Opinion: Taking Kashmir To ICJ
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Opinion: Taking Kashmir To ICJ


Opinion: Taking Kashmir To ICJ

Published on :13 Jun,2017 By :- UNT News

Astro India Automobile Pvt. Ltd, Jammu

Can the Kashmir Dispute, once again make it to the center stage of the International Politics and the United Nations? This question started making rounds in the diplomatic and media circles in India and Pakistan and few other world capitals after New Delhi choose to take the case of one of its officers Kulbushan Jadev under the custody of Pakistan on the charges of spying to the International Court of Justice. 
Some political commentators in India viewed the decision of taking Jadev case to the UN court as good a faux pas as that of Jawaharlal Nehru taking the Kashmir Dispute to the United Nations on January 1, 1948. From Mathai to Akbar, many have recorded Nehru, later on, was repentant about his decision and was highly critical and caustic about the International community and the UN. These commentators have also observed New Delhi’s decision to take  Jadev case to the ICJ has provided Pakistan an opportunity to take Kashmir DE Novo to the United Nations.  However,  some right-wing analysts in New Delhi believing  Pakistan as against India is an isolated country, so it will not take the risk of taking Kashmir to the ICJ  have been defending the action of the BJP government. It is more than understandable that the Nawaz Sharif government is not enthusiastic to take Kashmir problem in any its manifestation to the UN court. Minus, a very junior officer of the Pakistan Foreign Office, stating that the legal aspects of taking Kashmir to the ICJ are being examined there were no statements on this issue neither from any senior officer in Pakistan Foreign office nor Sartaj Aziz, Advisor to Prime Minister of Pakistan on Foreign Affairs. 
To put a seal on the debate in Delhi over going to the ICJ  with the Jadev case. And nudging Islamabad to use the opportunity for agitating before the UN court the Kashmir problem Indian External Affairs Minister Sushma Swaraj on past Monday categorically stated that ‘Pakistan cannot take Kashmir to the UN Court because both the countries are bound by the Shimla Agreement and Lahore Declaration to solve it bilaterally. The Minister also identified three “pillars” that govern talks with Pakistan: “We want to sort out all issues with Pakistan through talks bilaterally and not through the mediation of any group, country or associations. Talks and terror cannot go together. No flip-flop or one step forward-two steps backward.”  The Nawaz Sharif government may or may not use the opportunity provided by New Delhi for approaching the United Nations court for ensuring implementation of more than a dozen resolution passed by the United Nations Security guaranteeing the right to self-determination to people of Jammu and Kashmir. It may not seek it the intervention of the ICJ for ending the unabated human rights violations. But, the statement of the External Affairs Minister has renewed the debate if a bilateral agreement between two countries can supersede international agreements. It equally has brought once again brought into focus the Shimla Agreement, if it's any clause has subverted the right to self-determination guaranteed to the people. The Kashmir, despite our behaving ostrich, is an international dispute that continues to be on the United Nations agenda and any development in Kashmir causes a statement from the United Nations Secretary General. Shimla Agreement is just a bilateral agreement.  “It is a recognized fact; no bilateral agreement can override an international agreement. International agreements are binding for the nations, while as bilateral agreements between two countries that concern right to self-determination of people guaranteed by the United Nations Security are not binding for the comity of nations unless a referendum is held over the acceptability of this agreement by the people whose fate such an agreement affects.” Neither, India nor Pakistan have got this agreement since it was signed on midnight of 2-3 July 1971 endorsed by the UNSC.  Had the Shimla Agreement changed the status of the Kashmir Dispute, the UN Security Council would not have involved itself if it was a bilateral issue.  It's resolutions including the latest one No. 1172 of June 6, 1998, signed 27 years after the bilateral agreement was signed stand as testimony. The United Military Observers Group that had come into being as result of the UNSC resolution continue to be present on both the sides of the LOC.  Even the Shimla Agreement has not changed the status of the Dispute.  The pact  in Para 4 (ii)  reads: “In Jammu and Kashmir the line of control resulting from the CFL of December 17, 1971, shall be respected by both the sides without prejudice to the recognized position of either side.” ‘The recognized position is that the Kashmir question has to be resolved according to the relevant resolutions of the Security Council.’ The para six of the agreement unequivocally recognizes the Jammu and Kashmir as a Dispute that calls for a “final settlement.”  And ‘further the establishment of peace remained contingent on the resolution of the question.’ It also bound the respective heads to meet for ‘arranging modalities and arrangements’ for ‘final settlement’ of the state. The modalities and arrangement could be anything from holding a plebiscite and appointment of an un-designated plebiscite administrator. 
The agreement cannot be read in bits and pieces, the very first clause of the agreement states that “the charter of the United Nations shall govern the relations between the two countries.” Under the charter, a state has right to bring to the notice of the General Assembly of the Security Council that threatens the maintenance of international peace and security. Equally, under Chapter and Article 34, the Security Council can investigate any dispute or any situation which might lead to international friction. The acquisition of nuclear weapons by the two countries, the Kashmir Intifada, surgical strike, uninterrupted ceasefire violations, the war of attrition over non-state actors and a grave human rights violation have elevated the Kashmir Dispute/ Problem/Issue to an alarming level as a threat to the international peace. That makes imperative for the UNSC to take notice of in discharge of its mandate. 

Nexa Peaks Auto, Gandhi Nagar, Jammu