Hassan Aslam Shad |
Kashmir has been the cynosure of world attention since 1947 and a source of bitter rivalry between the two arch-foes, India and Pakistan. With BJP at the helm of affairs in India after a resounding electoral victory earlier this year, Kashmir finds itself at the precipice of a dangerous lawfare, one which is likely to thrust Kashmir once again in the international limelight. This time, more than ever before, for all the wrong reasons.
This lawfare emanates from BJP’s poll promise to undo the special status of Kashmir and integrate it within India to bring it on par with the rest of India. Simply put, the objective is to rewrite India’s social contract with Kashmir and its people. Reportedly in 2015, We the Citizens, an RSS based think tank, challenged Articles 370 and 35A of the Indian Constitution (more on these Articles below) claiming that they violate the Constitution. BJP tried, but couldn’t fulfill this promise during its first term. Under Modi 2.0, this lawfare can be seen gaining momentum.
Article 370 was a historical mistake. It needed to go. There would never be an ideal time to undo this Nehruvian blunder. @narendramodi told voters he would abrogate Art 370 if he got a chance. India voted for him, he’s done what he promised. Let’s hope peace prevails in the end.
— Rahul Kanwal (@rahulkanwal) August 5, 2019
Reportedly, new petitions have been filed before the Supreme Court of India challenging Kashmir’s special status and the matter came for hearing on 10 July this year but is yet to be listed for a detailed hearing. The current wave of nationalism in India has swept away in its wake calls for restraint from tinkering with the Kashmir issue.
Given that BJP is all geared to change Kashmir’s status, this lawfare couldn’t have come at a worse time for Kashmir, its people, or India for that matter. Continuing down this road, India will be sure to shoot itself in the foot and, in the process, pave the way for Kashmir to become the focus of world attention. This will inevitably reignite Kashmiris’ right of self-determination, something unavoidable if BJP goes down this road.
Before getting into the legal tools that India is looking at deploying and the constitutional wizardry one can expect to be conjured within India’s legal and policy circles, let us first have a look at India’s rather tenuous constitutional relationship with the princely State of Jammu and Kashmir (J&K).
The carve-outs in the Instrument of Accession
This relationship transpired through the Instrument of Accession signed on 26 October 1947 by the ruler, Maharaja Hari Singh, whereby, proclaiming to be acting on behalf of J&K, he acceded it to the Union of India. The Instrument of Accession was accepted by the Governor-General of India, Lord Mountbatten, subject to the proviso that as J&K was the subject matter of dispute between India and Pakistan, the question of accession should be decided in accordance with the wishes of the people of the State.
Reports in the India media claim that on 10 July, the Supreme Court agreed to an early public interest litigation hearing challenging the constitutional validity of Article 370
The Instrument of Accession was a tenuous thread that tied J&K to India. It limited the power of the Indian Parliament to make laws for J&K with respect to three matters: defense, external affairs and communications. Among other things, the Instrument states that signing it shall not be “deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my [the ruler’s] discretion to enter into arrangement with the Governments of India under any such future Constitution”. The Instrument also prohibited the Indian Parliament from making “any law for this State [J&K] authorizing the compulsory acquisition of land for any purpose…”
Article 370 Gateway
India’s relationship with J&K and grant of autonomous status to J&K formalized through Article 370 of the Indian Constitution titled “Temporary provisions with respect to the State of Jammu and Kashmir”. Over time, Article 370 has been the gateway through which other provisions of the Indian Constitution have been extended to J&K, albeit not without serious controversy.
The abrogation of Article 370 hasn’t just made accession null & void but also reduces India to an occupation force in Jammu and Kashmir. https://t.co/PS6JxYhSaI
— Mehbooba Mufti (@MehboobaMufti) August 5, 2019
In line with the Instrument of Accession, Article 370 limits the Centre’s legislative powers over J&K to three subjects, namely, defense, foreign affairs and communications. It exempts J&K from the full applicability of the Indian Constitution and allows it to have its own Constitution and Legislature. Most importantly, Article 370 requires that other than defense, external affairs and communications, the Indian Constitution can be extended to J&K only with the “concurrence” of the Government of the State. Not only this, but the “concurrence” by the Government of the State is provisional if it is given before the convening of “the Constituent Assembly [of J&K] for the purpose of framing the Constitution of the State [J&K]…”.
