Kashmir Issue Critical Analysis

 What are reasons behind Modi’s move to revoke special

status of Kashmir?

 In his independence speech, Modi said that the decision was taken to develop
Kashmir, end ‘terrorism’ and bring prosperity to the region. The time will reveal that
opposite will happen. However, Modi’s August 5, 2019 decision to revoke Kashmir’s
special status is driven by following factors:

1. On individual level, he wished to demonstrate his decisiveness to the Hinduvta

brigades that he is the leader of Indians, or more precisely, Hindus, should look up to.
That if he can deliver on Kashmir, he can do anything. All the populist leaders walked his
path to rouse passion in their constituency. But, this is breathtaking betrayal by Hinduvta
brigades and nothing short of ‘Legislative Authoritarianism’ imposed on innocent
Kashmiri’s in a bid to continue occupation of their land and resources.

2. Secondly, Ideological reasons, Like Hindutva, motivated BJP to scrap the

special status. Bifurcation of (Indian occupied) Kashmir means rule of central Hindu
leader over Muslims- a revenge of centuries old Muslim rule. For Modi’s supporters,
Hindu rashtra is in making (RSS Rashtrya Swayamsewak Sangh).

3. BJP is highly unpopular on economic front. Growth has slowed to 5.8% in first
quarter, unemployment rate has risen to 6.9%, and major corporations are downsizing
and are on verge of Bankruptcy. Jat airways went Bankrupt. Air India suffered 7600
Crores (Indian Rs). Hindustan aeronautics with over 30,000 is cashless and another
story of disaster. Kashmir is fine choice to divert attention.

4. The decision came at the time when Afghan peace process was underway and
in positive direction. Zero role of India does not auger well for her imperial ambitions
in South-Asia. Playing Kashmir Card is carefully calculated way to get attention.

5. India, since 1972, has advocated the transformations of line of control from de
facto to de jure border. The decision sums up India’s historic approach. In 1948, New

KIPS CSS/PMS
anjanjua.91@gmail.com Page 1
 Kashmir Issue Critical Analysis
Delhi Made issue ‘international’, in 1972 ‘bilateral’, and in 2019 ‘internal'. It had long
wanted to ‘colonize’ Kashmir. It was just a matter of time.

6. The decision was taken unilaterally because the international environment is drifting
towards ‘unilateralism’. US unilateral decisions to pull from ‘Paris Climate Agreement’
withdrawal from Iran Nuclear deal and Intermediate Range Nuclear Forces Treaty and
Israel’s decade’s long disdain for multilateralism for ending illegal settlement in West
Bank are role models for India.

 Its Implications on the region and beyond:

Constitutionally, the immediate implications are that occupied Kashmir will lose its flag,
criminal code and constitution.

1. It led to downgrading of diplomatic ties between Pakistan and India. Moreover, it

led to suspension of bilateral trade, review of bilateral arrangements, matter was taken
to United Nations and August 14 was observed in solidarity with Kashmiri’s. it has also
closed any possibility of dialogue with India, at least in near future. Prime Minister Imran
Khan said, “There is no point in talking to them, I mean, I have done all talking.
Unfortunately, now when I look back, all the overtures that I was making for peace and
dialogue, I think they took it for appeasement.”

2. The move also ‘Internationalized’ the issue. Kashmir was back on UNSC agenda
after 50 years. Maleeha Lodhi said, “This meeting has reaffirmed the validity of the
UNSC resolutions on the occupied state of Jammu and Kashmir.” It is also big success of
Pakistan on diplomatic front since India tried hard for the meeting not to take place.
India stood isolated-not otherwise.

3. India’s shaky position at diplomatic front and backlash at home makes Kashmir
“Genocide risk area’ according to Genocide Watch. This is likely to create regional
consequences as Pakistan would be under immense pressure to extend ‘material
support’ to the movement. The sword of FATF and IMF might fall on Pakistan, if
Islamabad does so.

KIPS CSS/PMS
anjanjua.91@gmail.com Page 2
 Kashmir Issue Critical Analysis
4. As the situation gets tense, hawks on both sides of the border will reign supreme. The
region is already prone to political extremism. Will Kashmir finally implode? In case of
brute force, mass detentions, wishes of Hindu’s MP’s to marry beautiful Kashmiri girls
and use of rape as state policy; it would.

