Legal perspective on Kashmir dispute

  Courtesy :-  Malik Muhammad Ashraf


The landing of Indian troops in Srinagar on 27th October, 1947, on the basis of an instrument of accession, the Indians claim was signed by the ruler of Kashmir (which does not form part of the official record concerning partition or has never been shown to the world), does not have a legal basis. The legal experts are of the opinion that in consonance with article 7 of the Indian Independence Act all agreements and treaties with the princely states or their rulers stood terminated on 15th of August 1947. Therefore Maharaja of Kashmir ceased to be the legal ruler of the state and hence was not in a position to sign the instrument of accession. Granted that the Maharaja did sign the accession and he was legally competent to enter into an agreement with the Indian dominion, it is pertinent to note that the accession itself was provisional as is manifest by the letter that Lord Mountbatten wrote to Maharaja in October 1947 accepting the accession provisionally and making it clear that the state would only be incorporated into the Indian Union after a reference had been made to the people of Kashmir. It thus clearly acknowledged ascertaining the will of the people, which was never done.According to the Indian Independence Act, the rulers of princely states were given the choice to freely accede to either India or Pakistan, or to remain independent.
They were, however, advised to accede to the contiguous dominion, taking into consideration the geographical and ethnic issues. It is also a recorded history that Lord Mounbatten in his address to the special full meeting of the Chamber of Princes in New Delhi on 25th July 1947 told the princes of the Princely states that they were free to join any one of the dominions, India or Pakistan, however, while acceding to any dominion they could take into account geographical contiguity and wishes of the people. It is thus quite evident that in the so-called instrument of accession as well as the partition plan, two elements were of paramount importance i.e. the will of the people and geographical contiguity. In case of Kashmir both these elements were negated. The revolt of Kahmiris against their ruler’s pretensions to join India and the resultant war between India and Pakistan is also a strong testimony to the fact that the people of Kashmir wanted to join Pakistan. Kashmir was contiguous to Pakistan and majority of its population was also Muslim. It had cultural and historic links with Pakistan and had remained under Muslim rule for centuries before Ranjit Singh annexed it. Encyclopedia Britannica also highlighted this reality in these words “Although there was a clear Muslim majority in Kashmir before the 1947 partition and its economic, cultural, and geographic contiguity with the Muslim-majority area of the Punjab (in Pakistan) could be convincingly demonstrated, the political developments during and after the partition resulted in a division of the region. Pakistan was left with territory that, although basically Muslim in character, was thinly populated, relatively inaccessible, and economically underdeveloped. The largest Muslim group, situated in the Vale of Kashmir and estimated to number more than half the population of the entire region, lay in Indian-administered territory, with its former outlets via the Jhelum valley route blocked.”In regards to the UN resolution on Kashmir it is relevant to point out that in the wake of the war that broke out between the two countries after the landing of Indian forces in Kashmir, it was India who took the matter to the United Nations, which facilitated an immediate ceasefire. The UN during the course of its deliberations on the subject passed twenty three resolutions, including two UNICEF resolutions of August 13, 1948 and 5th January 1949 calling for a plebiscite in Kashmir under the auspices of United Nations. It is quite evident that like the supposed instrument of accession and the partition plan, the UN resolutions also vividly recognized the right of the people to decide their own future through a process of self-determination. It is also pertinent to mention that the UN through its resolutions 91 and 122 also repudiated Indian stance that the issue of accession of Kashmir had been resolved by the constituent assembly of Kashmir. These resolutions reiterated that the question of accession could not be resolved by any means other than enunciated in the UN resolutions on the subject. This proves beyond any doubt that the Indian claims of Kashmir being an integral part of India represents travesty of the facts and lack any legal basis. In the wake of 1971 war between India and Pakistan, Simla Agreement was signed and clause 6 of the agreement emphasized the resolution of all disputes between the two countries including Kashmirthrough peaceful means, bilaterally. The very fact that India acknowledged Kashmir as a disputed territoryin Simla Agreement, negated its claims of Kashmir being its integral part. But unfortunately the Indianshave never shown honesty of purpose in resolving this issue and have used varying tactics to suspend or scupper the process of dialogue. It has always remained evasive on the core issue of Kashmir. The Indiansalso claim that in view of the Simla Agreement, Pakistan cannot internationalize the Kashmir dispute. That stance is also devoid of any legality.The bilateral agreement does not change the status of the dispute. It also does not preclude the possibility of raising it again at the UN in case the bilateral agreement fails to deliver. Article 103 of UN Charter says “In the event of a conflict between the obligations of the members of the UN under the present charter and their obligations under any other international agreement, their obligations under the present charter will prevail”. What it means is that the UN resolutions on Kashmirwill take precedence over all other international agreements on the same issue. So Pakistan is very much within its right to invoke UN resolutions, after having been frustrated to find solution through the bilateral arrangement. The UN resolutions on Kashmir adopted under Chapter VII of the UN Charter remain legally binding on the parties. Article 25 also reiterates their obligatory nature. The Security Council under the UNCharter has the powers to enforce its decisions and resolutions militarily or by any other means necessary; the powers that it has used during the Korean war in 1950 and in Iraq and Kuwait in 1991. It is abundantly clear from the foregoing that the legal status and obligations of the parties to the dispute under UN resolutions and that of the Security Council to have its resolutions implemented, remain unaffected.