1st LFOVK Moot Court Competition - Regional Round 2020

1st LFOVK Moot Court Competition - Regional Round 2020

Organized by the

Legal Forum for Oppressed Voices of Kashmir

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Pakistan v. India

1) The area of Kashmir is in the continent of Asia. Till 16th day of March, 1846 State of Jammu

and Kashmir was not in the shape, as it is present. Under the Treaty of Amritser,1846 the British

Government transferred all the hilly, mountainous country situated to the east wards of the river

Indus and the west ward of river Ravi including Chamba, which territories had been ceded to

the British Government by the Lahore state under the Treaty of Lahore dated 09-03-1846. Thus,

it became the sovereign territories of the state of Jammu and Kashmir in first instance and these

territories were comprised with in the State of Jammu and Kashmir.

2) After the British India was created and was controlled and administrated by British Government,

as a consequence of political developments within British India and urged to share a power, the

British Parliament enacted Government of India Act 1935.

3) This Act for the first time made provision for Accession of "Indian States" to the “British

India". The Ruler of the State of Jammu and Kashmir did not accede to any stage to the British

India and in fact after four years of the Act of 1935, Constitution Act of 1939 was

promulgated by Jammu and Kashmir. The State of the Jammu and Kashmir continued to

enjoy its Sovereign Independent Status.

4) Under the Government of India Act, 1935 as adopted and modified by Indian Independence Act

1947 and in accordance with the Cabinet Mission Plan of 1946, Kashmir State could either

accede to Pakistan or to India and or to remain as it was, maintaining its Independent

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Status. The state of Jammu and Kashmir did not accede to any of the dominions by 15-

081947 and continued to maintain its Independence. The ruler signed "Standstill

Agreement" with dominion of Pakistan. No such agreement was concluded between

"Kashmir state and India".

5) The position continued till third week of October, 1947 when disturbance occurred within

territories of State. The Muslim population of Jammu and Poonch were ordered to leave their

homes but before it could be implemented many people were cold bloodedly massacred and

their villages were set on fire. More than 20,0000 Muslims were exterminated unless they

escaped to Pakistan by the force of Dogra State led by Head Maharaja Hari Singh.

6) The news of the mass genocide perpetrated by Hindu Maharaja inflamed the passion of the

Muslims of Kashmir and Pakistan who came to respond the attack of Hindu Dogra army, the

Pathan tribesmen from North Western Frontier Provinces entered Kashmir to help their Co-

religionists who were in trouble. The Ruler's own force were unable to contain the disturbance.

To save his life Maharaja Hari Singh left Srinagar on 25 October 1947 and went to Jammu. It

is under these circumstances that the "Instrument of Accession" is said to have been signed by

fleeing Maharaja on October 26, 1947 which was responded by the Governor General of India

on October 27, 1947.

7) In the letter of acceptance, the Governor General made the following representation "My

Government has decided to accept accession of Kashmir State to dominion of India. In

Consistence with their policy that in the case of any state where the issue of accession has

been the subject of dispute. The question of accession should be decided in accordance

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with wishes of the people of state. It is my Government's wish, that as soon as the law and

order have been restored in Kashmir and its soil cleared of the invaders, the question of

State's Accession should be a reference to the People".

8) On 1st January 1948, India took the question of the Kashmir to the United Nation by instituting

a complaint against Pakistan in Security Council. The Indian complaint was based on Article

35 of chapter VI of the UN charter which relates too "Pacific Settlement of Dispute" and not

chapter VII which deals with the Act of Aggression. The Indian Government alleged that the

invaders were operating against Kashmir which has acceded to India. The government of

Pakistan filed counter complaint before United Nation Security Council where they denied the

Indian charge of assisting the invaders and brought charge against India that they are involved

in the genocide of Muslim population, and securing the accession of Kashmir by fraud and

violence.

9) After hearing the representative of both the governments, the Security Council passed first

resolution on 17-01-1948. "It asked the two governments to refrain from aggravating the

situation. It also requested them to immediately apprise the council of any material change in

the situation. By virtue of the second resolution of UNSC 20 January 1948, it established the

United Nation Commission for India and Pakistan (UNCIP).