5. There is serious risk of ‘Limited Nuclear War’. Indian defense minister’s statement
on review of ‘no first use policy’ might generate security dilemma and prepare the
region for irreversible consequences. It will compel Pakistan to respond ‘every brick
with stone’, dominate ‘escalation ladder’, surprise India and teach her a lesson at
the time and place of its own choosing’ by demonstrating its ‘capability, will
and resolve’.

6. Kashmir-led Kashmir-owned insurgency in Kashmir will gather momentum.

Hizbul Mujahedeen will be the force to reckon with. Its ranks would swell. In recent
days Al-Qaeda and ISIS have also opened their Indian chapters. This will really bring
terrorism to India that has been proverbial boy who cried wolf. Would India be able to
sustain it? Munir Akram rightly remarked; Kashmir will be India’s Afghanistan.

7. Given the volatile nature of economies, the threat of economic recession in South
Asia looms large. In these ‘protectionist times’ it will be the bird of bad omen.
8. Indo Pak water war is also in the making. Indian decision to use water as a
weapon in war is not new. The release of water into river Sutlej without prior
notification reveals not only the frustration of India to punish Pakistan but also her
disdain for Indus water Treaty.

9. Moditva marks final nail in the coffin of South-Asian regionalism. India has
already created its own regionalism in the form of Bay of Bengal Initiative for Multi-
Spectral Technical and Economic Co-operation (BIMSTEC). This will create regional
antagonism vis-à-vis SCO.

10. Indo-Pak crisis will impact peace process in Afghanistan. The fact is that
talks have been slowed as US accepted Afghanistan as graveyard of Empires. Given

KIPS CSS/PMS
anjanjua.91@gmail.com Page 3
 Kashmir Issue Critical Analysis
Afghan present conditions of hold of Taliban region awaits peace. India is playing role
of spoiler and enemy of regional peace.

11. The guilty calculated silence of so-called ‘Muslim World’ and UAE’s decision
to confer highest civilian award to Modi at a time when Kashmir is locked down are
grim reminder of the reality that blood is not thicker than water. Realpolitik and
economic interests, not morality defines relations between nations. An unholy
alliance stands exposed.

 Options For Pakistan:

1. It is commendable that Pakistan has so openly stood by the Kashmiri’s. it is

even more praiseworthy that foreign office will see the opening of Kashmir cell and
embassies will open Kashmir desk to highlight Kashmir cause and Hinduvta atrocities
on all diplomatic fronts.

2. Pakistan should find avenues of co-operation with International media to

expose ‘tyranny of the majority’ in occupied Kashmir and do its best to sway
international public opinion in the favor of Kashmir. Psychological war needs to be
won. ISPR is best at it.

3. Serious assessment of Indo-Pak crisis is that Bilateralism cannot work- third-

party can. Only US can pressure India to come to terms with Pakistan. August 05
decision is akin to ‘cock a snook’ to Trump’s mediation offer. How effectively can
Pakistan get reciprocal cooperation from America in exchange of US-Taliban talks?
Military diplomacy and creative work by foreign office is the dire need of hour.

4. Upcoming UNGA session should be used as an opportunity to awaken the

consciousness of humanity that Kashmir crisis is not just territorial but also a
humanitarian one. Protests across diplomatic capitals wherever Modi goes should
be supported and ’Hitler of Sub-continent’ should be exposed.

KIPS CSS/PMS
anjanjua.91@gmail.com Page 4
 Kashmir Issue Critical Analysis

5. Muslim countries like Turkey, Malaysia, and Iran should be reached out to
garner more support for Kashmir cause beside OIC.
6. International court of justice must be knocked for highlighting human right
abuses in Kashmir.
7. A four-pronged (CPEC) strategy has been incorporated in foreign policy.
 C  Confronting
 P  pushing back against New Delhi’s intentions.
 E  Exposing India, deterring it through military preparedness.
 C  conflict resolution and confidence-building
And not being distracted by India’s actions and continuing with regional
integration projects through participation in the China-Pakistan Economic
Corridor, the Shanghai Cooperation Organisation, and the Economic
Cooperation Organisation.
8. Pakistan must be ready for any adventure by India. Responding every Brick with
stone can deter India. See, even Iran has stood up to American Bullying.

