Kashmir and ICC (JR 206)

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