Mansor Qaisarani
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 has an airtight legal case because the Maharaja decided to sign the Instrument of Accession. This is, as per India, a valid legal instrument. However, all is more complex 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.
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 a plebiscite of the Kashmiri people would confirm the accession.
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 constitutes 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 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. The State of India, as per international legal rules, cannot derive any advantage from its own wrong.
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 were to rely solely on the Foreign Office or the military establishment. Suppose Pakistan is serious about resolving the Kashmir dispute by international law and the wishes of the Kashmiri people. In that case, 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 decades-long Kashmir dispute continues to simmer as a potential flashpoint between India and Pakistan. This article critically examines Pakistan’s recent shift towards a legal strategy to resolve the conflict, focusing on the potential benefits, limitations, and unanswered questions surrounding this approach.
At first glance, Pakistan’s shift towards a legal strategy holds promise as a potential game-changer in the Kashmir conflict. By framing the issue within the framework of international law, Pakistan is aiming to secure international support and challenge India’s position. The argument is based on the belief that the Instrument of Accession signed by the Maharaja of Kashmir was obtained under duress, potentially violating the Vienna Convention on the Law of Treaties. Moreover, the failure to hold a promised plebiscite further undermines India’s claim, according to this perspective.
However, this approach needs to be revised. Firstly, the historical context surrounding the Maharaja’s decision and the role of various actors is complex and open to interpretation. India undoubtedly has counter-arguments, likely emphasizing the Maharaja’s autonomy in seeking Indian military assistance. Secondly, even if Pakistan builds a compelling legal case, enforcing international law principles on powerful states like India presents a significant challenge. The international community often lacks the political will or leverage to intervene forcefully.
Furthermore, the article acknowledges a crucial weakness within Pakistan’s strategy: a lack of expertise in international law. Building a robust legal case requires skilled lawyers with a deep understanding of international legal frameworks. Relying solely on the Foreign Office or military establishment might prove insufficient in navigating the complexities of international courts.
A comprehensive approach is the need of the hour, one that addresses the limitations of Pakistan’s current strategy. It should strive for a more nuanced understanding of the historical record, acknowledging ambiguities while presenting its strongest legal arguments. Simultaneously, investing in building a team of skilled international lawyers is crucial for effectively presenting their case before international courts and tribunals.
It’s important to remember that beyond legal arguments, the principle of Kashmiri self-determination should be at the forefront. While international law provides a framework, it’s ultimately the Kashmiri people who must decide their future. Integrating this principle within the legal strategy could strengthen Pakistan’s position and resonate with the international community. Additionally, exploring alternative dispute resolution mechanisms alongside legal pursuits could offer a more holistic approach.
In conclusion, Pakistan’s shift towards a legal strategy for the Kashmir dispute represents a potentially positive development. However, the success of this approach hinges on addressing its limitations. Building a strong legal case, acknowledging historical complexities, and incorporating the principle of self-determination are crucial steps. Ultimately, a comprehensive strategy that combines legal arguments with alternative dispute resolution mechanisms might offer a more viable path toward a lasting resolution of this longstanding conflict.