9. Pakistan must expose Indian unilateralism and brutality of India in held Kashmir to the
international community. Islamabad can also knock at the doors of OIC working group
of Kashmir, SCO, and EU. And African union. For Foreign Service of Pakistan, this case
is litmus test.

10. There is a need to take regional approach to the current crisis (FP
ingredient). It is high time ‘the dragon came in the room.’ China needs to take
bolder step than mere condemnation. She must help Pakistan’s efforts on all possible
fronts. Dialogue and multilateralism must take precedence over war and unilateralism.
Pakistan should also condition her support for US withdrawal from Afghanistan with
amicable solution of Kashmir Issue.

11. Pakistan incorporated BDS doctrine against India, in her strategy of

Kashmir.
 B  Boycott
 D  Disinvestment
 S  Sanction Movement by Pakistan

KIPS CSS/PMS
anjanjua.91@gmail.com Page 5
 Kashmir Issue Critical Analysis
With her allies and Kashmiri Diaspora to promote various forms of boycott to
delegitimize occupation and fulfill its obligation under International Law.

12. Kashmiris in India and Pakistan need to start non-violent ‘Million March’
towards working boundary. If the occupation had never been costlier for India, let’s
make it now. There is serious need to create diplomatic crisis through such means.
(KPL is an initiative in the right direction.)

13. There is need to unite resistance movement within Kashmir since New Delhi
has alienated the whole political SPECTRUM IN HELD Kashmir. Kashmir youth can lead
the resistance in a more profound way.

14. Arundhati Roy, the writer of “The ministry of Utmost Happiness” rightly said;
“One day Kashmir will make India self-destruct in the same way. You may
have blinded all of us, every one of us, with your guns by then. But you will
still have eyes to see what you have done to us. You’re not destroying us. You
are constructing us. It’s yourselves that you are destroying.”

 Solutions to Kashmir (as proposed by Pakistan and

in-line with FP)

A plethora of ideas has been proposed by Pakistan and also included in Foreign
policy and national strategy for Kashmir.

1. UN Resolutions the Plebiscite Option.

The UN Security Council resolutions of August 13, 1948 and January 005, 1949, (in
addition to resolution no 39 & 47) proposed the plebiscite option for resolving the
Kashmir dispute. However, it is important to note that Government of India itself
accepted plebiscite or referendum as a right of Kashmiri people when it filed initial
complaint against Pakistan before the United Nations on January 01, 1948. Prime
Minister Nehru also made the commitment to ‘The will of the Kashmiri people.’

KIPS CSS/PMS
anjanjua.91@gmail.com Page 6
 Kashmir Issue Critical Analysis
After its initial complaint, the UN Security Council passed the two important
resolutions (as stated above). These resolutions laid down the principles and
procedures for a free and impartial plebiscite under UN auspices. Broadly the
resolution of Jan 05, 1949 stated;
a. The question of accession of the State of Jammu and Kashmir to India and
Pakistan would be decided through the democratic method of a free and
impartial plebiscite after the cease-fire and truce agreement provided for in the
resolution of August 13 had been carried out.
b. The UNSC secretary general would nominate a plebiscite administrator, who
would be appointed by the government of Jammu and Kashmir and given
powers which he considers necessary for holding a free and impartial plebiscite.
c. On implementation of cease-fire and the truce agreement, the Commission and
Plebiscite Administrator would determine, in constitution with the Government of
India, the final disposal of Indian and state armed forces, as well as the forces in
Azad Kashmir (in consultation with local authorities).
d. Persons who had entered the state since August 15, 1947 would be required to
leave the state, and citizens of the state who had left the state on account of
disturbances would be allowed to return in.
 Both India and Pakistan accepted the above UN resolutions. However, later,
differences arose over the interpretation of various clauses of the resolutions,
especially on the issue of demilitarization/disarming of the ‘Azad Kashmir’ forces.
India gave its own interpretation to the agreement and suggested that the Azad
Kashmir forces be disbanded and the defense and administrative responsibility of
the region be given to India. Pakistan, on the other hand, was in favor of complete
and simultaneous withdrawal of armed forces personnel by both countries. On this
issue, the President of UN General McNaughton, in his proposal of December 22.
1949, in Para 2, clarified that the resolutions called for demilitarization of whole
state of Jammu and Kashmir and not merely Azad Kashmir.