In other words, such “concurrence” would last, and be valid, until the convening of the J&K Constituent Assembly which is the sole constitutional body authorized to ratify extension of the Indian Constitution to J&K. Interestingly, this J&K Constituent Assembly dispersed on 17 November 1956 and ceased to exist after adopting the J&K Constitution. This left in its wake a legal blackhole that continues to this day.
Accession of Kashmir to India was conditional to Article 370 and Section 35a. Now that govt wants to do away with it, does it mean accession is now null and void?
— Aditya Menon (@AdityaMenon22) August 5, 2019
Extension of Article 370 to J&K
Subsequently, the Presidential Order of 1954 titled “The Constitution (Application to Jammu and Kashmir) Order, 1954” was passed which appears as Appendix I to the Indian Constitution. This Presidential Order was issued after both “concurrence” and “ratification” by the J&K Constituent Assembly in accordance with Article 370.
This Presidential Order added a proviso to Article 3 (Formation of new States and alteration of areas, boundaries or names of existing States) of the Constitution. The proviso reads:
“Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State”.
Second, this Presidential Order of 1954 inserted the famous Article 35-A in the Constitution titled “Saving of laws with respect to permanent residents and their rights”. Article 35-A mirrors the safeguard underscored in the Instrument of Accession to preserve J&K’s demographics. This landmark Article of the Constitution empowers the J&K Legislature to define the classes of persons who are, or shall be, permanent residents of J&K; confer on such permanent residents any special rights and privileges or impose upon other persons any restrictions with respect to the acquisition of immovable property in J&K and settlement in the State.
If indeed India manages to scrap Articles 370 and/or 35A through an act of Parliament, withdrawal of the President Order, or some other legal wizardry, India’s established jurisprudence will be turned on its head
With respect to the aforesaid, Article 35-A unequivocally provides that no existing law in force in J&K or that enacted by the J&K Legislature shall be void on the ground that “it is inconsistent with or takes away or abridges any rights conferred on other citizens of India by any provision of this Part”. This is important. In other words, this was positive discrimination in J&K’s favor which was constitutionally protected. It is this very positive discrimination (termed “special treatment” in India) that BJP wishes to undo by rewriting the script. But, in doing so, BJP will be challenging the very legal edifice on which India’s constitutional relationship with J&K rests.
The “Systematic Hollowing Out” of Article 370
Over the years, the extension of the Indian Constitution and powers of the Central Government to J&K has been carried out through various President Orders solely on the basis of “concurrence” but without “ratification” by the J&K Constituent Assembly. This patent constitutional illegality has been carried out in India by amending the Presidential Order of 1954 as opposed to promulgating new Presidential Orders. This is because the constitutional validity of new Presidential Orders would be in doubt since there is no Constituent Assembly to ratify those Presidential Orders.
This has been termed by eminent Indian jurists such as AG Noorani as the erosion of the special status of Kashmir in violation of Article 370 as it does not meet the dual modalities, namely, “concurrence” (by the Government of the State) and “ratification” (by the Constituent Assembly). AG Noorani has termed this the “systematic hollowing out” of Article 370 and the “graver inroads into Kashmir’s autonomy by violations of Article 370”.
Why the Special Treatment?
J&K’s accession to India was, in AG Noorani’s words, a “solemn compact” between India and J&K. India’s choices at the time of J&K’s accession were starkly limited: either accept J&K’s accession with unprecedented concessions or give it up to Pakistan – the logical gateway for accession considering its majority Muslim population.
Article 370 records a solemn compact between the Union and the State. Neither side can amend or abrogate it unilaterally, except in accordance with the terms of that unique provision: AG Noorani. #Article370 #Article370revoked #JammuAndKashmir
— Soutik Biswas (@soutikBBC) August 5, 2019
However, the “complete integration” of J&K in India, as desired, was not possible due to J&K’s history and demographics. Prior to Independence, J&K was allowed an internal autonomy and its people were hereditary subjects of the State as opposed to being British colonial subjects. Faced with these historic constraints, inveigling Kashmir within the constitutional framework of India through the Article 370 concessions was the only way out for India. It is very constitutional script that BJP now wishes to rewrite.
