While Pakistan approaches the ICJ, it should keep in view India’s defence line. India would invoke jus cogen ‘clausula rebus sic stantibus’, things as they stand, or fundamental change of circumstances. The principle stands codified in Article 62 of the Vienna Convention on the Law of Treaties. India could plead the UNO resolutions stand antiquated under afore quoted principle as Pakistan failed to pull out all its forces as stipulated by UNO. It could also plead ‘lex posterior derogat priori’, later treaty abrogates the earlier one. The principle is enshrined in Article 59 of the Vienna Convention on the Law of Treaties.
We better not discuss the legality of Article 370 revocation. It has been challenged by Kashmiri appellants who accept jurisdiction of India’s Supreme Court, and by corollary IHK’s assembly’s accession-to-India resolution. India’s Supreme Court alluded to Article 370 as permanent, but it never clarified what ‘permanent’ actually means. None of the Supreme Court’s decisions explicitly equated such permanence to the Article being a basic feature. Also, unlike the IHK’s High Court, the Supreme Court never mentioned any bar on the amending power of the Parliament in these decisions (SC case: Sampath Prakash and Santhosh Gupta, the IHK’s High Court’s case: Ashok Kumar’s case).
Let us be cool. Keeping in view the moral credibility of our likely pleader Ben Emerson, and Reqo Diq lesson. Fools rush in where angels dare not tread’.
Khalid Masood
Rawalpindi
