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The Constitutional, Regional and International Law on The Kashmir Dispute

Besides, regional and international law, both India and Pakistan have their own constitutional laws related to the Kashmir Dispute. Article 370 of the Indian Constitution links the legislative competence of the Parliament on Kashmir to the Instrument of Accession. It may be noted that the Instrument of Accession, on which Article 370 lays the foundation of its relationship with Indian Parliament, has two features:

Basis of the Kashmir Dispute

What is the basis of the Kashmir Dispute? There is no straight answer to the question. In 1994, Professor Ali Khan of the Washburn University published an article on the Kashmir Dispute entitled ‘The Kashmir Dispute: A Plan for Regional Cooperation’ in ‘Columbia Journal of Transnational Law’ whereby he observed that both India and Pakistan advocate their points of view as per their interests, and quintessentially the ‘nature and origin’ of the Dispute remains open to conflicting interpretations. From a human rights perspective, the right to self-determination is of paramount importance in solving the Kashmir Dispute. He stated that if the roots of the Kashmir Dispute were traced on the basis of religion, the point of departure would go, at least, as back as to the Treaty of Amritsar (1846) under which the Hindu Dogras bought Jammu and Kashmir for Rs7.5 million from the British. Whatever be the factual basis of Kashmir Dispute, one thing is certain: it’s entirely a legal problem with national, regional and international law dimensions. The purpose of the instant article is to unlock the legal aspects of the Kashmir Dispute.

Constitutional Law of India and Pakistan

Besides, regional and international law, both India and Pakistan have their own constitutional laws related to the Kashmir Dispute. Article 370 of the Indian Constitution links the legislative competence of the Parliament on Kashmir to the Instrument of Accession. It may be noted that the Instrument of Accession, on which Article 370 lays the foundation of its relationship with Indian Parliament, has two features:

1. The very Instrument is a contested document as far as Pakistan’s counterclaim on Kashmir is concerned;

2. The Instrument even if accepted to have been executed validly, is in reality, an international treaty between the two states. Parking sovereignty claim on an international treaty, and then deriving legislative competence therefrom, is queer and warrants legal examination before it is received as ‘perceived wisdom’. The constitutional law of India vis-à-vis Kashmir rests upon an international treaty whose validity is not indubitable.

Pakistan’s constitutional law, on the other hand, is differently formulated. Article 257 of the Constitution of Pakistan 1973, states:

“When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State.”

This provision shows that the ‘relationship’ between the people of Pakistan and those of Jammu and Kashmir is not yet final, and is going to be decided in the light of Kashmiris’ aspirations. Historically, Article 257 is a replica of Article 203 of the 1956 Constitution. However, it had no mention in the Indian Independence Act of 1947. The legal status of this provision and its origin vis-à-vis period from 1947 to 1956 is not clear, and anyone researching on this ‘constitution-making era’, may find it a formidable query. The constitutional law of Pakistan in respect of Kashmir is pegged deep into the accession aspect (which has been acknowledged by the Indian Independence Act 1947 and the international law as contained in the Security Council Resolutions) and has been constantly preserved in the successive constitutions of Pakistan. Any alteration, therefore, in Pakistan’s stance on Kashmir has to be examined in the backdrop of the constitutional law and any administrative action alone might not be sufficient to alter the state of Pakistan’s stance on Kashmir.

Regional Law

Although no specific regional law applicable to Kashmir is there, if the Karachi Agreement of 1949 — on the basis of which Pakistan’s Interim Constitution Act of 1974 was made — were to be treated as an international treaty between the two territories, it may best be classified as a regional international treaty. Likewise, the Instrument of Accession of 26th October 1947 and the Kashmir Accord of 1974 between Sheikh Muhammad Abdullah and Indira Gandhi are at best regional international treaties. These treaties, which have provided the foundations for constitutional and national legislation, cannot be discounted for in examining the legal status of these territories. Since a treaty is an ‘agreement’ in its essence, therefore, the ‘consent’ part of it cannot be divorced in an attempt to ascertain the aspirations of the people of these areas.

International Law

Between 1947 and 1971, as many as 18 Security Council Resolutions were passed in connection with the Kashmir Dispute; all of these were Chapter VI Resolutions under the UN Charter. Brian R. Farrell of the University of Iowa’s College of Law, has written in detail about the international law as contained in the UNSC Resolutions in his article ‘The Security Council and Kashmir’. The most important amongst these Resolutions is UNSC Resolution 47 of 1948 from the viewpoint of Pakistan. The Resolution was a detailed document, which separately outlined the obligations for Pakistan and India, and later provided for establishing of a ‘Jammu and Kashmir Plebiscite Administrator’ for ultimately conducting the plebiscite.