But it won’t be a walk in the park, constitutional jugglery notwithstanding. Why? Because India’s hands are tied by its own jurisprudence which has cemented the inviolability of J&K’s special status in the constitutional and political history of India.
Article 370 blackhole and workarounds being considered
Now what makes Article 370 India’s constitutional blackhole is the fact that although Article 370 gives the President of India the power to repeal, amend or modify Article 370, any such act requires ratification by the erstwhile J&K Constituent Assembly. Eminent legal jurists of India are of the view that since the Constituent Assembly ceased to exist, any Presidential order repealing Article 370 of the Indian Constitution would be null and void.
Nonetheless, other options are being considered to abrogate or repeal Articles 370 and 35-A. Each of these are, on their own, a legal and political minefield stepping on which India will face unprecedented constitutional and political crises.
One option under consideration is to abrogate Article 370 by recourse to the amending provisions of Article 368 (Amendment of the Constitution) which empowers the Indian Parliament to amend the Indian Constitution and provides the procedure for amendment. However, even here, there is an insurmountable legal stumbling block, namely proviso to Article 368 (2) with reference to J&K, which reads:
“Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of Article 370.” This inevitably leads back to the original constitutional conundrum: Article 370 (3) of the Indian Constitution requires that any Presidential Order abrogating Article 370 must have the “concurrence” (of the State Legislature) and ratification (by the Constituent Assembly).
Reports in the India media claim that on 10 July, the Supreme Court agreed to an early public interest litigation hearing challenging the constitutional validity of Article 370. The litigants have sought that the Supreme Court should declare that Article 370 (3) “lapsed with the dissolution of the Jammu & Kashmir Constituent Assembly…”. The petition notes: “Eternal perpetuation of a provision through a sleight when the said provision was ex facie intended to be temporary is a massive fraud on the Constitution of India,…”.
Not clear whether Modi's decision is legal. The Supreme Court ruled in 2018 that Article 370 was a permanent provision of the constitution.
— Vindu Goel (@vindugoel) August 5, 2019
If indeed India manages to scrap Articles 370 and/or 35A through an act of Parliament, withdrawal of the President Order, or some other legal wizardry, India’s established jurisprudence will be turned on its head. A landmark Supreme Court case in this regard is State Bank of India v Santosh Gupta (2016) which, in the words of the Supreme Court was “…all about the State of Jammu & Kashmir via-a-vis the Union of India, in so far as legislative relations between the two are concerned”.
With regards to the alleged “temporary” nature of Article 370 (which is one of the reasons being currently mulled behind the repeal of Article 370), the Supreme Court confirmed the permanent status of Article 370 and held that its repeal or abrogation is impossible despite its title: Temporary provisions with respect to the State of Jammu and Kashmir.
The Supreme Court also held that: “it is important to note that Article 370(2) does not in any manner state that the said Article shall cease on the completion of the work of the Constituent Assembly or its dissolution” and that: “….[Article 370] is in fact in current usage and will continue to be in force until the specified event in sub-clause 3 of the said Article [ratification by the Constituent Assembly] takes place”. Needless to say, this “specified event” can never happen.
India’s narrative on J&K has been to view (and make the world view) J&K through the bilateral prism of the Simla Agreement without recognizing the inherent flaws in such reasoning
Earlier, in Kesavananda Bharati v State of Kerala (1973), the very Indian Supreme Court, before whom petitions are pending seeking an abrogation of Articles 370 and 35A, laid down the law that although the power to amend the Constitution under Article 368 is a “very wide power”, it does not “include the power to destroy or emasculate the basic elements or the fundamental features of the Constitution”. The Supreme Court, in this case, retained the power to strike down amendments to the Constitution that alter the basic structure of the Constitution.
AG Noorani has convincingly argued that repealing Articles 370 and 35A would be forthrightly unlawful and unconstitutional. In his words: “Article 370 of India’s Constitution records a compact between the centre and Kashmir, so does Article 35-A; Articles 370 and 35-A form an inseparable whole [emphasis added]… Article 35-A is not a mere executive order under Article 370 but is itself a constitutional provision, a compact recorded in both constitutions [India and J&K’s]. No court can ignore this.”
