Daily Times

Despite the Indian government’s recent actions, it is undeniable that, under international law, Kashmir is not acknowledged as part of India’s union territory. It remains a territory in dispute, with its future still to be decided in line with United Nations resolutions.

Kashmir is governed by an established principle of international law that prohibits any nation from claiming sovereignty over occupied territory. This principle was originally outlined in the Paris Agreement of 1928 and reaffirmed in Article 2, Section 4 of the United Nations Charter. The International Committee of the Red Cross also reiterated this principle in its declaration on August 4, 2004.

The text emphasizes that occupation does not grant ownership of the occupied territory to the occupying power. Numerous resolutions from the United Nations General Assembly and the Security Council support this position. Additionally, the UNCCP affirmed this principle at a conference in Switzerland, further strengthening the established legal discourse.

During an occupation, a state retains its status as an international legal entity. It maintains its identity and does not merge with the occupying power. As a result, the occupation is viewed as illegitimate throughout its duration and does not change the legal status of the occupied state

Based on this principle, the Security Council declared Iraq’s occupation of Kuwait illegitimate in Resolution 674. Similarly, the UN General Assembly refused to recognize the occupation of Azerbaijani territory based on this same principle. In Resolution No. 3061, the General Assembly also declared the Portuguese occupation of Guinea-Bissau illegitimate. If India has forcibly declared occupied Kashmir as part of the Indian Union in violation of UN resolutions, this does not mean that occupied Kashmir has become an integral part of India, nor does it imply that its citizens must pledge loyalty to India. International law clearly states that the fate of the Kashmiri people should be determined by themselves through a UN-supervised plebiscite. India cannot unilaterally and forcibly incorporate occupied Kashmir into India in violation of international law.

During an occupation, a state retains its status as an international legal entity.

The General Assembly Resolution 3314 affirms the right of Kashmiris to resist occupation. Resolution No 37/43, passed on December 3, 1982, explicitly supports the right to self-determination and legitimizes armed struggle against occupation.

Article 45 of Hague Convention negates the possibility of demanding allegiance to the occupying power from the inhabitants of the occupied territories. The question now is: what steps can Pakistan take? Here’s a proposed roadmap:

1. Pakistan can bring the matter to the General Assembly under Article 96 of the UN Charter and seek an advisory opinion from the International Court of Justice. This would address whether India’s unilateral change of Kashmir’s status is justified under International Law. Are such actions justifiable in light of UN Charter and Security Council resolutions? Could they be deemed war crimes? The answers to these questions shall reinforce Pakistan’s case in the international legal arena.

The answers to these questions are clear. This will further strengthen the case against India in the realm of international law. We have seen in the past that similar ‘advisory opinions’ have been issued by the International Court of Justice regarding Israel’s aggression. Although such opinions are not enforceable, they hold significant meaning and importance that cannot be overlooked.

2. It is crucial to note that Kashmir is not merely a bilateral issue; it remains firmly on the agenda of the United Nations. Following the Shimla Agreement, India has attempted to recast it as a bilateral matter. However, in light of India’s recent actions on August 6, Pakistan has every right to reassess its position and might consider withdrawing from the Shimla Agreement, given India’s violations of it.

3. To reinforce our stance, Pakistan should expand Article 257 of its Constitution. we should nurture it to amplify the inherent international significance of the Kashmir case.

4. Furthermore, Azad Kashmir’s Supreme Court can serve as a vital platform to advocate for this issue. The people of Kashmir need a clear ruling regarding their legal status, reinforcing that their fate should be determined through a consensus aligned with United Nations resolutions. This ruling should encapsulate the essence of the Kashmir issue, ensuring our voices resonate globally and our case is understood worldwide.

The writer is a lawyer and author based in Islamabad. He tweets @m_asifmahmood.