Kashmir Issue: Critical Analysis 2

26-10-1947

Maharaja Hari Singh writes the Letter of Accession to Lord Mountbatten:

I shriman Maharaja Hari Singh Ruler of Jammu and Kashmir State in the exercise of
Sovereignty in and over my said State do hereby execute this my instrument of Accession and
I hereby declare that I accede to the Dominion of India with the intent that the Governor
General of India, Dominion legislature, the federal court and any other dominion authority
established for this purpose of the dominion shall by virtue to this my instrument of
accession…

 Doesn’t mention maharaja has taken permission from the people

 Doesn’t mention about the people of people of Kashmir, the population

In response to this on 27th October, 1947, Lord Mountbatten writes the letter:

My dear Maharaja Sahib,

Your highness letter dated 26th October has been delivered by Mr. V P Menon. In the special
circumstances mentioned by your highness, my government has decided to accept the
accession of Kashmir State to the Dominion of India.
In consistence with their policy that in case of any state, where the issue of accession has
been a subject of dispute, the question of accession should be decided with the wishes of the
people. It is my Government's wish that as soon as law and order have been restored in
Jammu and Kashmir and her soil cleared of the invader the question of the State's accession
should be settled by a reference to the people….

 This letter makes the accession conditional.

 Lord Mountbatten's remark and the offer made by the Government of India to conduct a
plebiscite or referendum to determine the future status of Kashmir led to a dispute between
India and Pakistan regarding the legality of the accession of Jammu and Kashmir to India.
 India claims that the accession is unconditional and final while Pakistan maintains that the
accession is fraudulent.
 The accession to India is celebrated on Accession Day, which is held annually on 26 October.

ISSUE:
Historians are divided, they argue the date of the signing of the accession document by Hari
Singh, 26th October, 1947 in Srinagar, it reaches Delhi, received by Lord Mountbatten, he
responds to it and the reply is received by Hari Singh on 27th October.

 Then there is a legal issue when India takes the matter to the Security Council under chapter
6 of the UN Charter.
 On the Agenda of the UN Security Council, the title of the question is “The India Pakistan
Question”.

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 Several years later India argues that it is a wrong title; it was not the dispute between 2
states. India further argues that it went to the Security Council complaining about the
invaders and the SC has by default alleviated the dispute as a dispute between 2 states, but
by the time it was 2 late.
 Indian authors are critical of this move by the Indian Authorities that India shouldn’t have
taken the matter to the SC and the SC according to its legal mechanism stated it as a dispute.

UNSC Resolutions: (Many resolutions passed from 1948 to late 1950s)

UNSC Resolution 39 (January 20, 1948, Creating UNCIP)

 This resolution offered to assist in the peaceful resolution of the Kashmir Conflict by setting up
a commission of three members; one to be chosen by India, one to be chosen by Pakistan and
the third to be chosen by the other two members of the commission. The commission was to
write a joint letter advising the Security Council on what course of action would be best to
help further peace in the region.
 The commission was to "investigate the facts" and to "carry out directions" given by the
Security Council. The investigations were to address the allegations made by India in its letter
of 1 January 1948, regarding the situation in Jammu and Kashmir.

Issues raised by Pakistan

The Pakistani allegations were wide-ranging: that India was attempting to undo the
partition of India, that it was carrying out a campaign of 'genocide' against Muslims in East
Punjab, Delhi and other areas, that it forcefully and unlawfully occupied Junagadh, that it
obtained the accession of Jammu and Kashmir by 'fraud and violence', that it threatened
Pakistan with direct military attack.

Then other resolutions were passed and in 1 such resolution, the framework of conducting the
plebiscite was discussed.

Resolution of SC, 21st April 1948 (Resolution 47)

 In the first step, Pakistan was asked to use its "best endeavours" to secure the withdrawal of
all tribesmen and Pakistani nationals, putting an end to the fighting in the state.
 In the second step, India was asked to "progressively reduce" its forces to the minimum level
required for keeping law and order. It laid down principles that India should follow in
administering law and order in consultation with the Commission, using local personnel as far
as possible.
 In the third step, India was asked to ensure that all the major political parties were invited to
participate in the state government at the ministerial level, essentially forming a coalition
cabinet. India should then appoint a Plebiscite Administrator nominated by the United Nations,
who would have a range of powers including powers to deal with the two countries and ensure
a free and impartial plebiscite. Measures were to be taken to ensure the return of refugees,
the release of all political prisoners, and for political freedom.

The Security Council refrained from taking sides in the dispute. It did not condemn Pakistan
as the aggressor, as India had requested. Neither did it touch upon the legalities of the

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accession of Jammu and Kashmir. Korbel states that the Security Council could have
requested the International Court of Justice to give an advisory opinion on the legal issues.
Had that been done, the Security Council would have been in a stronger position to declare
one of the parties to be in the wrong, and the handling of the dispute would have been easier.
So, the plebiscite was the obligation on India, enabling the plebiscite. The withdrawal never
took place. The plebiscite couldn’t be conducted.

