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

78 IPRI Factfile
Article 21 of the General Act relating to arbitration similarly refers
to "any dispute", though article 17 dealing with judicial settlement
narrows down its scope to disputes mentioned in article 36 of the
Permanent Court of International Justice. Similarly, the Rio anti-War
Treaty through article 1 provides that "[t]he settlement of disputes and
controversies shall be effected only through the pacific means established
by international law". A number of other treaties could be cited in which
the traditional distinction between "legal" and "political" disputes has
been set aside. However, a jarring note is made by the Charter of the
United Nations which, through article 36, maintains the traditional
distinction and the Statute of the World Court which restricts its
jurisdiction to "legal disputes". But this is understandable because if these
two instruments did not adopt traditionalist attitude in the matter, States
in the international community would turn their back on the Court.
Despite the distinction between legal and political disputes
maintained in the UN Charter and the Statute of the World Court, there
is considerable jurisprudential evidence to suggest that, the Court has not
in practice upheld this distinction. The first case in which the Court
enunciated its position in the matter Kashmir Dispute was the advisory
opinion concerning Certain Expenses of the United Nations. Paying lip
service to the above - mentioned distinction, the Court accepted that it
could “... give an advisory opinion only on a legal question. If a question
is not a legal one, the Court has no discretion in the matter; it must
decline to give the opinion requested". Despite this pronouncement, the
Court rejected the argument that it should refuse to give an opinion as
the question asked by the General Assembly was intertwined with
political considerations on the ground that “... most interpretations of the
Charter of the United Nations will have political significance, great or
small. In the nature of things it could not be otherwise. The Court,
however, cannot attribute a political character to a request which invites
it to undertake an essentially judicial task, namely, the interpretation of a
treaty provision".
Next, in the United States Diplomatic and Consular Staff in Tehran
case, the Court again ignored this distinction when it upheld its own
jurisdiction, although there was parallel action by the Security Council in
the matter under consideration. Again in the case concerning Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), the Court, while dealing with the US objection to its
jurisdiction based on the above distinction, took the same line as in the