Daily Times

The universal black day on Kashmir observed on October 27 is the true representation of global concern on the current Kashmir crisis. A US court has recently asked Indian Premier Narendra Modi and other members of his government to respond within a short stipulated period to the charge that they have occupied Kashmir and are committing gross human rights violations there. The action has been taken on a complaint filed by the Kashmir Khalistan Referendum Front in a US district court, in Houston, Texas, Truly, the status of J&K within the Indian legal framework is hard to qualify according to comparative and international legal standards. The August 5 move by the Modi government is an open travesty of international law.

Though officially US policy on Kashmir remains unchanged and the fact that President Trump has tendered his mediation offer on Kashmir, yet the White House controversial policy of recounting Jerusalem as Israel capital has set a dangerous precedent–overriding international law and diplomatic consensus. It appears that Mr Modi has blatantly tried to copy Trump’s Jerusalem adventurism in Kashmir. India illegally occupied Kashmir on October 27, 1947, and New Delhi upped the ante by unilaterally changing the disputed territorial status on August 5, 2019, to further change its demographic structure and identity. Currently, three US lawmakers, Ilhan Omar, Tom Malinowski and David Cicilline, asked US officials testifying before the Congressional panel, whether the Indian government’s motivation behind the recent Kashmir decision was national security or an ultra-nationalist and majoritarian agenda. Congresswoman Sheila Jackson Lee, asked Assistant Secretary of State for Democracy and Human Rights Robert Destro if he would describe the situation in IOK as a “humanitarian crisis,” Mr Destro said, “Yes, it is.”

In explaining its decision to revoke Articles 370 and 35a, India has used the language of counter-terrorism that has become so common since 9/11, coupled with the promise of corporate development. These are two classic colonial justifications reframed for a 21st-century lexicon. Modi knows there is no democratic basis for such a radical imposition of the Indian government’s power over Kashmir, so he is carrying out Article 370’s abrogation by force. Undeniably, cancelling Article 370 is part of a fulfilment of that promise of reinvigorating Hindu India, in a way that may be both supremacist and democratic, even if fundamentally flawed. “The type of ‘democratic’ state exemplified by Israel – and not Pakistan – is the model the Hindu nationalist movement, led by its core RSS organisation, aspires to establish in an Indian variant,” Sumantra Bose, professor at the London School of Economics and Political Science, writes. More importantly, it also paves the way for a full settler-colonial project in Kashmir with the next stage likely to involve Hindu-only enclaves, much like Jewish settlements in the West Bank. Unfortunately, Modi’s colonial plan seems to have been whimsically replicating both the US and Israeli state structures.

Whereas, to seek greater integration is not the same as being ‘integrated’. As such, J&K cannot be characterized as integrated into India under international law. Indeed, the latter would imply equal status between citizens of both territories (endorsed by UGA resolution in 1960: principle VII), and as mentioned above J&K’s permanent residents are immune to article 14 of the Indian Constitution, while their citizenry privileges are not limited only to the acquisition of land, but also grant them priority for most local government jobs and the judiciary. Integration, although it is an aim, is therefore far from being a completed process.

Pakistan holds a warranted legal contention auguring that sovereignty over Kashmir does not rest in either India or Pakistan. The issue involves the right of self-determination of the people of Kashmir

Therefore, any partial integration could be objectively explained by a difference in legal treatment pertaining to J&K’s population on the one hand (permanent residents being fully incorporated to India through a common nationality), and its territory on the other (where India’s sovereignty does not fully extend accordingly). Consequently, J&K’s legal status within the Indian Union cannot be justified since it does not easily fit into pre-conceived ‘legal stratifications’, whether through an international or comparative lens or. And hence, New Delhi’s Thriving towards integration within the Indian Union is tantamount to having a self-imposed legal structure. Though one cannot ignore India’s de facto political and military influence over the State. But India’s de jure capacity to influence J&K’s legal order remains constrained, and this despite political pressure from the central government in New Delhi. Obviously, India’s latest move of abolishing Article 35a of the Jammu and Kashmir state constitution is meant to unjustifiably allow non-Kashmiris to buy land, hold jobs and further colonise Kashmir’s rich resources. The influx of Indian settlers is designed to change Kashmir’s demography and may lead to ethnic cleansing– inaugurating India as a settler-colonialist state in Kashmir.

Pakistan holds a warranted legal contention auguring that sovereignty over Kashmir does not rest in either India or Pakistan. The issue involves the right of self-determination of the people of Kashmir. The will of the people must be ascertained on the disputed question of Accession. Where a ruler did not belong to the majority community of the subjects, and where the state had not acceded to the dominion the majority community of which is the same as that of the state, the question of accession must be resolved by seeking the will of the people.

According to the International Law Commission’s Articles on State Responsibility (Art 41.2), the duty not to recognize a situation as lawful nor aid or assist in maintaining that situation arises for third states when there is a jus cogens violation. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice concluded (Para. 159) that third states had the duties of non-recognition and non-assistance: And yet conversely, Indian Armed Force investigates their own human right abuse and do not put the cases before public results in the paralysing of Human Right Commissions. Draconian laws and lack of independent judicial system has resulted in the denial of fair trial and justice and has left the people unheard. Kashmir cannot get an impartial judicial system until the dispute is solved, but the United Nation can take the first step to ensure justice. On September 8, the JKLF leaders have solicited the AJK government to bring any special representative of the UN Secretary-General as well as representatives of the P5 members of Security Council to whom they could present their charter of demands.

Modi’s unilateral actions to change the Kashmir status from ‘occupation to annexation’ notwithstanding, the fact is that Kashmir is an internationally recognized disputed territory and will remain so until the legitimate aspirations of the Kashmiris are fulfilled. History is a reminder that despite increased pressure on East German authorities to increase freedom of movement between East and West, no one woke up on November 9th, 1989 expecting to see people tearing down the wall that evening. After all, that day the government had to withdraw before the will of the people.

The writer is an independent ‘IR’ researcher and international law analyst based in Pakistan