The Kashmir dispute has many religious and political connotations that cannot be ignored. However, at the international stage, Pakistan must make a legal case for Kashmir, which means that it must finally move away from its support for a jihadist solution to pushing for a solution based on principles of international law. This should ideally begin with the State of Pakistan challenging the validity of the Instrument of Accession signed by Maharaja Hari Singh.
Pakistan must argue, before the international community, that the entire basis for India’s revocation of Articles 370 and 35A of its Constitution is illegal under international law. In this regard, it has a strong legal case particularly taking into consideration Article 52 of the Vienna Convention on the Law of Treaties (VCLT) 1969, which stipulates: “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations”.
Under the Government of India Act 1935, the British had made provision for states to enter into a federal relationship either with Pakistan or India. There was no option available for a state if it concluded it wanted independence. In October 1947, Pakistan sent troops disguised as local tribesmen into Kashmir resulting in Maharaja Hari Singh’s appeal to Nehru to deploy the Indian Armed Forces into his state to rid it of the Pakistani infiltrators. Nehru agreed to send in the Indian Army provided that Maharaja Hari Singh signed an instrument of accession, ensuring Kashmir’s accession to India. A key condition upon which this accession was premised was that it would have to be confirmed by the Kashmiri people through a plebiscite.
There is a legal case to be made and there is hope for the people of Kashmir. The question is: are those in echelons of power in Pakistan willing to listen?
Prime facie, India seems to have an airtight legal case because of the Maharaja’s decision to sign the Instrument of Accession. This is, as per India, a valid legal instrument. However, all is not so simple under international law. First, it is clear from the facts and circumstances surrounding the signing of the Instrument of Accession that this was an agreement concluded under coercion: the Maharaja was desperate for the support of the Indian Army to fight off Pakistani troops and thus agreed to accede to India. Second, the fact that the Maharaja required the help of the Indian military indicates that he was not in a position of control or authority in his own state, meaning he could not agree to this accession on behalf of his people.
In fact, the Maharaja’s letter to Nehru clearly stated: “If my state has to be saved, immediate assistance must be made available at Srinagar”. This, again, lends credence to the argument that the Instrument of Accession is void under international law. However, even if, for the sake of argument, it is said that the Agreement is valid, the fundamental condition upon which the accession was made, as per the Instrument of Accession itself, was that the accession would be confirmed by a plebiscite of the Kashmiri people.
As the international community is well aware, no plebiscite ever took place. Without this plebiscite, India’s revocation of Articles 370 and 35A of its Constitution constitute an annexation, which is illegal under international law, particularly taking into consideration the development of international law in the Kellogg-Briand Pact of 1928 and Articles 2(3) and 2(4) of the United Nations Charter. Accordingly, under the Stimson Doctrine, the international community has a clear legal obligation to refuse recognition of any and all territorial changes stemming from this annexation.
Moreover, the international community must be reminded of its obligations under Article 41(2) of the International Law Commission’s draft articles on the Responsibility of States for Internationally Wrongful Acts, which provides that third States (i.e. States other than India, in this case) must not recognize territorial changes resulting from annexation.
Since the Kashmir dispute has now become an issue of annexation by India, the actions of the Indian Government flowing from this, particularly its attempt to change the demography, are also similarly illegal under international law. In fact, the State of India, as per international legal rules, cannot derive any advantage from its own wrong (nulluscommodumcaperapotest ex sua injuria propria).
This is a time when the Government of Pakistan should be engaging the expertise of international lawyers in Pakistan (although there are few in number here). It has become quite clear that there is zero capacity to deal with these issues if one was to rely solely on the Foreign Office or the military establishment. If Pakistan is serious about resolving the Kashmir dispute, in accordance with international law and the wishes of the Kashmiri people, it must be building its legal case, instead of relying on a little support from China here and a little help from “strategic assets” there.
There is a legal case to be made and there is hope for the people of Kashmir. The question is: are those in echelons of power in Pakistan willing to listen?
The writer is a lawyer