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

80 IPRI Factfile
the adjudicative process, we would suggest that they make a request to
the World Court not for an actual settlement of the dispute but for
indicating the guidelines on the basis of which they would then engage in
bilateral negotiations to solve the dispute in the spirit of the Simla
Accord. There is a precedent in the North Sea Continental Shelf case
where the parties in dispute asked the Court to decide the applicable
principles and rules of international law rather than actually delimit the
boundaries of the continental shelf in dispute. On the basis of these
guidelines they then proceeded to resolve their dispute.
One may ask here as to how to overcome the hurdles created by
the Indian Declaration accepting the compulsory jurisdiction of the
World Court. There are at least four such hurdles which prohibit the
submission of disputes to the Hague Court which are as follows:
a) disputes in regard to which the parties to the dispute have
agreed or shall agree to have recourse to some other method
or methods of settlement (obliquely referring to the so-called
bilateralism of the Simla Agreement);
b) disputes with a State which is or has been a member of the
British Commonwealth;
c) disputes relating to or connected with, among other things,
fulfilment of obligations imposed by international bodies: and
d) disputes concerning or relating to, among other things, the
status of its territory or the modification or delimitation of its
frontiers or any other matter concerning boundaries (oblique
reference to the State of Jammu and Kashmir). It is true that
India has built a series of hurdles to protect herself against any
country trying to drag her before the World Court.
However, despite these hurdles, India can, if she so desires, set
aside these hurdles by making a declaration accepting the
Court's jurisdiction for the special purpose of seeking
guidelines for the resolution of the Kashmir dispute.
As far as Pakistan's Declaration is concerned, it seems to pose much
less problems. It takes out only two categories of disputes from the ambit
of the Court which are as follows:
a) disputes the solution of which the parties shall entrust to
other tribunals by virtue of agreements;
b) disputes relating to questions which by international law fall
exclusively within the domestic jurisdiction of Pakistan. It is