The UN Secretary General also sent some representatives to Kashmir, who gave suggestions
on how to implement the resolution, but it failed to be implemented.
 India changed its political strategy and established a “constituent assembly” in Indian held
Kashmir. They were presented by the document of accession and were told to ratify it. The
constituent assembly ratified it.
 Indian authorities argued that Lord Mountbatten’s letter and Pundit Nehru also wanted to
make an assessment on the wishes of the people of Kashmir and we have made that
assessment through the constituent assembly, which are the representatives of the people of
Kashmir, so the assessment is complete. So because the accession is ratified now UN
resolution of plebiscite is not needed.
 UN not only rejected it but passed resolution as well:

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Resolution 91

“Affirming that the convening of the constituent assembly as recommended by the General
Assembly of the “All Jammu and Kashmir National Conference” and any action the assembly
might attempt to take to determine the future shape and affiliation of the entire state or any
part thereof would not constitute the disposition of the state in accordance with the above
principle”.

 UNSC says anything a part form plebiscite will not be accepted. India abstained from voting.

 UNSC again passed a resolution on 24th January 1957 (122).

It says: Reaffirms the affirmation in its resolution 91 and declares “convening of the
constituent assembly as recommended by the General Assembly of the “All Jammu and
Kashmir National Conference” and any action the assembly might attempt to take to
determine the future shape and affiliation of the entire state or any part thereof would not
constitute the disposition of the state in accordance with the above principle”.

These 2 resolutions demolished the most important argument of India that yes “Affirmation
was taken”. Instead of plebiscite we are doing it through the constituent assembly.

Significance of UN Resolutions:

 The resolutions passed on Kashmir from 1947 to 1957 cannot be termed as recommendatory
only. What we need to be clear about is that, in its initial years, the practice of the UNSC was
not to mention the title of the chapter under which it was passing the resolution. During this
time, it was the content and the substance of the resolution that would determine the nature
of implementation.

 If one looks at the UNSC’s practice in its first decade of existence, only a handful of
resolutions mention the title of the chapter, whereas the majority of resolutions that were
acted upon by the member states did not mention any reference to a chapter of the UN
Charter. The states’ practice seemed to be that the nature of recommendations and measures
suggested or decided by the UNSC would be determinative of the chapter or chapters under
which the resolution was passed.

 The resolutions of UNSC passed in respect of the Kashmir dispute belong to this era of UNSC
practice. Hence one finds that, in the resolutions passed by the UNSC during 1947 to 1957 on
the Kashmir dispute, none makes a specific reference to the chapter under which it was
passed. With this background, to assume that all resolutions relating to the Kashmir dispute
were passed under Chapter VI would be an incorrect conclusion to draw. After all, there is no
reference to either Chapter VI or Chapter VII in any of the resolutions.

 Most of the resolutions passed on the subject of the Kashmir dispute provide for very specific
steps to be taken by both India and Pakistan. For example, UNSC Resolution 47 (adopted on
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April 21, 1948) spans over four pages. It refers to the earlier Resolution 39 (adopted on Jan
20, 1948) whereby the UN Commission for India and Pakistan (UNCIP) was established and
authorized to investigate the dispute of the facts submitted for resolution to the UNSC.

 The setting up of an independent body by the UNSC is a specific step that was acted upon,
and it is not possible to imagine a resolution that establishes a standalone body be viewed as
being only recommendatory in character. In Resolution 47, the mandate of UNCIP was
extended and additional powers were conferred on it. A clear and elaborate programme was
laid down for the activities of the commission. The resolution also addresses the governments
of India and Pakistan, and directed progressive demilitarization. It also called for the
establishment of a provisional government. The resolution is very minute in its details and
passed with a clear intention of leaving no specifics out. The nature, intendment and
impeccability of the resolution lead ineluctably to the conclusion that it was meant to be
implemented by both states.

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 It will be defying logic to assume that the UNSC resolution establishing UNCIP (which, further
exercising delegated powers, passed a resolution on Nov 9, 1948, having three parts dealing
with the ceasefire line) is merely recommendatory — when the same has been acted upon!
This resolution led to the Cease-Fire Line Agreement (Karachi Agreement 1949). These later
developments confirm that the resolutions were binding in nature and were operationalised in
a manner that could only be imputed to binding resolutions.