SUPREME COURT Judgment in case of SBI v Gupta holding:
1. President CANNOT abolish 370 WITHOUT recommendation of State Assembly
2. Even IF State Assembly stands dissolved (like now) does not mean 370 stands repealed
But Guess era of law & Constitution is over #Article370Revoked pic.twitter.com/RfBbPigEC6
— 𝐼𝓂𝓇𝒶𝓃 𝐿𝒶𝓁𝒾𝓀𝒶 (@Lalika79) August 5, 2019
Going by AG Noorani’s logic and the law laid down by the Supreme Court in Kesavananda Bharati case, any action to repeal, abrogate or modify Articles 370 or 35A would be a defacement of the Indian Constitution, hence unconstitutional. Given that the Kesavadanda Bharati case was decided by a 7-6 majority more than 4 decades ago, it remains to be seen whether the Indian Supreme Court will side with the constitution or, instead, get caught in the crosshairs of the whipped up ultra-nationalistic frenzy.
India’s fossilized narrative: the “Simla Agreement”
India’ prism for viewing J&K continues to be the bilateral framework underscored in the Simla Agreement of July 1972. The crux of India’s argument is that this bilateral agreement supersedes previous UN Resolutions on Kashmir. Amongst other things, the Simla Agreement records the following agreement between India and Pakistan:
1: That the two countries resolve to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them.
2: Pending the final settlement of any of the problems between the two countries, both agree not to unilaterally alter the situation and agree to prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations.
3: The pre-requisite for reconciliation, good neighborliness and durable peace is a commitment by both the countries to peaceful co-existence, respect for each other’s territorial integrity and sovereignty and non-interference in each other’s internal affairs, on the basis of equality and mutual benefit.
4: In order to initiate the process of the establishment of durable peace, both agree that their respective forces would be withdrawn to their side of the international border. Both further agree that in J&K, the line of control resulting from the cease-fire of December 17, 1971 would be respected by both sides without prejudice to the recognized position of either side. Importantly, it was agreed that neither side would seek to alter it unilaterally, irrespective of mutual differences and legal interpretations. Both sides further undertook to refrain from the threat or the use of force in violation of this Line.
5: The principles and purposes of the Charter of the United Nations shall govern the relations between the two countries.
6: In accordance with the UN Charter, the parties will refrain from the threat or use of force against the territorial integrity or political independence of each other.
The Simla Agreement, without a doubt, manifested the agreement of both countries to resolve the J&K dispute through bilateral means. However, the Simla Agreement, neither in its preamble nor in the body, refers to the intent of the parties that it would “supersede” UN Resolutions on J&K or that it would have the effect of altering either party’s recognized position on J&K (note the choice of words “without prejudice to the recognized position of either side”).
Revoking Article 370 will also rip up the Simla Agreement (which India has pegged the Kashmir talks to for decades):
'Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation.' https://t.co/l8H5oKl9tx
— Asad Rahim Khan (@AsadRahim) August 5, 2019
India’s narrative on J&K has been to view (and make the world view) J&K through the bilateral prism of the Simla Agreement without recognizing the inherent flaws in such reasoning. India has failed to appreciate a cardinal principle of international law: the Kashmir dispute seeded in multilateral topography through UNSC Resolutions. Once it mushroomed in such environ, it assumed a “multilateral character”. Despite wanting to, India cannot whittle down the nature of the dispute or its character by invoking bilateral agreements such as the Simla Agreement.
J&K’s unavoidable multilateral prism
Moreover, it was India that first took the J&K dispute to the UN in January 1948 by submitting a complaint against Pakistan to the UN Security Council (UNSC) under Article 35 of the UN Charter. This has been called Jawaharlal Nehru’s grave mistake by several Indian policymakers, who are aware of the irreversibility of retracting the steps after a dispute has been submitted to the UN. Several important UN Resolutions over the years have cemented the international nature of the J&K dispute.
Noteworthy UNSC resolutions with reference to J&K include the following:
1: UNSC Resolution No. 38 adopted on January 17, 1948 which called on both Pakistan and India to take all measures within their power to improve the situation in J&K.
2: UNSC Resolution No. 39 adopted on 20 January 1948 which established a United National Commission to investigate, mediate and report on the situation in J&K.
3: UNSC Resolution No. 47 adopted on 21 April 1948 which noted “with satisfaction that both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite…”. This resolution also recommended certain measures to be taken by both countries to create proper conditions for the plebiscite.
