Updated: Aug 5
Understanding the provisions regarding jurisdiction in the Statute
It is commonly accepted that by virtue of signature and ratification of the Statute of the International Court of Justice, a country accepts the jurisdiction of the court. However, the Jurisdiction of the court as mentioned in the Article 36 of the statute 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. In addition to this provision, the statute goes on to further state that declarations may be submitted by states to recognize the compulsory jurisdiction of the court ipso facto and without any special agreement in relation to any other State accepting the same obligation. The statute has also clarified in later provisions that the declaration can be unconditional or conditional based on reciprocity of the several or certain other states, on time as well. This article clarifies that it is important for the parties to either refer the case and accept the jurisdiction on that particular issue or by the way of declaration accept ipso facto jurisdiction of the court on questions of international law and breach of international obligations.
The Republic of India accepted the court’s ipso facto jurisdiction for the first time in 1956 by a declaration pursuant to Article 36(2) of the statute. India has since modified the declaration and the most recent declaration was submitted in 2019. The declaration represents an important source for understanding the Indian policy and their approach towards the International Court of Justice and conflict resolution in general.
Blocking third-party intercession into disputes with Neighbors
The declaration specifies the type of disputes related to India that shall be excluded from the jurisdiction of the International Court of Justice regardless of the said declaration. Paragraph one of the declaration seeks to exclude any disputes in which the parties to the dispute have agreed or will agree to have recourse to other methods of settlement. The possible intention or reason for including this paragraph is to ensure that the International Court of Justice can never admit its jurisdiction over the dispute relating to Kashmir between India and Pakistan. This would ensure that there is no adjudication on the Kashmir issue by the international court. It was decided at the Shimla summit of 1972 by both parties i.e. India and Pakistan that any differences or disputes related to Kashmir will be resolved by peaceful means through bilateral negotiations. The paragraph in the declaration in addition to the 1972 agreement in Shimla has given the Indian government a way to avoid any future discussion on the issue of Kashmir in the International Court of justice. The inclusion of the said paragraph clearly indicates that the Indian government has a clear policy of ‘no third-party interference’ in relation to Kashmir.
This entire arrangement also allows India to maintain status quo with respect to Kashmir since the pre-requisite for negotiation with Pakistan on Kashmir is the complete end of state-sponsored terrorism by Pakistan against India. As long as the terrorism continues, India will not come to the negotiation table and they have also prevented the International Court or United Nations from stepping into the matter, effectively ensuring the status quo for India. The interesting observation from the declaration is not that India has closed doors on adjudication over the issue related to Kashmir but it is the closing of doors on any sort of litigation with Pakistan other than those arising out of a treaty specifically. The second and fourth paragraph of the declaration mentions disputes with any current or former commonwealth members and disputes related to aggression, hostility, self-defence or resistance to aggression, the fulfilment of obligations imposed by international bodies respectively. Owing to the above-mentioned paragraphs of the declaration, it is inconsequential that the dispute is in relation to the skirmish at the border, ceasefire violation at the border or any other armed conflict. All such issues have been placed out of the jurisdiction of the International Court of Justice in accordance with the declaration submitted by India.
It is important to note that cases like that of Kulbhushan Jadhav can still be filed by India regardless of such a declaration since those cases are not filed by virtue of jurisdiction under Article 36(2) but it is Article 36(1) which allows for cases being filed if treaties and conventions in force direct them to this court. India thus was successful in filing application against Pakistan on the basis of Optional Protocol on Vienna Convention on consular relations which is ratified by both the parties.
Paragraph ten, clause (a) of the declaration further limits the possibility of cases in relation to the status of its territory and delimitation of frontiers. Since the declaration already has limited the possibility of litigation on Kashmir sufficiently, the intention behind drafting this clause has to be different. This was added in the declaration of 1974 by India which could possibly be in response to the court’s decision in the Rights of the passage over Indian Territory case with a view of avoiding any future such applications being entertained against them.
In addition to the exclusion of disputes involving armed conflict, another important point to be noted is the mention of “fulfilment of obligations imposed by international bodies”. This helps India in avoiding any sort of discussion on India’s obligations under the existing or any future Chapter VII Resolutions of the Security Council either in relation to Kashmir or any other dispute and also helps to avoid adjudication on obligations under other international bodies.
Indian strategy towards cases arising out of Customary International Law
The changes in the declaration also include the addition of phrase including the measures taken for the protection of national security and ensuring national defence to the fourth paragraph of the declaration. The possible reason for such an inclusion can be due to the question of jurisdiction in cases of obligation arising out of Customary International Law. The application that was filed by the Republic of the Marshall Islands in the year 2014 had brought forth a claim against the Indian government on the basis of violation of obligations under the Customary International law. It was for customary obligations arising out of the NPT and specifically Article VI. Even though in the said case India was successful in proving that there was no legal dispute between the two countries, the threat of similar applications on the basis of customary provisions being filed to the ICJ still existed. The mention of measures taken for the protection of national security and national defence helps India in avoiding similar applications since India has always maintained that their nuclear stockpile exists due to the sustained threat from neighbouring countries and negotiations have stalled due to unwillingness of the permanent members to negotiate on the same.
In addition to paragraph four of the declaration, the seventh paragraph has been drafted in such a manner that it aids India in avoiding cases arising out of the obligations of customary international law. The paragraph 7 excludes “disputes concerning the interpretation or application of a multilateral treaty to which India is not a party; and disputes concerning the interpretation or application of a multilateral treaty to which India is a party unless all the parties to the treaty are also parties to the case before the Court or the Government of India especially agree to the jurisdiction.” If another application is to be filed over the principles of customary law arising out of non-proliferation treaty similar to the one filed by the Marshall Islands, then India would only accept the jurisdiction if countries like the United States and the People’s Republic of China also accept the jurisdiction of the court and become parties to the said case filed. This helps them avoid any sort of litigation on such matters since both the United States and China are unlikely to do accept the jurisdiction of the court on this matter. Thus, the provisions of the declaration sufficiently assure India of avoiding litigation in relation to customary obligations regarding negotiations for the cessation of the arms race and their Nuclear Weapons programme for the near future.
The declaration reflects that India prefers to resolve disputes through bilateral negotiations and wants to avoid the intervention from the International court of justice to the maximum extent possible. The declaration has made it almost impossible for the court to admit a case related to the dispute of Kashmir and it has also extensively closed doors on litigation with Pakistan. The terms of the declaration signify that India’s interpretation of conflict resolution which points towards bilateral negotiations and opposes any sort of third-party interference is not limited to Kashmir but extends to all disputes. In terms of Indian foreign policy, they have made their intentions clear by also reserving a right to terminate the declaration as and when they deem fit.