 Another way of confirming their mandatory nature is to view these resolutions as decisions of
the UNSC. The relevant portions of the said resolutions were binding on India and Pakistan
under Article 25 of the UN Charter which provides as follows, “The members of the United
Nations agree to accept and carry out the decisions of the Security Council in accordance with
the present Charter”. The ICJ in its Namibian Advisory Opinion also supported the position
that a UNSC resolution would be binding where the language, discussion preceding the
passage of the resolution, and the provisions of the UN Charter referred to in the resolution
indicated that it was binding. Based on the ICJ’s opinion, to view resolutions on Kashmir as
being merely recommendatory places an unnecessarily restrictive interpretation that is belied
by the specific nature of measures which have been decided in these various resolutions on
Kashmir.

 It may be highlighted that the UNSC has now changed its practice and specifically mentions
the chapter pursuant to which it is passing or adopting the resolution. For example, UNSC
Resolution 1373 of 2001 relating to terrorism mentions Chapter VII just before the operative
paragraphs. Likewise, Resolution 1267 of 1999 relating to Al Qaeda and the Taliban mentions
in its preamble a similar reference. Further, Resolution 1540 of 2004 addressing the issue of
non-proliferation makes it a point to state that it is acting under Chapter VII of the UN
Charter. But this is a more recent trend, which was not the case in the practice of the UNSC
while passing resolutions during the first few years after 1945.

 Based on the above, the resolutions passed in the case of Kashmir have a binding character
and cannot be referred to as exclusively recommendatory in nature. Pakistan should approach
the UN with absolute confidence that it remains the responsibility of the UNSC to implement
its binding resolutions. Whether Pakistan has the political clout to have the resolutions
enforced remains another matter, but from a legal point of view Pakistan’s policymakers
should be clear among themselves that the UNSC resolutions on the Kashmir dispute should
not be de-emphasized on the grounds that they are simply recommendatory.

Pundit Nehru’s speech:

 In a broadcast to the Indian nation on November 2, 1947, independent India’s first Prime
Minister, Pandit Jawaharlal Nehru, said,
“Let me make it clear that it has been our policy all along that where there is a dispute about
the accession of a State to either Dominion, the decision must be made by the people of the
State. It was in accordance with this policy that we added a proviso to the Instrument of
Accession of Kashmir.” – (White Paper on Jammu and Kashmir, p. 45)
 In his broadcast on All India Radio, the Indian Prime Minister also said,

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“We have declared that the fate of Kashmir ultimately has to be decided by the people. That
pledge we have given, and the Maharaja (Maharaja Hari Singh) has supported it, not only to
the people of Kashmir but to the world. We will not, and cannot, back out of it.”
 Prior to this, Nehru had assured the Prime Minister of Pakistan, Liaquat Ali Khan, on October
31, 1947, that India’s pledge to hold a plebiscite in Kashmir on whether it should accede to
India or Pakistan “is not merely a pledge to your government but also to the people of
Kashmir and to the world.”

New development on Kashmir Dispute:

 With the scrapping of Article 370 through a Presidential decree, it is now quite clear that
Indian answer to Kashmir question is simply to ‘colonize’ it. Inspired by their friends in Tel
Aviv, Narendra Modi and Amit shah are hell bent on ‘divide and annex policy’ in Kashmir. Such
a gruesome tale of BJP even puts ‘Fourth Reich of Nazi Germany’ to shame. For, repealing
Article 35-A is clearly a brazen daylight robbery. As Hindutva-driven BJP wants Kashmir not
Kashmiris, the stage is set for building a new ‘West Bank’ in Srinagar, a ghettoized ‘Gaza’ and
‘open sky prison’ in Jammu and Kashmir Valley, ‘settler colonialism’ in Ladakh’ and potentially
‘holocaust’ of generation of Kashmiris at the hands of fascist forces of Hindutva. It will have
serious consequences on the region and beyond.

Context
 August 5th will not only be marked as shameful day for so called ‘biggest democracy in the
world’ but will also be recorded as glaring example of the tyranny of majority that sealed the
fate of 13 million Kashmiris without their consent. The move came after India increased 35
thousand troops in Kashmir (more than half a million already present there), hastily ordered
Yatris to leave the valley, locked Kashmiris, started military and air force built on Pakistan’s
border and intensified ceasefire violations on Line of control. It was a calculated move to
demonstrate the willingness of BJP to deliver what it promised in election, in order to rally
Hindu vote bank. The move also manifested the Modi’s ‘final solution’ to ‘Kashmir
problem’.
 The move was celebrated by far-right followers and Islamophobes in India, mourned by
Kashmiris across the political spectrum and condemned by Pakistan, China, International
Commission of Justice (ICJ) and sane voices within India and international community.

Analysis of article 370

 The article was enacted in 1949 as the basis of relations between India and disputed state of
Kashmir. Under the article, India could exercise powers in four matters: finance, defence,
communication and foreign policy. It also allowed Kashmir a separate flag and authority to
make and enact different laws-related to property and citizenship to Kashmiri people- from
the rest of Indian Union.
 Such type of arrangement in India was not exclusive to Kashmir but is present in 28 other
such territories.
 Its repeal gives India greater control of Kashmir: land, people and resources.

