120 Whither Kashmir? (Part II) - Islamabad Policy Research Institute

76 IPRI Factfile
called upon the parties to accept, in case of failure of demilitarization of
the State of Jammu and Kashmir, arbitration by arbitrators appointed by
the President of the World Court in consultation with the parties.
Pakistan accepted the proposal while India rejected it. Subsequently
during the Security Council debate on Kashmir in 1962, Pakistan's
Foreign Minister, Sir Zafrulla Khan showed readiness to refer the dispute
to any forum including the International Court of Justice in order to
determine the obligations of parties and other matters blocking the
progress. India refused to respond positively to the invitation on the
pretext that it was a political matter.
How do we explain the Indian and Pakistani reluctance to submit
the Kashmir dispute to the World Court or to an arbitration tribunal?
The Indian Prime Minister Pundit Nehru explained the Indian position
by stating that the matter was of political nature and hence was not
justiciable. Pakistan has not clearly spelled out its doctrinal position in
the matter but presumably it is no different from that of India. But what
does the statement of the Indian Prime Minister signify and how far is it
tenable?
Generally disputes are classified into two categories, namely, legal
and political or justiciable and non-justiciable. Political or non-justiciable
disputes are those which are not susceptible of settlement by the
application of generally recognized rules of international law for reason
of material insufficiency and inadequate development of the law of
nations. The real test of the distinction between legal and political
disputes is not the limitation of judicial function based on the
applicability of legal rules but rather the relative importance of the
subject matter of controversy. Those disputes are thus political and
therefore non-justiciable which affect the important or vital interests of
Stats [States]. In 1922 many members of the Institut de Droit
International described as political all disputes affecting the independence,
honour and the vital interests of nations.
On the basis of the foregoing, Governments have often insisted that
obligatory judicial settlement of disputes must be restricted to minor
issues. The idea of unimportant matters falling in the category of legal
disputes was the dominant theme of the two Hague Peace Conferences.
However, it is by virtue of their conduct rather than general legal
formulas that States have adopted the view that obligatory judicial
settlement must be limited to matters of minor importance.