X Welcome to International Affairs Forum

International Affairs Forum a platform to encourage a more complete understanding of the world's opinions on international relations and economics. It presents a cross-section of all-partisan mainstream content, from left to right and across the world.

By reading International Affairs Forum, not only explore pieces you agree with but pieces you don't agree with. Read the other side, challenge yourself, analyze, and share pieces with others. Most importantly, analyze the issues and discuss them civilly with others.

And, yes, send us your essay or editorial! Students are encouraged to participate.

Please enter and join the many International Affairs Forum participants who seek a better path toward addressing world issues.
Tue. November 13, 2018
Get Published   |   About Us   |   Support Us   | Login
International Affairs Forum
Social Media
Does Kashmir legally belong to India?
Comments (2)

Abhishek Singh (Indian Ambassador to the UN) in the General Assembly went on record to say, “In fact, India's reservations about the proposed China-Pakistan Economic Corridor stem from the fact that it passes through Indian territory illegally occupied by Pakistan for many years.” [1]The brutal conflict which has seen mass murders has been going on for 66 years now and doesn't seem to end in the near future. Through the course of this paper, using Chronological Analysis as the method, I will try to establish that Kashmir has always legally belonged to India.

First, I argue that in 1947, the transfer of Kashmir to India was legally completed and the territory of Kashmir has been a part of India ever since. Following the decolonization of India, Muhammad Ali Jinnah, the leader of the Muslim League in India demanded for a separate country. In order to avoid an escalation of the ethnic conflict, most of the terms for this partition were accepted by Pt. Jawaharlal Nehru whilst leaving the fate of Kashmir upto the then ruler of Kashmir, Maharaja Hari Singh. On 26 October 1947, Maharaja Hari Singh being the administrative authority of Kashmir and hence the only legal person to have authority to transfer Kashmir as a territory, bought out the Instrument of Accession.

Article 1 of Instrument of Accession said,

“by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State of Jammu and Kashmir (hereinafter referred to as "this State") such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India, on the 15th day of August, 1947, (which Act as so in force is hereafter referred to as "the Act”).” [2]

Hence, under the principles of Vienna Convention of Law of Other Treaties, the secession of Kashmir to India was legally completed under International law. On the basis of this legal secession, India claims ownership of approximately one-third of the territory currently administered by Pakistan.[3] Muhammad Ali Jinnah, the then Governor General of Pakistan raised various questions with respect to validity of the instrument and said that this Instrument of Accession was signed under duress and hence was a violation of the Standstill Agreement which talks about the idea of contracts being invalid if signed under pressure.[4] Though this argument might hold some value if taken in isolation, but since the partition was being administered by Lord Mountbatten (the then Governor General of Burma) and he had the authority to make the final call, his acceptance of this Instrument of Accession legally established that Kashmir belonged to India.

Second, I argue that Pakistan failed in its obligations of State responsibility as it violated the territorial integrity of the Indian Kashmir by supporting Pakhtoon tribes and this illegal practice should become grounds for rejecting their claim on Kashmir.

On 28 October 1947[5], local tribesmen called Pakhtoon were seen creating chaos and a situation of tribal warfare was observed. This assistance given by Pakistan to the rebel forces and the Pakhtoon tribes was a hostile act and the involvement of the Pakistan army was an invasion against Indian territory.[6] The Pakistan Government claims that these tribesmen weren’t Pakistani Military Forces and hence any allegations don't hold any credibility. [7] It has been that these invaders were being looked after by various officials of Pakistani Government.[8]  Under the International Criminal Tribunal for Yugoslavia’s ‘The Prosecutor v Duško Tadic’ case[9], the principle of effective control test was established which codified the fact that if assistance to rebels in form of weaponry, food or shelter has been provided by any state, then the acts of those rebels can be attributed to the state. Hence the acts of these tribesmen could be attributed to the Government of Pakistan. The UN sponsored mediator, Owen Dixon, was also constrained to record in his report of 15.9.1950 that these incursions both by tribesmen and Pakistani units were a violation of international law.[10] Due to this resort to illegal force, Pakistan conducted  a violation of Article 2(4) of the United Nations Charter[11]. Hence Pakistan’s claim should be rejected on the grounds of illegal practice of acquiring territory.

Next, I argue that the inconsiderations of the government of Pakistan to both the UN Resolutions and the people of Kashmir should again be grounds of rejecting their claim.