Admittedly, the international law on Kashmir does not emanate from a single legal document; it is found in plethora of documents. Primarily, the UNSC Resolutions and the related work of successive Commissions, Representatives and Rapporteurs appointed from time to time under the international mandate constitute the legal basis of international law applicable on the Kashmir Dispute. Besides, the international human rights values that have assumed the status of customary international law, especially with reference to the right to self-determination of Kashmiri people, serves as the international law on the point. There are significant claims and counterclaims from both sides, which have averred ‘determination’ as noted by Brian R. Farrell. From a cursory study of the international law dimensions of the Kashmir Dispute, the following points warrant detailed examination:

1. Instrument of Accession: Legal Status

One of the major moot points is the very legality of the Instrument of Accession. While India rests its legal case regarding Kashmir on the Instrument of Accession executed by Maharaja Hari Singh on 26th October, 1947, Pakistan assails it, inter alia, on the basis of two grounds:

a. That the Instrument of Accession did not reflect the aspirations of people of the state, therefore, no legal consequences can flow from it;

b. That besides illegality of the Instrument of Accession, it was admitted by Nehru subject to confirmation by Plebiscite of the people of Kashmir. The condition of confirmation was never fulfilled, therefore, it did not materialize;

2. The Basis of the Right to Self-determination

What, then, is the basis of the right to Self-determination in the Kashmir Dispute? Is it the cardinal value as contained in the UN Charter and the UN Declaration for Human Rights and the customary nature of international law regarding this value, or is it somewhere in the UNSC Resolutions? The answer is not clear and must be distinctively addressed and formulated for ascertaining its legal value vis-à-vis Kashmir Dispute.

3. The Mode of Resolution of the Dispute

While the world, at large, acknowledges Kashmir as a ‘Dispute’ that deserves earnest resolution, India, on one pretext or the other and by use of machinations of resolution mechanisms, has always tried to hoodwink the process. Whatever be the mode of resolution of the Dispute, one thing is certain: it has to be resolved if fratricidal damage is to be averted.

4. Consequences of Neutralizing International Law

India’s new Premier, Narendra Modi, during his campaign had stated that the issue of Kashmir should be debated. It is widely believed that after becoming Prime Minister, his party, the BJP, is attempting to bring in-house change in Kashmir to satisfy constitutional requirement under Article 370 of the Indian Constitution and thereafter his party will attempt to engineer some constitutional device to neutralize effect of international law on Kashmir. Be that as it may be, such an attempt may not be productive and may lead to what American legal philosopher Walter Lippmann called ‘Lawless Legality’.

5. Regulation of the Use of Force

Until the Kashmir Dispute is finally settled, there is always a likelihood that India and Pakistan would resort to the use of force as it has happened in 2014. The regulation of such use of force needs delicate regulation as the possibility of a skirmish turning into a battle may happen accidently and without design. The extant United Nations Military Observer Group in India and Pakistan (UNMOGIP) seemingly is running out of its utility.

Conclusion

Two points may be noted in connection with the discussion above:

First, what is the legal basis of stance of Pakistan on Kashmir Dispute? Is Pakistan’s Kashmir policy a product of administrative action, or is it an outcome of customary international law backed by international legal obligations fecundated in Security Council Resolutions; perhaps the latter connection with customary international law is more pronounced and any administrative action alone might not be able to undo the stance of Pakistan on this point.

Secondly, Neal Gidvani of the University of Iowa, College of Law, in his paper titled ‘the Peaceful Resolution of Kashmir: A United Nations Led Effort for Successful International Mediation and a Permanent Resolution to the India-Pakistan Conflict’ enumerated four factors, which must be considered by the UN, and international efforts be made to resolve the issue. These four factors are: nuclear weapons, political instability, terrorism and continuing conflict between India and Pakistan. His views may not be ascribed by many, but the fact is that the asymmetrical growth patterns of the two countries and the surge of international politics in the region, invite an occasion to reconsider the trodden paths by both the countries. The landmarks to co-existence in this journey are, however, defined by following the legal course instead of trying other options.

The author is an independent researcher and has done his BCL from the University of Oxford.
kamranadil@yahoo.com

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