.
2. The ICJ is excessively expensive and the developing countries like Pakistan have to think hundred times before they can institute legal proceedings in it: the developing countries are at a disadvantage before even the proceedings start.
3. In a developing country where the rule of law is not fully established, it is very difficult to see things from legal perspective. In Pakistan, the policymaking is embedded in emotional and political settings and the appreciation of legal matters is not fully employed in carving out a stance. The analysis of the cases narrated above shows that Pakistan chose to go to the ICJ in fits and startsk, not as a planned strategy to get a matter resolved.
For the developing countries, the language of international relations may be international law and not the military prowess. In case of Pakistan, given the proliferation of fora for global and administrative justice in the form of the International Criminal Court, the ICJ, the International Centre for Settlement of Investment Disputes (ICSID) and the EU’s Commission that monitors GSP Plus scorecard, there is a strong case for it to institutionalize the input of international legal studies into its policymaking. It can also patronize universities to produce scholars of international law to disseminate Pakistan’s narrative on different issues through discourse in academia.