After the United Nations set up the United Nations Commission for India and Pakistan on 20th January 1948, the Security Council passed Resolution 47 under which a plebiscite mandated by UNCIP was supposed to be in order. This plebiscite was supposed to determine the future of Kashmir.[12]The prerequisite to this plebiscite was that both India and Pakistan accompany with Parts (I) & (II) of the UNCIP resolutions of 13 August, 1948 which required for both of these countries to withdraw their troops from Kashmir[13]. The Government of Pakistan in their statement to the United Nations said that they weren't ready to withdraw their troops since they had an imminent threat from the Indian Military and hence this plebiscite could not take place. The two implications which we can draw from these statements are as follows. First, since this plebiscite was supposed to be carried by a neutral UN Mandated Body, their argument of imminent threat didn't hold any value. This only goes onto make the case stronger for the Indian Government as it leaves an impression that the Pakistani Government knew that the consequences of this plebiscite would be in favour of Indian Government and hence they didn't accept this condition. Second, it goes onto establish their inconsideration towards the people of Kashmir as every citizen has the fundamental Right to Self Determination which has been established in Article 1(2) of the United Nations Charter[14], and in the Wall Opinion of the International Court of Justice (2009), the right to self determination was established as an Ergo omnes (moral obligation) of Jus cogens (Supreme Non Interpretative Legal Obligation) character.[15] These two implications show Pakistan’s failure of state responsibility and hence their incompetence of having effective control in the area. Having proven the historic incompetency on behalf of the government of Pakistan, one still cannot deny that this idea of referendum is one of the primary reasons for the continuation of the conflict. On one hand the government of India historically claims the importance of a plebiscite. But on the other hand when the Government of Pakistan has been requesting a referendum for the last 15 years, the government of India has been rejecting it. The reason that the Government of India gives is that Pakistan has instilled its citizens in the area and hence any referendum which would take place now would be unfair to the original land and people who used to reside in the territory. Even if we give some weightage to Pakistan’s argument on this front, this argument can still cannot become an entire reason to transfer the land to them.

Next I argue, that using the principles of moving boundaries, the boundaries after the 1965 war should have rested with the Government of India.

Many neutral viewers such as Bill Mccullum[16] have established that Pakistan lost more territory than it gained during the war and India had an upper hand before the cease fire was established following the war. The 1965 war which was initiated by Pakistan had its main motive as acquisition of Kashmir from both parties to the conflict. In the aftermath of the war, since most of the territories rested with India, using the principle of Uti Possidetis  and territorial aggrandizement which codify the that territory and other property remains with its possessor at the end of a conflict, the acquired piece of land by India should have been officially declared as a piece of its sovereign territory. Pakistan again didn't agree to this change in status quo wherein they said that the “original borders” should be taken into account and our land should be given back to us because of an existence of a treaty.[17] Even though the Government of India accepted this idea of original borders and returned Pakistan their piece of land due to the grey area, the inherent problem with the argument given by the Government of Pakistan is that the war had started with the intention to acquire land and the consent for the same had been given by both the parties involved and using the Spanish colonial border dispute as a precedence wherein ‘intent’ was given the highest pedestal, the intention to acquire land ought to take precedence over any previous territory which Pakistan was trying to argue for.

Next I argue that Pakistan’s failure in respecting the various bilateral agreements are sufficient grounds to reject their claim over Kashmir.

Following the 65 war and 6 years of trying to regain stability in the region, another war yet again broke out in 1971. Through this discourse I do not wish to enter into the dynamics of the 1971 war but rather focus on the legal aftermath of the war. Following the war two major bilateral agreements were observed. The first major agreement was the Simla agreement. Under the Simla agreement the Line of Control was established in Kargil. Reuters recently reported “In 1999 Pakistan-backed irregular troops crossed into the Kargil sector in northern Kashmir and occupied bunkers along a vast swath of the LoC, prompting a massive Indian air and ground offensive to repel them and have kept on doing ever since”[18]. Since the line of control was established which demarcated the various territories, these incursions are a blatant violations of Article 2(4) of the United Nations Charter, 1970 Declarations of Principles of International Law and 2001 ILC Draft Articles on State Responsibility as territorial integrity and sovereignty of India was violated due to these incursions and hence again using principles of failure to meet obligation, Pakistan should not be entitled to any piece of land due to such blatant violations. [19]

