Kashmir and the law

September 15, 2019

The recent annexation and illegal occupation of the State of Jammu and Kashmir by India has highlighted, once again, the seven-decades-old Kashmir issue. Before this catastrophe, the state had...

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The recent annexation and illegal occupation of the State of Jammu and Kashmir by India has highlighted, once again, the seven-decades-old Kashmir issue. Before this catastrophe, the state had special status, separate laws, constitution, and flag. Now this special status has been removed in blatant violation of UNSC resolutions and international law.

Article 7 (2) of the Independence of India Act 1947 declared the lapse of suzerainty of “His Majesty’s Government” over the Indian states. Under Article 2 (4), the princely states were allowed to join “either of the new Dominions”. While it was a straightforward 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 became an issue.

In the beginning, the ruler of the state, Maharaja Hari Singh, flirted with the idea of remaining independent. However, Indian machinations spearheaded by Congress leaders including Nehru and Patel went into full drive to seek alleged accession from Hari Singh on October 26, 1947. 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).

Due to conflict between Pakistan and India over the accession of the state, the UN declared the territory under control of both the countries as the ceasefire line which was re-designated as the lLine of Control' following the Simla Agreement of 1972. The UNSC resolution of 1948 recognized the state as a disputed territory and reaffirmed that the permanent status of the state would be decided by a plebiscite. The UNSC resolutions of 1951 and 1957 further condemned Indian unilateral attempts to alter the ‘special status’ of the state.

The Simla Agreement 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 emphasized 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.

By the revocation of the state’s ‘special status’, the situation has become an ‘occupation’ with an ‘unlawful annexation’. India is an Occupying Power and it has unlawfully annexed the state. 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.

Under Article 42 of the Hague Regulations 1907, a territory is considered occupied when it is placed under the authority of the hostile army.

The International Court of Justice (ICJ) in an advisory opinion (2004) regarding the legal consequences of the construction of a Wall in the Occupied Palestinian Territory confirms again that a territory under the authority of the hostile army is considered occupied.

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; 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). Jean elaborates that the Occupying Power must respect and maintain the political and other institutions of the Occupied Territory. In the occupation of Iraq, for example, the UNSC reiterated Jean’s view and confirmed the obligation of the Occupying Power to leave the Occupied Territory’s position intact [resolution 1483 (2003)]. 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 “[t]he 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”. Considering the sheer violation of international law and rising tensions between Pakistan and India, the international community must act to save two nuclear-armed neighbours from the havoc of war and show its resolve to enforce international law in Occupied Kashmir and in India as well.

The writer is a lawyer.

Email: zranjahlawgmail.com

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