4: UNSC Resolution No. 51 adopted on 3 June 1948 pursuant to which the Commission was instructed to “proceed without delay to the areas of the dispute with a view to accomplishing the duties assigned to it…”. (Note: On 13 August 1948, the Commission proposed a ceasefire and a proposed truce agreement as well as proposed that both countries should “reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will the people” and “agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured”. The Commission published detailed proposals for the operation of the Plebiscite Administration in January 2019 however, “the Indian Government was reluctant to give up control over the interim administration of Jammu and Kashmir, which it believed it was entitled to exercise by virtue of the Maharaja’s accession” (International Commission of Jurists, Human Rights in Kashmir, 1995).
5: UNSC Resolution No. 91 adopted on 30 March 1951 which, amongst other things, observed that India and Pakistan have “reaffirmed their desire that the future of the State of Jammu and Kashmir shall be decided through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations”; reminded “the Governments and the authorities concerned of the principle embodied in its resolutions… ,that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations; affirmed that the convening of a constituent assembly [the J&K Constituent Assembly]… and any action that assembly might attempt to take to determine the future shape and affiliation of the entire State or any part thereof would not constitute a disposition of the State in accordance with the above principle”; and declared the “belief that it is the duty of the Security Council in carrying out its primary responsibility for the maintenance of international peace and security to aid the parties to reach an amicable solution of the Kashmir dispute and that a prompt settlement of this dispute is of vital importance to the maintenance of international peace and security”.
6: UNSC Resolution No. 122 adopted on 24 January 1957 which reminded both India and Pakistan about the principle embodied in previous UNSC Resolutions including Resolutions No’s 47 and 91 that “the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations”. This Resolution once again reaffirmed that any actions taken or which the constituent assembly “might attempt to take to determine the future shape and affiliation of the entire State or any part thereof, or action by the parties concerned in support of any such action by the assembly, would not constitute a disposition of the State in accordance with the above principle”. The UNSC also observed that it “decides to continue its consideration of the dispute”.
Prime Minister said that India’s announcement regarding the status of the Indian Occupied Jammu & Kashmir was in clear violation of the United Nations Security Council (UNSC) resolutions.#StandWithKashmir
— Govt of Pakistan (@pid_gov) August 5, 2019
Since the inception of the dispute, Pakistan has consistently maintained that J&K is an international dispute that cannot be whittled down through a bilateral agreement. Whilst not negating that the Simla Agreement represents an unequivocal undertaking to bilaterally resolve the dispute, Pakistan’s principle argument remains that the overarching and overriding multilateral nature of UNSC Resolutions in respect of J&K have cemented its status as an international dispute. In other words, bilateralism cannot erode multilateralism. This position, Pakistan further argues, is also confirmed by the plain text of the Simla Agreement which is without prejudice to
(i) the existing position of the parties; and
(ii) the parties remaining bound by the UN Charter. Given that the UN Charter is applicable to J&K, Pakistan has rightly invoked Article 103 of the UN Charter which in unequivocal terms states that: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” Unless the UN Charter is amended anytime soon (which I don’t see happening in my lifetime), India’s argument that bilateralism trumps multilateralism is an impossible sell in this multipolar world.
India’s lawfare on Kashmir is showing no signs of reneging. Pakistan has no choice but to take BJP’s intentions at face value. Given that nowadays BJP has made the people of India ride a wave of ultra-nationalism and reimagine an alternative fictional parallel universe in which some legal magic will bring J&K in India’s lap. This wishful thinking, now state policy, has been forcing India to take a myopic view of Pakistan’s claims on J&K as being unfounded and unworthy of consideration.
India can be expected to continue with this line of reasoning as it has been doing for the past many decades by creating a false equivalence between J&K and allegations of state-sponsored terrorism by Pakistan. Repeatedly and consistently harping on this point is the name of the game. However, what India will need to realize very soon is that it cannot argue this point endlessly especially in the absence of adducing concrete and direct evidence before the world about Pakistan’s support or sponsorship of terrorism. On the contrary, the world is beginning to see the fault lines in the Indian narrative.
