Kashmir and ICC (JR 206)
1. ICC: ICC The
Kashmiri Diaspora or just like Ghana and Argentina and all together
56 countries have gone to ICC on the Rohingya issue.
Either option would work
2. Kurile
Dispute and its relevance to Kashmir: The Second World War
left behind many problems inherited from history, not least in Asia in respect
of multiple disputed territories. One of them concerns four islands in the
Kurile chain that are claimed by Japan but occupied by Russia as successor state
of the Soviet Union. Despite the passage of over 70 years, this dispute has
defied solution and prevented the conclusion of a Russo-Japanese peace treaty
to draw a final curtain over the detritus of the war. The Kuriles are an
archipelago of some 56 islands spanning about 1,800 km from Japan’s Hokkaido to
Russia’s Kamchatka. All of them are under Russian jurisdiction but Japan claims
the two large southernmost islands, Etorofu and Kunashiri, and two others,
Shikotan and Habomai, as its ‘northern territories’. These islands were
occupied by the Soviet Union in August 1945, after which the entire Japanese
population, numbering less than 20,000, was evicted. The islands are now
populated by the various ethnic groups of the former Soviet Union, but only
eight of them are actually inhabited. Mr. Abe’s wish to engage with Russia
stems from the rapid rise of China, which spends three times more on defence
than Japan, and the perceived threat from North Korea, which recently fired two
ballistic missiles over Japan as a taunt to the U.S. Russia is now seen in
Japan as the lesser enemy, and improving relations with Moscow might drive a
wedge in the growing quasi-alliance between Russia and China, a break-up
desired by the U.S.-led Western alliance. Tokyo notes that the Russian far east
is endowed with plentiful natural resources which are in need of investments,
but is hampered by a small population, whereas China has 100 million citizens
along that shared land border. Japan has no territorial or demographic ambitions
in Russia other than the Kuriles, and has the capacity to transform the vast
contiguous areas of Russia. Therefore, it is hardly surprising that both Japan
and Russia see merit in pursuing greater collaboration At Vladivostok last September, Mr. Abe declared
that Japan-Russia relations held “unlimited potential” and that the absence of
a peace treaty was “an abnormal state of affairs”. Mr. Putin agreed, noting
that the Russian and Japanese militaries had cooperated for the first time, and
urged the immediate conclusion of a peace treaty without preconditions. Japan
demurred on the grounds that the Kurile islands dispute had to be settled first
before the issue was foreclosed. Nonetheless, Mr. Abe stated that “Japan-Russia
relations are advancing at a degree never seen before.” The interactions
between Japan and Russia probably hold scant interest for the Indian public. Nevertheless, although no two
international problems are analogous, there are important lessons to be drawn
from the manner in which traditionally hostile neighbours can identify common
interests and explore unorthodox avenues along which to proceed in search of
innovative solutions to apparently insoluble disputes. This requires strong
leadership and a bold imagination. Neither India nor Pakistan lacks either
attribute. Kashmir is essentially a territorial dispute of almost equal vintage
as the Kuriles. But if both sides keep waiting for the most propitious time to
make the first move, it will never come about.
3.
ICJ on
right of self determination (Chagos): Mar, 4, 2019: The
International Court of Justice has given a near-unanimous
opinion that the separation in 1965 of the Chagos archipelago from the then
British colony of Mauritius was contrary to the right of self determination,
and that accordingly the de-colonization of Mauritius by the United Kingdom had
not been in accordance with international law. The ICJ held that Britain’s
continued administration of the archipelago was an internationally wrongful
act, which should cease as soon as possible. The Chagos Archipelago consists of
a number of islands and atolls in the Indian Ocean. The largest island is Diego
Garcia, which accounts for more than half of the archipelago’s total land area.
Mauritius is located about 2,200 km south-west of the Chagos archipelago.
