The legal status of Kashmir’s Instrument of Accession

Comment

By Waqar Ahmed

India had started using pellet guns on unarmed people in 2010 but the step gained notoriety after the killing of Burhan Wani in 2016 when thousands of protesters were injured due to the use of pellet guns, hundreds blinded and killed. Once again, on 28 August 2020, Indian forces in Srinagar opened fire with pellet guns on a peaceful religious procession, injuring more than 40 people. As it is, Indian Prime Minister Modi has transformed India into a rogue and irresponsible state. His government has trampled fundamental norms and rules of international laws to advance the Hindutva ideology and occupied Kashmir Valley illegally.

The Kashmiri alienation with India is so complete that no Kashmiri political activist or politician in the IHK can support Indian abrogation of Article 370 or Indian occupation of Jammu and Kashmir, where the illegal Instrument of Accession was executed by the Maharaja after the entry of first Indian troops in J&K. Alastair Lamb, a British diplomatic historian, has conclusively documented that it was logistically impossible for the Maharaja to execute IoA on October 26, 1947 whereas Indian troops entered J&K on October 27, 1947. The so-called IoA was obtained under duress and bad faith, and thus lacks any validity.

In the presence of an outstanding standstill agreement between Pakistan and Hari Singh, the IoA with India could not be legally executed in favour of India as affirmed by the legal advisers of the Foreign and Commonwealth Office and US State Department. Professor Christopher Snedden in his book “The untold story of the people of Azad Kashmir” documented that large parts of J&K had declared independence from Hari Singh’s oppressive rule, so Singh had no legal capacity under the international law to sign the IoA as he had lost effective control of the state of J&K.

Maharaja’s accession was never unconditional; the IoA was provisionally accepted by the Lord Louis Mountbatten, Governor General of India, who was the sole authority mandated under the law to accept the IoA, until the wishes of the people of J&K were ascertained. Several speeches and statements of Indian PM Jawaharlal Nehru reject the final accession of J&K to India through the IoA by solemnly pledging plebiscite to Kashmiris under the sponsorship of the UN.

The UNSC resolutions on Kashmir categorically denounce the permanent accession of J&K via IoA and conditioned it with future political status of J&K on the outcome of free, fair and impartial plebiscite.

India knocked the doors of UNSC on the Kashmir issue after the execution of the IoA, which reflects its own recognition of the conditional nature of IoA. India has itself nullified IoA by its illegal actions of August 05, 2019; the Article 370 represented the domestic constitutional implementation of the terms of IoA.

The persistence of legal and human rights issue in Indian occupied Jammu and Kashmir is more than seven decades old; however, it is the western values towards the human rights and legal issues that continue to erode systematically in the Western society. Most of the world has closed its eyes and ears over the mayhem being carried out in the Indian occupied Kashmir.