Kashmir is an international dispute

International Law was known as Law of Nations. The term ‘international law’ was
firstly introduced by Jeremy Bentham in his book, An Introduction to the Principles of Morals
and Legislation, 1789. He explained that, a matter is ‘internal’ when it deals with members of
same state, but it is ‘international’ when it engages members of different states. Kashmir is an
internal dispute; it is an assertion from India. While rhetorical claim from Pakistan is that,
it is an international dispute. However, this question itself is the subject matter of
international law, not internal law. Therefore, the answer should be analyzed within the
parameters of international law. And by all angles of international law, Kashmir is an
international dispute.

Firstly, through the viewpoint of term ‘dispute’. The term dispute can generally be
defined as, “a disagreement on point of law or fact; or the conflict of legal views or interests
between two persons”. And internationally in famous Marshall Island’s case International
Court of Justice held that “whether a dispute exists is a matter for objective
determination . . . on an examination of the facts”; but there must be a “clear opposite view”
amongst parties. A dispute is more than a mere disagreement. It is a stage where dispute
resolution methodologies are applicable. And thus from international law’s perspective, the
contention wherein the international dispute settlement methodologies, like negotiations
or mediation, are applicable. And mediation offered by United States’ President is obvious
to everyone, so it is an international dispute.

Secondly, this question can also be analyzed in an obligational perspective. Do states

are bound to settle their disputes under international law? The answer is, if there is no
treaty amid them, then they are not obliged to do it. But in this case, there are two treaties;
first one is Shimla Agreement 1972 and the second is Lahore Declaration 1999. In former,
both undertook to settle their disputes by “negotiations or any other peaceful means
agreed between them”, and “neither side shall unilaterally alter the situation”; which was
done by India on August 5, 2019. Further in para 7 both parties agreed to meet again for
settlement of disputes, including for “final settlement of Jammu and Kashmir”, from which
India is running away. And in latter treaty, both reiterated and resolved to enforce Shimla
Agreement 1972. Furthermore, they agreed that for peace in region, resolution of all
outstanding issues including Jammu and Kashmir is indispensable. These two treaties,
makes Kashmir issue an international dispute.

Thirdly, through the prism of United Nations Charter (charter). This charter—to
which almost all nations are parties—obliged India and Pakistan to adjust or settle their
disputes by peaceful means and in conformity with principles of justice and international
law. And in Shimla Agreement both in its clause I of Article 1 agreed that, “the principles
and purposes of the Charter shall govern the relations between the two countries.”
Furthermore the article 2(3) read with article 33 of the charter, compels both parties to
actively seek peaceful settlements of disputes which are likely to endanger international
peace. International peace, in presence of more than 15,000 nuclear weapons worldwide,
with 130 to 150 share of India and Pakistan—more powerful than dropped on Japan in
1945—is certainly in endanger. Little risk in this regard, might cause nuclear World War.
How world will use this charter? When there would be no world anymore, in case of war.
And right now, humanity needs not the mushroom cloud but peace and prosperity. So,
when whole word’s future is at stake, then this dispute is surely an international dispute.

Fourthly, the Security Council under United Nations’ umbrella also regarded the
Kashmir issue, an international dispute. Since 1948, it has passed 11 resolutions in this
regard. The primary resolution is No. 47 of 1948 wherein this dispute was considered to be
dangerous for international peace and security. In the same, plebiscite was decided as the
solution. The subsequent resolutions reiterated it. The irony of the matter is that in 1948,
India itself took the issue—acknowledging it as an international dispute—to the Security
Council forum. And now it is reverting from its stance. These resolutions are still in field,
and unanimous on the point that Kashmir is an international dispute. Furthermore, India
has never challenged them at any forum, and acted on August 5, 2019 in blatant violations
of these resolutions.

And last but not least, through the vantage point of other international instruments,
this issue is certainly not internal. The right to self-determination—core principle of
international law— and right to freedom, has been recognized and protected in all major
treaties. It is described as one of the purposes of United Nations under article 1 and 55 of
the charter. It was also confirmed by the United Nations General Assembly in the
Declaration of Friendly Relations, 1970. Article 1, common to the International Covenant on
Economic, Social and Cultural Rights and the International Covenant on Civil and Political
Rights, 1966 reaffirms it. Furthermore, many regional instruments like Organization of
American States, 1948 and Organization of African Unity, 1981 hailed this right as
fundamental to humans. In the presence of these instruments, Kashmiris too have this
right. And thus, their case is not Indian internal matter.

The above evidences suggest that Kashmir is a disputed territory. Security Council
again on August 16, 2019 in an impassive manner, retold the world that the Kashmir is an
international dispute. Being initiator of taking the issue at international forum, India cannot
approbate and reprobate at the same time by calling it an internal matter. Besides this, if
East Timor’s right to self-determination can be welcomed and endorsed by world in 2002,
then why not for Kashmiris. Lastly, the test is not of Pakistan or of Kashmiri people. The
test is of the world, and the United Nations. Whether they considered international law as a
true law or not? If they do, then why the world and United Nations is not implementing it in
its letter and spirit in Kashmir’s dispute.

Hafiz Muhammad Azeem.

The writer is a lawyer and teaches law.