Pakistan’s counter lawfare options
Expectedly, Pakistan’s strategy and policy circles will be watching from the sidelines and preparing for both eventualities: India’s abrogation of Articles 370 and/or 35A, or India maintaining the J&K status quo.
If BJP decides to drink from the poisoned chalice of policy imperatives that manifest in a repeal of Articles 370 and 35A, Pakistan’s job on J&K will be made easy. If cutting the proverbial feet to fit the shoe is the preferred Indian State policy, it must brace for unprecedented crises unlike anything seen in its history. Besides unleashing the gates of hell, India can say goodbye to its global image, something painstakingly crafted over the years.
Widen the lens of multilateralism!
Even assuming that better sense prevails in India and repeal of Articles 370 and 35A remains mere rhetoric, India’s case on J&K just got weakened. This happened very recently through India’s own foray down the winding and treacherous road of international law by apparently cajoling Pakistan to battle out the Kulbhushan Jadhav case at the International Court of Justice (ICJ). The findings of the ICJ, in this case, have important lessons for India with reference to J&K. Reality has a strange way of rearing its ugly head.
While gaining consular access to Kulbhushan Jadhav and seeking annulment of his conviction by the Pakistan Military Court, India inevitably got its hands sullied in the murky debate of bilateralism v multilateralism. India’s core contention that the Vienna Convention on Consular Relations (1963) trumps the 2008 Bilateral Treaty was accepted by the ICJ. Concomitantly, Pakistan’s argument that the 2008 Bilateral Treaty, which was invoked by Pakistan as grounds for denying consular access to India, was not accepted by the ICJ.
Despite having suffered a loss on the consular access front, Pakistan wouldn’t mind using the logic at global fora to reposition J&K as a multilateral issue to be resolved in line with UN Resolutions to negate India’s bilateral fallback position under the Simla Agreement. Interestingly, in the Jadhav case, India argued that “bilateral treaties cannot modify the rights and corresponding obligations which are set out in Article 36 of the Convention [Vienna Convention]”, and that “there is nothing in the language of the 2008 Agreement which would suggest that India or Pakistan ever intended to derogate from Article 36 of the Vienna Convention”. Notably, there isn’t anything under the Simla Agreement either that signifies the intention to derogate from their UNSC Resolutions (even assuming that they can be derogated from as a matter of law, which cannot be the case)!
In other words, this is where the rubber hits the road for Pakistan. This can be Pakistan’s counter lawfare, which although not as dramatic as India’s, can take a cue from international jurisprudence decided in the Jadhav case to re-thrust Pakistan’s multilateralism argument at the global level. The ICJ, as the World Court, holds global clout and its judgments hold more than persuasive value as they crystallize law on a given matter, notwithstanding whether or not a country decides to abide by it. As the multilateralism v bilateralism debate has been refreshed at the global stage in the Jadhav case, Pakistan should take a restock of recent international jurisprudence and use it to further polish up its core argument and, in the process, further “internationalize” the Kashmir dispute.
Do away with the historic baggage
Over the years, chinks have appeared in India’s bilateral narrative due to its consistent and repeated material breaches of the Simla Agreement. These include unilateral statements declaring J&K as an “integral part” of India and the latest war on its own constitution to “integrate” Kashmir. Amongst other things, the Simla Agreement prohibits either side from unilaterally altering the situation until the final settlement of the problems between the two countries.
Article 60 of the Vienna Convention on the Law of Treaties, 1969 (VCLT) provides that the “material breach of a bilateral treaty by either party entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part”. Article 60, VCLT, defines “material breach” as “a repudiation of a treaty not sanctioned by the present Convention [VCLT]” or “the violation of a provision essential to the accomplishment of the object or purpose of the treaty”. Neither India nor Pakistan are parties to the VCLT.
Material breach (Article 60 of VCLT) allows to suspend the operation of the treaty but requires frustration of the purpose of the agreement, interpreted in the light of the object and context of the entire treaty rather than its isolated provisions & cannot be done prematurily.
— Yarik Kryvoi (@kryvoi) March 15, 2019
However, as confirmed by the ICJ in the Case concerning the Gabcikovo-Nagimaros Project (1997) Hungary/Slovakia, some of the rules laid down in the VCLT might be considered as a codification of existing customary law and this applies to provisions of the VCLT concerning termination of bilateral treaties. In other words, the Article 60 termination provisions under the VCLT are applicable to the Simla Agreement, regardless of the fact that India and Pakistan are not a party to the VCLT.
