Earlier this month, in a complete reversal of its position, the Ministry of External Affairs (MEA) announced that the government would seek the permission of the Supreme Court of India to approach the International Court of Justice (ICJ) against Pakistan in relation to the brutal torture of Captain Saurabh Kalia by the Pakistani armed forces during the Kargil conflict.
To understand the significance and consequences of this reversal, it is important to first understand the scope of ICJ’s jurisdiction, which is based on the consent of the participating states. This consent can be expressed in various forms. The principal distinction among them is whether the state consents to submit to ICJ’s jurisdiction an already existing dispute (voluntary jurisdiction) or certain categories of potential disputes (compulsory jurisdiction).
In the former category, a state can express its consent on an ad hoc basis, by means of a special agreement known as a compromise, or by voluntarily accepting a recommendation to this effect made by the Security Council. In the latter category, a state can express its consent for ICJ to adjudicate all or certain categories of legal disputes, either by acceding to a treaty, which, by its terms, provides for recourse to the ICJ, or by means of a unilateral declaration accepting the compulsory jurisdiction of the ICJ. Such declarations, which can be done and revoked at any time, recognise the ICJ’s jurisdiction as ipso facto compulsory. However, states are at liberty to make such unilateral declarations upon such terms and conditions as they determine themselves.
Such a decision is fundamentally a political one. In other words, it is essentially a function of the executive. It was in the exercise of such executive powers that on September 18, 1974, the then Minister of External Affairs, Swaran Singh, on India’s behalf made a declaration which recognises the Court’s jurisdiction as ipso facto compulsory. This blanket acceptance was followed by a long list of reservations, which excluded several categories of disputes from the scope of India’s consent. One such category is “disputes with regard to the government of any state which is or has been a member of the Commonwealth of Nations”. Another category is “disputes relating to or connected with facts or situations of hostilities, armed conflicts….” Pakistan, too, as permanent representative at the United Nations, made a unilateral declaration accepting the Court’s jurisdiction, albeit with a much shorter list of reservations.
In the past, when Pakistan had approached the ICJ accusing India of shooting down its naval aircraft ‘Atlantique’ in Pakistan’s airspace, India had successfully objected to the Court’s jurisdiction on the basis of its reservations to its unilateral declaration — the so-called ‘Commonwealth reservation’.
Not surprisingly, therefore, in its affidavit filed before the Supreme Court on September 26, 2013, in a case filed by the family of the deceased captain, the Indian government had correctly taken the stand that India cannot invoke the compulsory jurisdiction of the International Court against Pakistan in relation to disputes concerning armed conflicts and hostilities, as they are both members of the Commonwealth of Nations.
A unilateral declaration or a reservation made by a state can be revoked by the state at any time. Nothing stops the Indian government from reviewing and revising its earlier position with respect to the reservations. However, revoking such a reservation is itself a function of the executive. The Supreme Court has no role to play in determining whether the executive is, in fact, entitled to make such a revocation. One suspects that if the Supreme Court is approached, it would only ask the government to take its own decision. The rather curious announcement by the MEA, therefore, appears to be an attempt to abdicate its own responsibility, while playing to the gallery.
Any review by the executive must be done with great caution. It may allow Pakistan an opportunity to rake up past disputes before the International Court and potentially internationalise sensitive issues like Kashmir.
(Jay Manoj Sanklecha is a graduate of the West Bengal National University of Juridical Sciences, Kolkata, and is working with a law firm in Mumbai.)