 Regarding the question of Plebiscite, Pakistan was in favor of giving complete

authority to the UN for holding, organizing and supervising the plebiscite. India, on
the other hand, only wanted the non-binding advice of the UN. Various UN
mediators were appointed to resolve this issue, but no one was successful in
convincing India on a compromise.

KIPS CSS/PMS
anjanjua.91@gmail.com Page 7
 Kashmir Issue Critical Analysis
 Sir Owen Dixon, the UN mediator, in his report submitted in 1950 wrote; “In the
end I became convinced that India’s agreement would never be obtained to
demilitarization in any such form, or to provisions governing the period of plebiscite
of any such character, as would in my opinion, permit of the plebiscite being
conducted in conditions sufficiently guarding intimidation and other forms of
influence and abuse by which the freedom and fairness of the plebiscite might be
imperiled.

 It is on the record Pakistan supported all such international mediation and UN

efforts.

 Keeping in view the basic genesis and nature of the dispute, the option
incorporated in the then UN resolutions is still valid. The UN resolutions are not
time-barred, as observed in 1956, by the UN secretary General, Dag
Hammarskjold, who clarified the important principle, that ‘the UN decision is still
valid until it has been invalidated by the organ which took it.’

2. The UN Trusteeship Option.

 Generally, this option proposes that Kashmir should be placed under UN trusteeship
and then plebiscite may be held for the final resolution of this dispute. It is argued
that this will provide a face-saving for India, and will also give Kashmiris, on both
sides of the Line of Control, enough time to come up with a joint option. The JKLF
chairman, Amanullah Khan in December 1993, proposed:
I. Complete, simultaneous withdrawal of Indian and Pakistani troops and civil
administration, non-kashmiri personnel from Jammu and Kashmir.
II. The reunification of Indian and Pakistani-controlled parts of Kashmir.
III. Placement of the state under UN control for five to ten years.
IV. Holding of a plebiscite.

 As India regards Occupied Kashmir as its integral part, it is obvious that it

will never voluntarily agree to the placing of the state, or the Kashmir valley under
UN trusteeship. Secondly, both the above trusteeship options support the plebiscite
option under the UN auspices, an option that has been rejected by India even

KIPS CSS/PMS
anjanjua.91@gmail.com Page 8
 Kashmir Issue Critical Analysis
though in the early years of the dispute India committed itself to holding of the
plebiscite.

 According to article 76 of Chapter XII of the UN charter one of the basic

objectives of the trusteeship system is ‘to promote the political, economic,
social, and educational advancement of the inhabitants of the trust
territories, and their progressive development towards self-government or
independence, as may be appropriate to the particular circumstances of
each territory and its peoples.

3. The Independence Option.

 An option gradually evolved as a result of the impasse on the Kashmir issue is that
of independence generally known as the ‘Third Option’. Under this option, the pre-
Partition status of the Jammu and Kashmir State is to be restored and an
independent state established. The proposal is mainly advocated by the JKLF.

 Its Chairman, Amanullah Khan, in one of his articles says, ‘The future
independent Kashmir is to be neutral, like Switzerland, with friendly and trade
relations with all its neighbors.’

 According to Amanullah Khan’s proposal, ‘Independent Kashmir is to consist of

five federating units: Kashmir Valley, Jammu province, Ladakh, Azad
Kashmir and Gilgit Baltistan, each enjoying considerable internal autonomy,
having its own elected provincial government. At the centre there will be a
bicameral parliament.’

 He further says, ‘The re-unification and independence of the state can be

brought about without making any drastic changes in the existing socio-
economic, political and administrative structures of any of the present
three units i.e. Indian occupied areas, Azad Kashmir and Giligit-Baltistan.’

 According to Indian scholars ‘independence either for part or all of J&K, is equally
unrealistic. They maintain that although an artificial product of war, the Line of
Control does follow a rough and ready ethno-cultural divide in some measure.

KIPS CSS/PMS
anjanjua.91@gmail.com Page 9
 Kashmir Issue Critical Analysis
Further, “Self-determination” within two parts of J&K could result in the
Balkanization of a mosaic put together by history, with every new ‘self-determined’
minority being assailed for a newly-created majoritarianism, which lesser
minorities refuse to accept. Such an unraveling would be a recipe for strife,
insecurity, and destabilization of the region.