It is time for Pakistan’s policymakers to debate the possibility of terminating the Simla Agreement. Terminating the agreement will enable Pakistan to get rid of the historic baggage that has served no purpose other than offer India the façade of feigned refuge behind legal provisions which it conveniently pulls up as reason for refusing to talk with Pakistan. Respectable dissent on this issue notwithstanding, those who cavil at the thought of closing a door on possible engagement with India on J&K must not forget that the Simla Agreement constitutes a stumbling block in the way of Pakistan effectively roping in the UN multilateral framework.
Historically, India has conveniently invoked the Simla Agreement to take the world in a pedantic spiral of misdirection. This pulls Pakistan back. It is time Pakistan extricates itself out of the Simla Agreement. A bad agreement is worse than having no agreement at all.
It is hoped that Pakistan’s policy circles will realize that adding a new lens to the Kashmir prism will make the world see newer (and hidden) nuances on Kashmir
Over the years, India has also consistently maintained the position that third-party mediation or intervention to resolve the dispute is unacceptable. Again, this third party mediation or intervention (whatever name is given to it) is hostage to the bilateral narrative that prevents reigning in world powers to force India to engage with Pakistan. Pakistan should strive to make President Donald Trump’s recent offer to Prime Minister Imran Khan to mediate on J&K as the new multilateral prism through which the world should be made to view it as the unresolved agenda of partition and one of the biggest threats to international peace and security.
The self-determination debate
No exegesis on J&K is complete without a discussion of the right of self-determination which is recognized in international law as a principle of “jus cogens” i.e. a fundamental principle of international law from which no derogation is possible. Pakistan should continue to offer all political and moral support to Kashmiris besides remaining mindful of the fact that notwithstanding Pakistan or India’s claims over J&K (or part thereof), the people of J&K have a stand-alone and inherent right of self-determination which accrues separate and distinct from any State claims in respect of J&K. As confirmed by the International Commission of Jurists in their 1995 report on J&K, the right of self-determination accrued to the people at the time of partition and it continues to this day.
Moreover, as a matter of international law, no patent illegality (occupation, suppression, colonialism etc.) can extinguish the right of self-determination through lapse of time or otherwise. If, as planned, India takes steps to change the demographics of J&K, this will give rise to grave breaches of international humanitarian law and international human rights law treaties such as the International Covenant on Civil and Political Rights (ratified by India in 1976) and the International Convention on the Elimination of All Forms of Racial Discrimination (ratified by India in 1968). India will also fall foul of international criminal law including the Rome Statute of the International Criminal Court (Rome Statute). Crimes under Article 7 (Crimes Against Humanity) of the Rome Statute include any forceable transfers of the population if committed as part of a widespread or systematic attack against any civilian population.
India’s latest lawfare on Kashmir is inward looking and based on reimagining a relationship with Kashmir and its people. It is hoped that sanity will prevail and India will abstain from stepping on a legal and political minefield which will entail grave and serious repercussions for India and the region as a whole.
Fortunately, Pakistan is increasingly finding itself on the right side of the Kashmir discourse as its policy is more outward looking in the sense that it is multilateralist in approach and not hostage to political jingoism or legal surrealism as is the case with India’s policy. It is hoped that Pakistan’s policy circles will realize that adding a new lens to the Kashmir prism will make the world see newer (and hidden) nuances on Kashmir and rid itself of the entrenched narrative on Kashmir which has, in the past, been used to weaken Pakistan’s position. In the face of India’s lawfare on Kashmir, Pakistan’s best bet is to snowball multilateral inertia by weaponizing international law to its advantage and making the world force India to return to the negotiating table.
Hassan Aslam Shad is the head of corporate and international practice of a leading law firm of Oman. He is a graduate of Harvard Law School, USA with a focus in international law. Over the years, Hassan has written extensively on topics of law including public and private international law and international relations. Hassan’s LLM Thesis at Harvard Law School was a detailed study of the parallels between Sharia and the Rome Statute of the International Criminal Court. Hassan has the distinctive honor of being the first person from Pakistan to intern at the Office of the President of the International Criminal Court, The Hague. He can be reached at: email@example.com. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.