10) The leaders of the both the countries after negotiations and on the spot study of the situation,

the commission adopted two resolutions on 13 August 1948 and 05 January 1949. The first

resolution, consisted of three parts. According to part I, the government of India and Pakistan

were to observe ceasefire in the State of Jammu and Kashmir. Part II stipulated the principle as

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a basis for truce agreement. Part III which is important, reaffirmed their wish that the future

status of the state would be determined by way of Right to Self-determination. According to the

terms of resolution of 5th January 1949, the accession of the state will be decided through a free

and impartial plebiscite. The UNSC passed many resolutions reaffirming the principle of Right

to Self-Determination and direction to both parties for de-militarization.

11) After the constituent Assembly for making of constitution of India was convened a draft article

was taken up, which was later considered and became Article 370 of constitution (Annexure-

A); giving the special powers to state of Jammu and Kashmir. The Security Council on 13

March 1951 adopted resolution as reaffirming the principle that the final disposal of the state

would be through a free and impartial plebiscite it declared that

"any action that the constituent assembly might attempt to take to determine the future shape

and affiliation of the entire state or any part these off would not constitute act disposition of in

accordance of the above principle".

12) There have been three wars between India and Pakistan over Kashmir. The war of 1965 led the

parties to enter into Tashkent Agreement which was signed in January, 1966, at Tashkent. The

said agreement which was called by Mr. Kosygin as “Bible for Security Council. The UNSC

resolutions on Kashmir continued until war broke out between India and Pakistan in 1971. The

both parties entered into "Shimla Agreement" no efforts were made by the two countries

thereafter to settle the Kashmir dispute peacefully or amicably

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13) Indian government contend that the Shimla agreement invalidate the UN security council

resolutions irrespective of the validity they possessed initially also the Kashmir question

became India’s internal issue. So, the state of Jammu Kashmir is not recognized as an

international person for the simple reason that it is neither a full sovereign nor half sovereign

political entity. It is not state in the sense in which the term is used in international law. It neither

possesses independence nor can it exercise personal supremacy. The state is integral part of

India and is governed under the paramountcy of its constitution.

14) In 1989 Kashmir’s started military struggle against India for achieving their basic and

fundamental right. The international organizations including the Jammu Kashmir coalition of

civil society reports that the Kashmir valley has lost 95968 civilians excluding 8000 custodial

killings. Indian forces as of now have arrested more than 150,793 civilians during three decades

and 107,844 houses, buildings, shops businesses and other national assets have been destroyed

in this ongoing conflict. The women and children are mostly affected due to the prolonged

conflict as more than ten thousand women specifically young girls were either molested or raped

by Indian army, over 107607 children’s were orphaned.

15) The early years of 1990, daily life was a routine of crackdowns, curfews, mass arrests,

indiscriminate firing from Indian Army and police on demonstrators. These were the years of

the forgotten massacres seared in Kashmiri memory, but forgotten by the rest of the world.

Kashmiri pundits who were part of Jammu and Kashmir state left in early 1990’s due to unrest,

they alleged that the Kashmiris are involved in the exodus of Hindus, which should be

investigated.

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16) There have been 11 massacres perpetrated by Indian Army with zero persecutions in

Kashmir. They include,

i. Gawakadal massacre : On 21 January 19990, 51 civilians were killed during

protest

ii. Hundwara massacre: On 25th January 1990, two BSF killed 25 people and hundreds

of civilians were injured.

iii. Zakoora and Tengpora massacre: Indian forces killed 33 protestors and injured 47

civilians iv. Hawal massacre: On 21 May 1990 over 60 civilians were killed by

paramilitart forces and hundreds were injured by indiscriminate firing on tht funeral

procession of Mirqaiz Muhaammad Farooq

v. In Sopore , Bijbehara and Kupwara massacre 133 civilians were killed by Indian

troops.

