The scrapping of article 370 and subsequent annexation and illegal occupation of the state of Jammu and Kashmir by India has once again brought the seven-decades-old Kashmir issue, a prime cause of friction between two nuclear states India and Pakistan, into international limelight. The prism of international law invalidates many Indian claims.
Before this constitutional catastrophe, the state had a special status and separate laws, a constitution, and a flag. This special status has been revoked in utter contravention of UNSC resolutions and international law.
This mala fide move by the Modi government is indubitably aimed at eclipsing the importance of the issue of Kashmir by localizing it and thereby putting it on the backburner.
However, the irrefutable fact is that the Kashmir is a disputed territory between India and Pakistan, and recognized as such, without any reservation, by the international community.
Analysing Indian occupation through international law
Amid Indo-Pak partition, under Article 2 (4) of the independence act of India, the princely states were given choice to join “either of the new Dominions”. While it was an easy decision for some princely states due to their geographical proximity, territorial contiguity or political and religious affiliation of the rulers and subjects, the accession of the State of Jammu and Kashmir emerged as a chronic conundrum and a nuclear flashpoint between India and Pakistan.
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To add, in the beginning, the ruler of the state, Maharaja Hari Singh, toyed with the idea of remaining independent. However, Indian machinations spearheaded by Congress leaders including Nehru and Patel created such circumstances for maharaja that left him with no option but to capitulate to their demand of accession of the state of Jammu and Kashmir to India.
Hence, Hari Singh, due to unwarranted conditions, forged by the Indian Machiavellian masterminds, had to agree to sign the instrument of accession with India. Thus, on October 27, 1947, the governor-general of India approved the accession with the condition that “as soon as law and order were restored in Kashmir…the question of [the] state’s accession should be settled by a reference to the people [of Jammu and Kashmir].”
The purported instrument of accession (which India has failed to produce) denies the authority of any unilateral action by India. The terms of this instrument would not be varied by any amendment of the Indian Independence Act, 1947 without acceptance of the ruler of the state (clause 5).
Further, nothing in the instrument could have been deemed to be a commitment as to acceptance of any future constitution of India and nothing could affect the sovereignty of the Maharaja over the state (clause 7 and 8).
So far as the internationalization of the issue of Kashmir is concerned, it is India that took the issue to international forum by knocking at the door of UN security council back in January 1, 1948.
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Resultantly the Council, via UNSCR 38, called upon the contending governments to refrain from aggravating the circumstances and report any material changes on the ground. Thereafter, the Security Council over a number of years issued a total of 17 resolutions on the status of the dispute of Kashmir.
UNSCR 47 of 1948, the most important of roughly all resolutions on Kashmir, calls for the resolution of the dispute of Kashmir’s accession to either India or Pakistan through effecting the democratic means of a free and impartial plebiscite.
Simla agreement is another worth-quoting document, deemed as the premier bilateral accord between the warring nations.
It holds that principles and purposes of the Charter of the United Nations shall govern the relations between the countries, hence shining light on the validity of the UNSC resolutions on Kashmir.
The disputed nature of the issue is further reiterated as, “In Jammu and Kashmir, the Line of Control resulting from the cease-fire of December 17, 1971 shall be respected by both sides without prejudice to the recognized position of either side”.
Moreover, the same Simla Agreement also forbids unilateral action to change the status of the state. Clause 1(ii) of the agreement specifically states that neither side shall unilaterally alter the situation.
Clause 6 further emphasizes that both the countries should discuss modalities for a final settlement of the state through diplomatic means. Thus, India’s claim that the revocation of Occupied Kashmir’s ‘special status’ is its internal issue negates its commitment under the agreement.
Right to self-determination inalienable under international law
Additionally, the right of self-determination is the basic principle of the United Nations charter which has been reaffirmed in the universal declaration of human rights and applied countless times to the settlement of international issues. The concept played a significant role in post-world war I settlement, leading for example to a plebiscite in a number of disputed areas.