Finally, I argue that using the principles of effective control, Indian administration is the best for the people of Kashmir. The International Law Commission in 1964 took out a report and defined the parameters for having effective control in areas. Paragraph 84 of this report established that a country may be entitled to a piece of land when they have shown intention to govern and continued peaceful administration over the area and have helped the civilians to progress in the piece of land. These same principles were reiterated in the Eritrea v Yemen Case.[20] Now when we apply these principles in Kashmir, we look at the progress which the two sides have faced over the last 60 years under the different administrations. In the Indian Administered Kashmir area the Indian, the Gross Domestic Product is $15.2 billion while in the Pakistan Occupied Kashmir the Gross Domestic Product is $3.2 billion. [21]Similarly, the Human Development Index in IAK is 0.586 while in POK is 0.532.These figures adequately establish that the Indian administered Kashmir has seen more progress over the last 60 years and hence India has had more effective control for the people of Kashmir. Shujaat Bukhari notes “Islamabad's interference in its internal matters through its all powerful Kashmir Council is a bone of contention in PoK politics.”[22] and this political interference ends up being a major obstacle in Kashmir’s progress from the Pakistani end. Hence using the principles of effective control, Kashmir should rest with India for the progress of Kashmiris.

“The heaven on earth” turned out to be the witness of one of the most brutal conflicts in the history of the world. Through the course of paper I have proved how under International Law, Kashmir rightfully belongs to India inspite of having some valid Pakistani claims. Even though I can’t predict when this brutal conflict would end, but all I can do is hope that the International Court of Justice gives a ruling to annex this heaven on earth to where it truly belongs.

Jibraan Mansoor is currently a sophomore at Ashoka University majoring in Political Science, Philosophy, Economics and minoring in International Relations. He has participated in various Model UN Conferences and won 18 Best Delegates in both international and national MUNs. Mr. Mansoor’s first paper was published in the Supreme Court based journal of India, Practical Lawyer. He was also the Head Boy of the student council in his high school and mentored teams for various debating and MUN based competitions. 


1 Statement by First Secretary, Permanent Mission of India to the United Nations exercising India’s Right of Reply during the General Debate of 70th session of UN General Assembly (September 30, 2015)

[2] http://www.centralexcisehyderabad4.gov.in/documents/history/1947_2.PDF

[3] http://news.bbc.co.uk/2/hi/south_asia/1762146.stm

[4] "Pakistan Ministry of Foreign Affairs". Mofa.gov.pk. Retrieved 2 February 2010.

[5] Snedden (2013, pp. 46–47)

[6] Schofield 2003, pp. 70-71.

[7] Schofield 2003, pp. 82-85.

[8] https://web.archive.org/web/20080616161619/http://meaindia.nic.in/jk/kashmirissue.htm

[9] http://www.icty.org/case/tadic/4

[10]https://web.archive.org/web/20080616161619/http://meaindia.nic.in/jk/kashmirissue.htm

[11] http://www.un.org/en/sc/repertoire/principles.shtml

[12] UN Security Council Resolution 47

[13] http://www.cmp-cpm.forces.gc.ca/dhh-dhp/od-bdo/di-ri-eng.asp?IntlOpId=263&CdnOpId=311

[14] http://www.un.org/en/sc/repertoire/principles.shtml

[15] http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=414ad9a719

[16] https://fas.org/news/pakistan/1994/940912.htm

[17] Peaceful Territorial Change, Arie Marcelo Kacowicz, p 68

[18] http://in.reuters.com/article/2013/10/02/india-pakistan-kashmir-keran-army-idINDEE99106I20131002

[19] Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries

2001 http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf

[20] IN THE MATTER OF AN ARBITRATION PURSUANT TO AN AGREEMENT TO ARBITRATE DATED 3 OCTOBER 1996, http://www.pca-cpa.org/EY%20Phase%20Iba87.PDF?fil_id=458

[21] Rejuvenating the economic environment in Jammu & Kashmir, Ambassador (Rtd) Arif Kamal, p 4

[22] The other Kashmir, Shujaat Bukhari, http://www.thehindu.com/opinion/op-ed/the-other-kashmir/article2101764.ece

Comments in Chronological order (2 total comments)

Report Abuse
Fri, May 05, 2017 10:17 PM (about 13359 hours ago)
Hi, I enjoyed reading this article a lot.


Before that let me introduce myself.

I'm parth, 13 and in my school, I have undertaken a project on
 
Fri, May 05, 2017 10:20 PM (about 13359 hours ago)
can you please share me some notes on this

parthanand3002@gmail.com
 
Contact Us | About Us | Support Us | Terms & Conditions Twitter Facebook Get Alerts Get Published

All Rights Reserved. Copyright 2002 - 2018