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September 7, 2019

Annexations and the ICJ

Opinion

September 7, 2019

For over half a century, much of modern international law has been based on this cardinal rule: states must not acquire territory through the use of force. With the crisis in Kashmir following on the heels of annexations in Europe and the Middle East, we should examine: are we doing enough to deter populist strongmen from acquiring what territory they want?

Although the rule against annexation and conquest of territory is clear, states seeking to vindicate their rights against invasions and annexations contend with inadequate settlement mechanisms. Mired in questions of jurisdiction and admissibility, states may find it hard to adequately hold annexing states to account.

Take for instance Russia’s annexation of Crimea. In 2014, Russia enacted a law purporting to incorporate Crimea, an area in Ukraine, into the Russian Federation. Russia’s annexation of Crimea came after a local Crimean referendum indicated a preference for Russia over Ukraine. International observers and rights bodies questioned the results of that referendum.

The Council of Europe called the referendum illegal, noting that it was held in the presence of “soldiers under conditions of intimidation of civic activists and journalists, blacking out of Ukrainian television channels and obstruction of civilian traffic in and out of Crimea.” The UN General Assembly and most states refused to recognize Russia’s annexation. The US, European Union and other countries imposed sanctions on Russia as a consequence.

Ukraine had to carefully consider its jurisdictional strategy when taking Russia to the ICJ. Put simply, for contentious disputes, the ICJ generally has jurisdiction where states: (i) accept compulsory jurisdiction in relation to other states that also accept it; (ii) accept jurisdiction by special agreement; (iii) accept jurisdiction after one state’s unilateral application; and (iv) jurisdiction arises for matters specially provided for in the Charter of the UN or in treaties or conventions in force.

Many states do not accept the compulsory jurisdiction of the ICJ. Some states accept its jurisdiction with reservations. Ukraine and Russia do not accept its compulsory jurisdiction. So as part of its pleadings strategy, Ukraine had to rely on relevant treaties giving rise to jurisdiction. It brought proceedings based on the Convention for the Suppression of the Financing of all forms of Terrorism and International Convention on the Elimination of All Forms Racial Discrimination (CERD). Its case is underway, but Ukraine must make a case under those treaties, not one based on annexation, and that may not necessarily directly give Ukraine the result it seeks: a clear ruling on the annexation of Crimea.

Georgia faced similar jurisdictional issues when challenging Russia’s invasion of Georgia’s boundaries. It had to rely on the CERD. Georgia sought to apply the treaty’s compromissory clause to establish the ICJ’s jurisdiction following Russia’s invasion. What it wanted was an international decision reinforcing its rights against invading Russian forces. But in its pleadings, it had to make specific reference to racial discrimination matters and indirectly approach the issue of territorial violation.

Considering Kashmir, Pakistan’s foreign minister recently announced Pakistan’s decision to take India to the ICJ. Jurisdictional issues are likely to feature in Pakistan’s pleadings strategy. Pakistan and India accept the ICJ’s compulsory jurisdiction with reservations. Given India's reservations, when Pakistan takes the Kashmir issue to the ICJ, jurisdictional issues will first turn on whether India accepts jurisdiction. India is unlikely to do so because it insists that Kashmir is an internal matter. So Pakistan may have to consider treaty-based jurisdiction, rely on a relevant human rights treaty that affords ICJ jurisdiction and jump through other admissibility hoops .

But as terrible as India’s documented human rights violations and recent communications blockade are, India has not merely violated human rights: Pakistan argues that India has annexed Kashmir. And that needs to be the main subject of legal proceedings – but might not be because of jurisdictional issues.

Beyond the realm of binding decisions on the merits of a dispute, the ICJ can issue advisory opinions. Such opinions are issued at the request of the UN Security Council (eg Namibia opinion), UN General Assembly (eg Wall Advisory Opinion) or other UN organs. Considering annexation, the ICJ issued an advisory opinion on Israel’s Wall in response to a question from the UN General Assembly. In its Wall Advisory Opinion, the ICJ noted that Israel’s Wall and associated exercise of authority amounted to ‘de facto annexation.’ But its opinion was not binding on Israel and Israel’s Wall still stands. For Kashmir, it’s unclear whether an advisory opinion will be in the offing or enough.

While modern international law affords us the language to question territorial transgressions of populist regimes, it should also afford states greater opportunity to fully vindicate their rights. Modi and his RSS crew, well-known admirers of Hitler sympathizing Golwalkar, must be kept from their worst excesses. The international community must work on bolstering mechanisms for challenging annexations lest we find ourselves dealing with another Hitler invading Poland.

The writer teaches law at IBA Karachi and is a graduate of the Cambridge,

Columbia and Georgetown universities.

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