17) Another major case is that of Kunan Poshpora where in February 1991, a mass rape took place

in the village where more than 100 women were raped by Indian army. The FIR was instantly

filed against the Indian army but now it has been more than 25 years and the petition is still

pending before the Supreme Court of India with zero persecutions.

18) The United Nations Office of the High Commission for human rights after a three decades have

come up with the exhaustive report on human rights abuse in Jammu and Kashmir wherein,

they accused India for multiple crimes perpetrated by Indian Army in the valley. The two reports

further enunciate that the government of India is taking recourse to the draconian law to muzzle

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the voices of innocent Kashmir’s. The report further lays down that India should stop

committing human right abuse which includes extra judicial killings, torture, arbitrary

detention, enforced disappearances, sexual violence and excessive use of force against unarmed

civilians. The high commission directed India that they should respect the right of self-

determination to the people of Jammu and Kashmir.

19) The government of India while responding to these alleged reports submits that the UN OHCHR

has leveled baseless allegations bereft of truth against the security establishment.

The Kashmir being completely internal matter of India, no third party or any other independent
organization have any role or given mandate to interfere. The government of Pakistan and its
security establishment is involved in cross border terrorism which is the basic cause of growing
violence in state.

20) According to CIA world book the dispute between china India and Pakistan the issue of Kashmir

has made it the largest and most militarized territorial dispute in the world. Political activists in

Kashmir who are struggling to achieve the goal of the right to self-determination says that the

onus of militarizing the region is more on India. A WikiLeaks also accused India of systematic

human rights abuse; it stated that US diplomats possessed evidence of the apparent wide spread

use of torture by Indian police and security force. The conflict region has resulted disappearance

of more than eight thousand persons, the killing of more than 96000 civilians and the presence

of 6000 + of unmarked graves.

21) On August 5, the authorities shut down all forms of communication in Jammu and Kashmir,

including internet, cell phones, and landlines. The government also imposed broad restrictions

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on freedom of movement and banned public meetings. The disruption to internet and

telecommunication services has exacerbated an information blackout, while the restrictions on

movement placed vulnerable people at risk, hindering access to crucial medical care and other

services.

22) The government of India on the same date, when state of Jammu Kashmir had not elected

government and was directly ruled by central government abrogated the article 370 of India

constitution which gives special status to the Kashmir. In the BJP’s 2019 manifesto, the page

containing the pledge to revoke Kashmir’s special status also includes a quote from Prime

Minister Narendra Modi: “India supports peace, but the country will not hesitate to take any

steps required for national security.” The unilateral act of BJP led parliament not only annexed

but bifurcated the state into two union territories of India. The entire state was placed under the

strict curfew all the means of communication were bared. The government arrested the leaders

and activists of all the mainstream and pro freedom parties.

23) There have been reports of sporadic protests in Kashmir since August 5, and of security forces

using pellet shotguns that have led to about a dozen injuries. The use of pellet-firing shotguns

as a crowd-control weapon in Kashmir has received widespread condemnation because of the

large number of protester deaths and injuries. The India government says it has adopted these

measures to ensure law and order. Accusing Pakistan of instigating violent protests and militant

attacks, the government has also deployed tens of thousands of additional troops to the region.

24) The recent act of Indian government was condemned by international community including its

own political parties, Pakistan calling itself important party to the instant dispute approach the
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UNSC after more than 50 years on Kashmir. An informal meeting was held by P5 members of

Security Council on Kashmir where they directed both the parties to resolve their dispute over

Kashmir amicably. Pakistan called the Indian act of abrogating special status an act of

aggression and also alleged that Indian has violated 11 UNSC Resolution and Bilateral treaties

while India call act of abrogating special status an internal constitution matter which is well

mandated under law.

25) Pakistan contends that the State of Jammu Kashmir is under military occupation and the

government of India is involved in heinous war crimes and other human rights violation in

Kashmir whereas; India calls Kashmir internal problems and argues that the Pakistan is creating

trouble in Kashmir by supporting violence moreover India rejects any third party intervention

on Kashmir and find the solution within their domestic constitution.