 As regards Pakistan, the ‘Third option’ can be advantageous. An independent

Jammu and Kashmir state would have a preference for good relations with a
neighbor that has consistently extended its support to the principles of self-
determination. Pakistan’s position on the ‘Third-option’ has been that it should not
confound the existent problems further, and, therefore, it stresses the need to
address the issue in the light of the Security Council Resolutions, as a first step in
the resolution of the dispute.

4. Andorra Model

Andorra was a unique co-principality (without any arbitrator), ruled by the French
chief of state and the Spanish Bishop of Urgel for 715 years. Through a
constitution, enacted in 1993, the government was transformed into a
parliamentary democracy with both French and Spanish heads of state jointly
wielding executive powers. When this solution was first proposed by Hurriyat
Conference (in 1974), President Musharraf supported it. However, all sections of
the Indian media termed this solution ‘Pandora’s Box’.

5. Sweden-Finland Aland Model

Swedish nationals in finland controlled the island. They wanted to unite it with
Sweden. But, Finland did not allow them to do so. With the league of Nations
appointed as an arbitrator in 1921, the Asland was given the status of an
autonomous territory, Finland retains nominal sovereignty over the island with
obligation to ensure linguistic rights (Swedish Language) as well as culture and
heritage of Aland residents. The island enjoys a neutral and demilitarized status
with its own flag, postage stamps and police force.

KIPS CSS/PMS
anjanjua.91@gmail.com Page 10
 Kashmir Issue Critical Analysis
On Dec 31, 1994, Aland joined the European Union voluntarily; Aland is a self-
governing entity, created without use of force, catering for the conflicting interests
of rival communities.

6. Italy-Austria South Tyrol Model

 South Tyrol was part of Austria. It was inhabited by three linguistic groups (70
percent Germans, 26 percent Italians, and 4 percent Laden). It was annexed by
Italy provided autonomy rebelled against Italianization. An agreement between
Austria and Italy provided an autonomy framework, vouchsafed by Paris Peace
Agreement, 1946 (also known as Gruber Degasperi Agreement). Under the Tyrol
Package of 1969, Austria exercised mandatory protective function vis-à-vis Italy
for the Austrian and Laden minorities in South Tyrol.

 The package was meant to pave for peaceful co-existence of German- and Laden-
speaking communities of South Tyrol, particularly in the multiethnic province of
Bolzano. The package collapsed and gave way to a settlement in 1992 with the UN
as the arbitrator.

 The revised package still recognizes Italian sovereignty but allows greater
autonomy of legislation and administration, recognition of cultural diversity,
minority vote on issues of fundamental importance, and proportional ethnic
representation.

7. National Conference Autonomy Formula (2001)

The formula return to 1953 position, abrogation of all central laws imposed on the
state, and an informal co-federal relationship between the parts of Kashmir.

KIPS CSS/PMS
anjanjua.91@gmail.com Page 11
 Kashmir Issue Critical Analysis
8. Chenab Formula

According to this formula the River Chenab will form the separation line between
free (Azad) and occupied parts of Kashmir. Some writers have discussed the Indus-
Basin-Based formula, akin to it.

9. Kashmir Study Group Formula

It envisages division of the state into two self-governing entities, enjoying free
access to one another. The entities would have their own democratic constitutions,
citizenship, flag, and legislature (minus defense matters jurisdiction). Defense
would be the joint responsibility of India and Pakistan.

10. Musharraf Formula

Extension of Bhutto-Swaran talks.

11. The Partition Option

 Regarding the option of the partition of Jammu and Kashmir, this has
largely been an academic debate and various scholars have suggested
different proposals. The first is a division-related option for Jammu and
Kashmir, based on the holding of regional plebiscites. This proposal was first given
by UN representative, Sir Owen Dixon, in his respect of 1950-51. Called the
‘Dixon report’, it proposed the idea of holding regional plebiscites, instead of a
general plebiscite as proposed the division of the state of Jammu and Kashmir
into four main regions: Jammu, Ladakh, the Vale of Kashmir including
Muzaffrabad, and Giligit-Baltistan.

 According to his plan the district of Poonch was to remain with Pakistan. He
proposed that of the four regions, Jammu and Ladakh should go uncontested to
India and the Northern Areas to Pakistan.