However, in 1945 the establishment of the UN gave a new dimension to the principle of self-determination. It was made one of the objectives which the UN would seek to achieve, along with equal rights of all nations.
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The principle of self-determination and the maintenance of international peace and security are inseparable. For example, the denial of this right to self-determination to the people of Kashmir has brought the two neighboring countries in South Asia — India and Pakistan to the brink of nuclear catastrophe.
Apart from the specific UN resolutions which guarantee Kashmiris’ the right to self-determination, the UN Charter in Article 1(2) declared one of its purposes as “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. This serves as the biggest impetus to the said right under international law.
In 1952, the General Assembly further expounded this principle and stated in Resolution 637A(VII), that ‘the right of peoples and nations to self-determination is a prerequisite to the full enjoyment of all fundamental human rights’ and recommended that UN members ‘shall uphold the principle of self-determination of all peoples and nations’.
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The Declaration on the Granting of Independence to Colonial Countries and Peoples enshrined in GA resolution 1514 of 1960 upheld the right to self-determination. The resolution explicitly says, “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.
What’s more to say is that the principle of self-determination was given overwhelming protection in Article 1 of both International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR).
In 1966, these two covenants enshrined the self-determination principle verbatim as was laid in GA resolution 1514. The Declaration of Principles of International Law Concerning Friendly Relations (GA Resolution 2625 of 1970) went further in recognizing that peoples resisting forcible suppression of their claim to self-determination are entitled to seek and receive support in accordance with the purposes and principles of the Charter.
Since the adoption of the Declaration in 1970, the ICJ has, on a number of occasions, confirmed that the principle of self-determination constitutes a binding norm of customary international law and even a rule of jus cogens- the peremptory rule of international law. Thus, international law and the specific UNSC resolutions on Kashmir uphold and provide the Kashmiris with the overriding principle of the right to self-determination.
India an occupying force in Kashmir after revocation of article 370
Inter alia, by revoking the state’s ‘special status’, the situation has now become an ‘occupation’ with an ‘unlawful annexation’. India is an occupying power and it has unlawfully annexed the state. India and its presence in Kashmir contradicts the norms of international law.
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From international legal opinion on the issue of self-determination, as developed in the aftermath of the Second World War and the process of decolonization, the fate of millions of people cannot be left to the whims of India.
Given the UN General Assembly’s resolution of 1960 concerning Declaration on the Granting of Independence to Colonial Countries and Peoples, the people of Jammu and Kashmir have every right to self-determination.
India has no title on the state under international law. India’s illegal occupation since 1947, denial of the right to self-determination of the people and application of India’s constitution by removing the state’s special status makes India an occupying power and its army a hostile force. The BJP’s recent attempt to include the territory of the state within the Union’s territory of India is an act of ‘occupation’ and ‘illegal annexation.
While commenting on Article 47 of the Geneva Convention IV, jurist Jean S Pictet explains that the occupying power is the administrator of the territory and is under various positive obligations towards the occupied population (ie the occupying power cannot annex the occupied territory or change its political status).
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Jean elaborates that the occupying power must respect and maintain the political and other institutions of the occupied territory. Therefore, India being an occupying power cannot annex the state’s territory and is bound to keep the state’s institutions and territorial boundaries intact till the conduct of plebiscite under the UNSC resolution 1948.
The International Commission of Jurists has categorically stated that “the Indian government’s revocation of the autonomy and special status of Jammu and Kashmir violates the rights of representation and participation guaranteed to the people [of Jammu and Kashmir] under… international law”.
To cap it all, the Modi government should pay heed to the words of the British statesmen Edmund Burke, spoken at the time of struggle for independence by Britain’s colonies in America, “The use of force alone is but temporary. It may subdue for a moment; but it does not remove the necessity of subduing again; and a nation is not governed, which is perpetually to be conquered”.
The author is a legal practitioner-cum-columnist based in Quetta Balochistan. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.