Between 1814 and 1965, the Chagos archipelago was administered by the United
Kingdom as a dependency of the colony of Mauritius. In 1964, there were
discussions between America and Britain regarding the use by the United States
of certain British-owned islands in the Indian Ocean, in particular in
establishing an American base on Diego Garcia. It was agreed that the United
Kingdom would be responsible for acquiring land, resettling the population and
providing compensation at its expense; and that Britain would assess the
feasibility of the transfer of the administration of Diego Garcia and the other
islands of the Chagos Archipelago from Mauritius. The ICJ reviewed the various UK and ECHR
cases brought by Chagossians seeking the right to return to the archipelago,
and noted that:: To date, the Chagossians remain dispersed in several
countries, including the United Kingdom, Mauritius and Seychelles. By virtue of
United Kingdom law and judicial decisions of that country, they are not allowed
to return to the Chagos Archipelago. The first substantive issue was to
what extent was there a customary right in international law to
self-determination in 1965-8. The ICJ noted the obligation (under Chapter XI of
the UN Charter) for UN Member States administering territories with peoples
without full self-government to develop the self-government of those peoples.
The ICJ held that it followed that: the legal régime of non-self-governing
territories, as set out in Chapter XI of the Charter, was based on the
progressive development of their institutions so as to lead the populations concerned
to exercise their right to self-determination. The adoption of UN
resolution 1514 (XV) of 14 December 1960, which affirmed that “[a]ll peoples
have the right to self-determination” represented “a defining moment in the
consolidation of State practice on decolonization “the General Assembly has a
long and consistent record in seeking to bring colonialism to an end” rather
than being about a resolution of a territorial dispute between two states. This
evaded the inevitable consequence of its finding that decolonization process
concerned was illegal, meaning that either the UK has no sovereignty over the
archipelago, or it does have sovereignty but is obliged to hand over
sovereignty to Mauritius. General Assembly resolution 1514 (XV) clarifies the content
and scope of the right to self-determination. The Court notes that the
decolonization process accelerated in 1960, with 18 countries, including 17 in
Africa, gaining independence. During the 1960s, the peoples of an additional 28
non-self-governing-territories exercised their right to self-determination and
achieved independence. There was a “clear relationship between resolution 1514
(XV) and the process of decolonization following its adoption.” Accordingly,
resolution 1514 (XV) indicated that self determination was a customary norm in
international law.The ICJ went on to hold that both State practice and opinio
juris at the relevant time confirm the customary law character of
the right to territorial integrity of a non-self-governing territory as a corollary
of the right to self-determination. It therefore followed that any
detachment by the administering Power of part of a non-self-governing
territory, unless based on the freely expressed and genuine will of the people
of the territory concerned, is contrary to the right to self-determination.The
second issue was whether the detachment of the Chagos archipelago had been done
in accordance with international law. The ICJ held that at the time of its
detachment from Mauritius in 1965, the Chagos Archipelago was clearly an
integral part of that non-self-governing territory. The ICJ considered the
background to the agreement of the Mauritius Council of Ministers in 1965 to
that detachment and held that it is not possible to talk of an international
agreement, when one of the parties to it, Mauritius, which is said to have
ceded the territory to the United Kingdom, was under the authority of the
latter. So heightened scrutiny should be given to the issue of consent in a
situation where a part of a non-self-governing territory is separated to create
a new colony. The Court considered that this detachment was not based on the
free and genuine expression of the will of the people concerned.Hence, the
United Kingdom was obliged under international law as at 1965 to respect the
territorial integrity of its colonies, and accordingly, as a result of the
Chagos Archipelago’s unlawful detachment and its incorporation into a new
colony, known as the BIOT, the process of decolonization of Mauritius was not
lawfully completed when Mauritius acceded to independence in 1968. With
respect to the third substantive issue, the ICJ in short order held that The
Court having found that the decolonization of Mauritius was not conducted in a
manner consistent with the right of peoples to self-determination, it follows
that the United Kingdom’s continued administration of the Chagos Archipelago
constitutes a wrongful act entailing the international responsibility of that
State… Accordingly, the United Kingdom is under an obligation to bring an end
to its administration of the Chagos Archipelago as rapidly as possible, thereby
enabling Mauritius to complete the decolonization of its territory in a manner
consistent with the right of peoples to self-determination. This has implications for Indian
Occupied Kashmir .Wonder if Pakistan will take up this issue