 He concluded that in the valley a plebiscite might be held to decide about its
future. Pakistan, did not out rightly reject the proposal, but was in favor of a
general plebiscite in the whole of Jammu and Kashmir. India on the other hand

KIPS CSS/PMS
anjanjua.91@gmail.com Page 12
 Kashmir Issue Critical Analysis
regarded Jammu and Kashmir as a unit of the Indian federation and thus was not
in favor of any regional plebiscite.

 The second proposal is an option based on a “Trieste-type” solution. The Trieste

issue, between Italy and Yugoslavia, arose as a result of the Two World Wars.
After World-War I, Trieste and the adjoining areas, including the whole valley of
the Adige river and Istria, went to Italy, but in 1945, it was claimed by Yugoslavia
on the grounds that Italy was guilty of aggression against Yugoslavia.

 However, Trieste and its environs and the Gorzia region to the Northwest (Zone
A) remained under Anglo-American control and the southern portion (Zone B) was
under the control of Yugoslavia troops.

 Finally, in 1954, Italy and Yugoslavia agreed to a partition and Zone A (including
Trieste) was given to Italy and Zone B to Yugoslavia. Italy agreed to maintain a
free port at Trieste. Later, the agreement was given a de jure status by the 1975
Treaty of Osimo between Italy and Yugoslavia.

 The ‘Trieste’-type option for Jammu and Kashmir proposes that the valley
along with some adjoining parts of Jammu and the Pakistani side of Kashmir
(Azad Kashmir), be made an autonomous units, under India and Pakistan,
respectively. The LoC would be a soft border between the two autonomous units.
The remaining areas on both sides of the LoC may be merged with India and
Pakistan, respectively. India and Pakistan would be required to withdraw their
forces under UN supervision.

 Again, this proposal lacks viability, as it does not address either the genesis of
the dispute, nor the complexities that have accumulated since then to date. The
struggle in Jammu and Kashmir is not for autonomy of any one region but for the
right of self-determination to be expressed by the Kashmiris, as granted to them
under UN resolutions. Also, India and Pakistan being parties to the dispute will
continue to have a clash of interests in the proposed autonomous regions;
therefore, this would certainly not result in any stability in the region. Moreover,
the option implies that the existing Line of Control (LoC) may serve as line of
division. The LoC remains the UN-recognized ceasefire-line (CFL) and was not

KIPS CSS/PMS
anjanjua.91@gmail.com Page 13
 Kashmir Issue Critical Analysis
drawn with any basis for serving as a permanent border, but with the intention of
bringing about cessation of military hostilities.

 Some western scholars have proposed the partition of Kashmir along

ethnic/cultural, religious, and linguistic lines. For example The Kashmir study
group, a US-based group comprising of diplomats and academics from various
countries as members, has made various proposals along these lines in its report
entitle Kashmir: A Way Forward (September 1999). The proposals suggested are
as follows.
 Two hypothetical sovereign entities, self-governing in all aspects,
established on both sides of the Line of Control on cultural and linguistic
grounds. According to the study, ‘on the Indian side the LoC every tahsil in
Kashmir proper and in Doda district in Jammu, and Gool Gulab Ghae tahsil in
Udhampur district in Jammu would seek incorporation in the proposed state.
All these areas are imbued with “Kashmiriyat” or interact with Kashmiri
speaking people. On the Pakistani side it is conceivable that the whole of
Azad Kashmir would opt to have a sovereign status. This predominantly
Punjabi-speaking, wholly Muslim area’.
 A new sovereign state on the Indian side of LoC with no territorial
exchange between India and Pakistan. The state would include ‘within its
maximum potential area the whole of Kashmir proper as well as adjoining
areas in which Kashmiri is either the majority language or that of a plurality
of the population;

 The above proposals are again not viable solutions, as they tend to
complicate the situation in Jammu and Kashmir and result in a further division of
the region, rather than leading to a stable solution. Moreover, the ‘Kashmir Study
Groups’ proposals make no provision for the right of self-determination of the
people of Kashmir to which presently a military struggle is underway by the
Kashmiris in Indian-occupied Kashmir.

 JURISDICTION OF ICJ ON KASHMIR:

KIPS CSS/PMS
anjanjua.91@gmail.com Page 14
 Kashmir Issue Critical Analysis
 Under article 93 of the UN charter, all member states are parties to the
“Statute of the ICJ”. Article 36(1) of the IVJ statute provides;

“the jurisdiction of the court comprises all cases which the parties refer to it and all
matters specially provided for in the charter of the United Nations or in treaties and
conventions in force.”