26) Pakistan and India are both parties to UN Charter, ICCPR, ICESCR and Four Geneva

Conventions

27) Considering the whole situation, the government of Pakistan has brought the following charges.

i. The government of India is illegally occupying the territory of Jammu Kashmir which is in

violation of Geneva Convention and the recent act of illegal annexation amounts to act of

aggression?

ii. Government of India is violating the principal of right to self-determination guaranteed under

UN charter

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ANNEXURE A

Article 370 of the Constitution of India

Notwithstanding anything in this Constitution:

The provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir, the

power of Parliament to make laws for the said State shall be limited to; those matters in the Union

List and the Concurrent List which, in consultation with the Government of the State, are declared

by the President to correspond to matters specified in the Instrument of Accession governing the

accession of the State to the Dominion of India as the matters with respect to which the Dominion

Legislature may make laws for that State; and such other matters in the said Lists, as, with the

concurrence of the Government of the State, the President may by order specify.

Explanation—For the purpose of this article, the Government of the State means the person for the

time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice

of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated

the fifth day of March, 1948; he provisions of article 1 and of this article shall apply in relation to

this State; Such of the other provisions of this Constitution shall apply in relation to that State

subject to such exceptions and modifications as the President may by order specify

Provided that no such order which relates to the matters specified in the Instrument of Accession

of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with

the Government of the State:

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Provided further that no such order which relates to matters other than those referred to in the last

preceding proviso shall be issued except with the concurrence of the Government.

If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of

clause (1) or in second proviso to sub-clause (d) of that clause be given before the Constituent

Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed

before such Assembly for such decision as it may take thereon.

Notwithstanding anything in the foregoing provisions of the article, the President may, by public

notification, declare that this article shall cease to be operative or shall be operative only with such

exceptions and modifications and from such date as he may notify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause

(2) shall be necessary before the President issues such a notification.

In exercise of the powers conferred by this article the President, on the recommendation of the

Constituent Assembly of the State of Jammu and Kashmir, declared that, as from the 17th day of

November, 1952, the said art. 370 shall be operative with the modification that for the explanation

in cl.(1) thereof the following Explanation is substituted namely:

Explanation—For the purpose of this Article, the Government of the State means the person for

the time being recognised by the President on the recommendation of the Legislative Assembly of

the State as the *Sadar-I-Riyasat of Jammu and Kashmir, acting on the advice of Council of

Ministers of the State for the time being in office.

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RESEARCH MATERIAL

ARTICLE

 Kashmir Back at UN Security Council Table by Nasir Qadri

Available at : https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3438912

BOOKS

 “Kashmir Dispute” An international Law Perspective by Ijaz Hussain

 Constitutional and political history of Pakistan by Hamid Khan
 Incomplete Partition and Kashmir; A Disputed Legacy by Alastair Lamb
 International law by Blackstone
 International law by S.K Kapoor
 Kashmir Problems by Dr. H.O Agarwal
 Shahabnama by Qudratullah khan Shahab

CASE LAWS

 Barcelona Traction Judgement case ICJ report 1970

 Georgia v. Russia (ICJ)
 ICJ Advisory Opinion Kosovo
 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Wall case (advisory opinion)
 Portugal v Australia ICJ June 30th, 1995
 Western Sahara, Advisory Opinion, ICJ GL No 61, [1975] ICJ Rep 12, ICGJ 214 (ICJ
1975), 16th October 1975, United Nations [UN]; International Court of Justice [ICJ]

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CONSTITUTIONS

 Constitution of India
 Constitution of Jammu and Kashmir

CONVENTIONS

 The Geneva Conventions Of 12 August 1949

 The International Covenant on Civil and Political Rights (ICCPR)
 The International Covenant on Economic, Social and Cultural Rights (ICESCR)
 The Universal Declaration of Human Rights (UDHR)
 United Nation Charter

REPORTS

 Office of UNHC for HR reports 14th June, 2018

 Office of UNHC for HR reports 2019

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