Analysis of Article 35-A

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 It was introduced through a presidential order in 1954 and forbade outsiders to settle, buy
land, hold local government jobs or win educational scholarship or marry in Kashmir. Often
referred to as the Permanent residential law, it was first put in place by Mahraja Hari Singh in
1927 to bring demographic changes in Kashmir to a halt and leave ‘Kashmir for Kashmiris.’
 Rolling it back was always on the cards of BJP since it’s making in 1953.infact it has been the
first line of their manifesto. Landslide victory in 2019 elections, Moditva (personality cult of
Modi), anti-Muslim, anti-Pakistan and anti-Kashmiri sentiment and attempt to garner more
support of Hindutva brigades led to the final reversal of articles.

Legal Issues

 The Presidential Order draws its authority from Article 370 (1). Article 370 (1) deals with the
power of the Parliament to make laws for the State of Jammu and Kashmir. It does not
provide the President the power to amend sundry provisions of the Constitution. An
amendment to the Constitution can only be made under Article 368. It requires a 2/3rd
majority of Parliament, present and voting. This has not been attempted, and leaves the
legality of the Presidential Order in serious doubt.

 Further, assuming that the President did indeed have the power to pass the order under
Article 370 (1), the same could only have done with the concurrence of the State
Government. In fact, the order itself begins by saying that it has been made “in exercise of
powers conferred by clause (1) of Article 370 of the Constitution, the President with
concurrence of the Government of State of Jammu and Kashmir”.

 Jammu and Kashmir has not had a government for months. Instead of consulting the
government, the President has consulted the governor. As is well-known, the governor is the
representative of the Union Government in the State. So in effect, the Union Government has
consulted itself. It is hard to see how this is legal.

 According to A.G. Noorani, “This move is a violation of the procedure in any case and can be
challenged by the Supreme Court. Article 370 can only be managed by the government of
Jammu and Kashmir. So, this Parliament cannot abrogate it. This is what the law says.”

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 Others believe that the provision that allows Article 370 to be altered by presidential order
requires the consent of the constituent assembly of Jammu and Kashmir and is therefore void
because the assembly was dissolved in 1956.

 It is also said that a challenge could be brought to the Supreme Court, which would likely
reject the presidential order.

Jurisdiction of ICJ on Kashmir

 Under Article 93 of the UN Charter, all member states are parties to the “Statute of the ICJ”.
Article 36(1) of the ICJ 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 thereunder to be referred to and resolved by the ICJ [Article 36(1)];

 where a pre-UN treaty provides for reference of a matter to a tribunal instituted by the
League of Nations or to the Permanent Court of International Justice (PCIJ) — the ICJ’s
‘predecessor’ court — the reference will lie, 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 a body authorised 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 last category requires further elaboration. Article 36(2) of the statute enables states to
declare that they accept the ICJ’s compulsory and automatic (ipso facto) jurisdiction in legal
disputes involving treaties and questions of international law: “The states parties to the
present statute may at any time declare that they recognize as compulsory ipso facto and
without special agreement, in relation to any other state accepting the same obligation, the
jurisdiction of the court in all legal disputes concerning: the

 interpretation of a treaty;

 any question of international law;

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 the existence of any fact which, if established, would constitute a breach of an international
obligation;

 The nature or extent of the reparation to be made for the breach of an international
obligation.”

 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)].

 Article 36(5) enables the continuation of declarations made under the earlier Article 36 of the
PCIJ Statute that are still in force for the ICJ’s compulsory jurisdiction.

 And, Article 36(6) addresses the ICJ’s competence to decide disputes of jurisdiction: “In the
event of a dispute as to whether the court has jurisdiction, the matter shall be settled by the
decision of the court.”

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 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. The Indian declaration dated Sept 15,
1974 substituted its earlier declaration of Sept 14, 1959. Pakistan’s declaration dated March
29, 2017 substituted its earlier declaration of Sept 12, 1960. Left at that, it would seem
possible for either Pakistan or India to take the Kashmir dispute to the ICJ. But India filed 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 the
Commonwealth of 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 jurisdiction in ways that the
declarations are generally ineffective against the declarant 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 Aug 14, 1946, which, among others, in a self-judging provision
excludes the ICJ’s jurisdiction in matters which are essentially “within the domestic jurisdiction
of the United States of America as determined by the United States of America”. The Trump
administration recently, in 2018, announced plans to re-evaluate (read further restrict) the US
role before the ICJ.

 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) of the
ICJ Statute.

 An imperfect world. An imperfect international legal system.

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