 It is clear that the ICJ does not have automatic or compulsory jurisdiction in any
matter. The statute clarifies that the ICJ can assume jurisdiction in the following
cases;
 When the parties refer a matter to it [Article 36(1)].
 Where it is specially provided for in the UN charter [Article 36(1)].
 Where two or more states are parties to a treaty or convention in force and such
treaty provides for disputes there under to be referred to and resolved by the ICJ
[Article 36(1)].
 Where a pre-UN treaty provides for reference of matter to a tribunal instituted by
the League of Nations or to Permanent Court of International Justice- the ICJ’s
predecessor court- the reference will lay, as between the parties to the present
statute, to the ICJ [Article 37].
 It can give an advisory opinion on any legal question at the request of the body
authorized in accordance with the UN charter [Article 65].
 Where the states have accepted as compulsory ipso facto and without special
agreement the ICJ’s jurisdiction [Article 36(2)].

 The declarations under Article 36(2) were anticipated to be the basis of much of the
ICJ’s work.

 Such declarations are required to be deposited with the UN secretary general who
‘shall transmit copies thereof to the parties to the statute and to the registrar of the
court’ [Article 36(4)].

 As many as 73 UN member states have accepted the ICJ’s compulsory

jurisdiction under Article 36(2) of the statute. India and Pakistan have both
filed declarations under Article 36 accepting the ICJ’s compulsory ipso facto
jurisdiction.

KIPS CSS/PMS
anjanjua.91@gmail.com Page 15
 Kashmir Issue Critical Analysis
The Indian declaration dated September 15, 1974 substituted its earlier
declaration of Sep 14, 1954.
 Pakistan’s declaration dated <arch 29, 2017 substituted its earlier declaration of
Sep 12, 1960.
 Left at that, it would seem possible for either Pakistan or India to take Kashmir
dispute to ICJ.
 But India failed its declarations, in 1974 and earlier, with the condition that its
acceptance of the ICJ’s jurisdiction excludes ‘disputes with government of any
state which is or has been a member of Commonwealth Nations’.
 This exclusion is enabled by Article 36(3) of the ICJ Statute: “The declarations
referred to above may be made unconditionally or on condition of reciprocity on
the part of several or certain states, or for a certain time.”
 India in its declaration, has thus excluded the competence of the ICJ to hear
disputes involving India with another member of the Commonwealth. To
preclude any action by Pakistan to confer jurisdiction on the ICJ in the
Kashmir dispute by leaving the Commonwealth, India added in its
conditions of acceptance of the ICJ’s compulsory jurisdiction that such
acceptance excludes disputes with another member “which is or has been a
member” of the Commonwealth. This completely ousts the ICJ’s jurisdiction
under India’s declaration.

 The restrictive and almost self-serving declaration of India under Article 36

is by no means unique or unusual. Many declarations by states exclude the
ICJ’s jurisdictions in ways that the declarations are generally ineffective
against the declaring state.

 Pakistan’s declaration has many conditions for the acceptance of the ICJ’s
jurisdiction, including the ouster of disputes that relate to the “National
security of Pakistan” or that fall essentially within Pakistan’s domestic
jurisdiction.

 However, the most notorious example is the US declaration by its then president
Harry S. Truman on August 14, 1946, which, among others, in a self-judging
provision excludes the ICJ’s jurisdiction matters which are essentially “within the
domestic jurisdiction of the United States of America as determined by the UNS”.

KIPS CSS/PMS
anjanjua.91@gmail.com Page 16
 Kashmir Issue Critical Analysis
Trump administration also announced to re-evaluate of further restrict the ICJ’s
jurisdiction.

 The above analysis shows that Pakistan may not be able to invoke the ICJ’s
jurisdiction in the Kashmir dispute in view of the conditions imposed by India as
enabled by Article 36(3) if the ICJ statute.

KIPS CSS/PMS
anjanjua.91@gmail.com Page 17
 Kashmir Issue Critical Analysis
 AT long last, the final report of Kashmir’s three-member delimitation commission is
out. The commission was appointed two years ago, and its report is based on the
2011 census figure of 12.5 million residents in Jammu & Kashmir. Published last
week, on May 5, it holds absolutely no surprises. Indeed, this handpicked body has
fully lived up to the expectations of those who appointed it.
 The delimitation commission has allocated 43 seats to the Hindu-majority region of
Jammu, and 47 to Muslim-majority Kashmir, increasing the total strength of seats to
90 from 83 but reducing Kashmiri representation by giving six seats to Jammu and
adding only one to the Muslim-majority area.
 According to the Hindustan Times, “For the first time, the panel reserved nine seats
for scheduled tribes … reorganized some Lok Sabha constituencies while keeping
their total number at five, renamed some assembly constituencies, and redrew some
others. All Lok Sabha constituencies now comprise 18 assembly segments each. It
also recommended that members be nominated from Kashmiri migrant communities,
which primarily comprise Kashmiri Pandits who were displaced at the peak of
militancy in the region in the 1990s. ‘It is ensured by the commission that every
assembly constituency shall be contained entirely in one district and the lowest
administrative units i.e. Patwar circles (and wards in Jammu Municipal Corporation)
were not broken and were kept in a single assembly constituency,’ the panel said.”
Modi has torn apart the fig leaf that Nehru had devised.
 Prime Minister Narendra Modi and his deputy home minister, Amit Shah, repeatedly
declared that elections to Kashmir’s assembly will be held only after the publication
and implementation of the delimitation commission’s report. The commission has
fulfilled the expectations of the prime minister and his deputy by increasing Jammu’s
leverage. By purchasing the loyalties of some members of the assembly in Srinagar
— and they are easily identifiable — Jammu will acquire a majority in the legislature.
 The forthcoming developments will then fulfill Narendra Modi’s plan — a Hindu chief
minister in Muslim-majority Kashmir — and thus complete the vicious process that
was begun on Aug 5, 2019, to deprive the Kashmiris of their identity. It was on that
date that Kashmir was robbed of its autonomy and the 71-year-old Hindutva plan of
repealing Article 370 of India’s constitution was fulfilled.
 In fact, it was Jawaharlal Nehru who had first started the process of the erosion of
Kashmir’s autonomy once he had ousted Sheikh Mohammed Abdullah from the seat
of premiership on Aug 8, 1953, and put the Kashmiri leader in prison for 11 long
years — all in breach of his promises to the Kashmir people. Modi has torn apart the
fig leaf that Nehru had devised.

KIPS CSS/PMS
anjanjua.91@gmail.com Page 18
 Kashmir Issue Critical Analysis
 The latest delimitation report has not gone down well with political parties. The
Communist Party of India (Marxist) said, “The recommendations of the J&K
Delimitation Commission are blatantly unjustified and illogical.” It said that the
commission’s recommendations were “clearly politically motivated aimed at changing
the demographic character and composition of J&K. These recommendations must
therefore be rejected”. The party pointed out the disproportionate balance of six
seats for Jammu and only one for the Kashmir Valley. “With 44 per cent of the
population, Jammu will have 48 per cent of seats while Kashmir with 56 per cent of
population will have only 52 per cent of the seats,” it said. New Delhi’s designs are
very clear.
 Significantly, all the major political parties of Kashmir have rejected the report of the
Delimitation Commission. This is utterly unprecedented. Elections will now be held in
these constituencies and the boundaries drawn accordingly. New Delhi’s well-known
paid agents among Kashmiris politicians have preferred to keep silent rather than
voice support for their paymasters in New Delhi.
 The rejection by political parties was expressed in a joint statement in trenchant
terms from the platform of the All Parties United Morcha that was formed following
the recommendations. “Senior leaders of main opposition parties have jointly
rejected the final report, which is highly partisan, motivated and against all basic
norms of delimitation like contiguity, connectivity, population, physical features and
public convenience and aspirations of the people of different areas.” The members of
the commission had ignored the ground realities.
 These parties are, however, in a bind. If they boycott the elections held under the
report, they leave the field open to New Delhi’s hirelings. If they contest, they give
legitimacy to the bogus report of the bogus delimitation commission. But the worst is
yet to come as in all of India; there is a determined effort to muzzle the opposition.

 An imperfect world. An imperfect legal system.

--------The End-------

KIPS CSS/PMS
anjanjua.91@gmail.com Page 19