UNDERSTANDING LEGAL ASPECTS OF THE KASHMIR DISPUTE

UNDERSTANDING LEGAL ASPECTS OF THE KASHMIR DISPUTE

Kamran Adil

“To see an opportunity, we must be open to all thoughts.” — Catherine Pulsifer

Introduction

Hitherto, Kashmir was discoursed mostly in political, militaristic and strategic terms; the latest, legal engineering by India has, however, carved out an opportunity for the policymakers in Pakistan to, inter alia, understand and explore legal avenues related to this long-standing dispute in the context of conflict-resolution and conflict-management. The instant article is, therefore, an attempt to examine the legal aspects of the Kashmir Dispute; the examination so carried out will help broaden the understanding, which can, contribute to a more nuanced analysis of the facts thrown by the new situation. The carte du jour of the legal aspects is worth poring and is enumerated hereunder:

1. Legal Engineering by India

India has long taken pride in its constitutionalism, which has been subjected to legal engineering by its ruling party, i.e. BJP. By tolerating two Presidential Orders and by passing one Act of the Parliament, the Indian Parliament witnessed legal engineering sans legality and legitimacy. The two Presidential Orders, which were apparently issued under clauses (1) and (3) of Article 370 of the Indian Constitution, did not fulfil the legal requirement(s); the Presidential Orders were illegal and illegitimate as they were in breach of the so-called Instrument of Accession that the very Indian Constitution had endorsed by acknowledging in its black letter and in form as the Constituent Assembly that was to provide concurrence for such order was not in existence. The two Presidential Orders, which were primarily of executive nature, were used to ‘cease’ the operation of constitutional provisions; the architecture of upending the constitutional legislation through executive orders without fulfilling the preconditions for using such power is blatantly unconstitutional. The edifice of the legal engineering was then garnished by the Jammu and Kashmir Reorganization Act, 2019, that, in suppression to all the legal obligations under the so-called Instrument of Accession and contrary to constitutional safeguards inbuilt in the Constitution of India, provided for division of the disputed territory of Indian-Occupied Kashmir (IOK) into two union territories to be controlled by the Central Government. As a consequence of the legal tinkering, Article 35-A, that was a constitutional guarantee for preserving the demography of the IOK was stated to have come to cease. This legalese punctuated by political considerations and backed by imposition of curfew and severing of communications in the IOK has provided the opacity to the issue. Popularly, the media reported legal engineering as ‘revocation’, whereas, legally it was ‘cessation of operation’ of the constitutional provisions; it was wrongly projected as ‘revocation’ to evince the factum of legal fiddling as a ‘fait accompli’. Constitutionally, Article 370 is still part of the Indian Constitution as the two Presidential Orders are pegged into it; conversely, if it is insisted that the constitutional provision of Article 370 stands revoked, then, the Presidential Orders will become non est. as their foundation will be lost. The challenge to constitutionalism was not welcomed by the civil society of India, which challenged many an action by the government and the very constitutionality of the acts has been challenged in the Supreme Court of India on the basis of its inconsistency with the constitutional fundamental rights and on the touchstone of the basic structure doctrine enunciated by the Supreme Court of India in Kesavananda Bharti Case and on the basis of earlier judgements of the Supreme Court of India.

2. Internal Issue of India

India has claimed that the matter is its ‘internal’ issue. The statement is far from true. It is an established fact that the Kashmir Dispute is not a matter of municipal law. The UN Resolutions, international agreements, e.g. Tashkent Agreement, 1966 and Simla Agreement, 1972, and China’s claim to Aksai Chin all contradict the stance of the Indian government.

3. International Human Rights Law

The study of international human rights is an emerging area of international law. Many human rights, which are internationally recognized and India as a state has undertaken to grant them, are in jeopardy in IOK. On the invitation of India, the then UN Reporter on Freedom of Religion or Belief, Ms. Asma Jahangir, submitted a detailed report to the Human Rights Council, in which, she documented human rights violations related to right to freedom of belief in IOK. While the West is pressing the cause of international human rights in Hong Kong aggressively, there is a good reason and cause for Pakistan to highlight the international human rights violations in IOK worldwide. The Human Rights Council’s platform can be used very effectively. Justice Ali Nawaz Chohan, who was lately Chairman of the National Human Right Commission of Pakistan (NCHR Pakistan) has argued that a diligent case can be fought for Kashmiris by utilizing the available fora for propagation and enforcement of international human rights. The NCHR have statutory and institutional existence and have been provided institutional platforms where effective representation of Pakistan can internationalize the violations of the international human rights law by India. The scope of international human rights law is very broad and may help Pakistan project case of Kashmiris forcefully in the EU as well as the UN. The content of the international human rights law is based on the international treaties like the International Covenant on Civil and Political Rights, 1966, the International Covenant on Economic, Social and Cultural Rights, 1966, the Convention on the Elimination of All Forms of Racial Discrimination, 1969, the United Nations Convention Against Torture, 1984, the Convention on the Rights of the Child, 1989 and the International Convention for the Protection of All Persons from Enforced Disappearance, 2006. In this regard, the Ministry of Law and Justice, the Ministry of Foreign Affairs and the Ministry of Human Rights have to collaborate along with the autonomous National Human Rights Commission of Pakistan.

4. Right of Self-determination

The case of IOK rests on the right of self-determination. This inalienable right is intertwined with the right to self-govern and is fully protected under the UN Charter. The basis of the United Nations Security Council resolutions is the right of self-determination. Pakistan needs to craft, inter alia, its stance in and around the right of self-determination as the subsequent machinations of UN-supervised plebiscite has this principle at its heart. The right of self-determination was also the principal reason behind preserving the identity and demography of the peoples of Jammu and Kashmir by the Indian Constitution.

5. FATF and Non-State Actors

The Financial Action Task Force (FATF), a proxy of the G-7 (West’s economic bloc), has been putting pressure on Pakistan since 2016 for indubitable compliance to its recommendations. Its dragnet is all-encompassing and is applying the principles and methods evolved to deal with money laundering into the counter-terrorism financing scheme. With Pakistan’s economic problems increasing, it has introduced scores of initiatives that have potential of drying up the material support for indigenous Kashmiri struggle. The role of non-state actors in the IOK will be limited without material support, which is being checked by the FATF. The FATF is not part of the UN system, but due to its linkages with the West, it is reflected in the United Nations Security Council resolutions. The connection of the FATF and the UNSC is very vital and has enabled the executive of Pakistan to implement the UNSC resolutions under the United Nations (Security Council) Act, 1948. By invoking the delegated authority under the Act, the Ministry of Foreign Affairs has issued guidelines for implementation of FATF and UNSC resolutions. The FATF is also linked with international legal obligations that Pakistan has undertaken to implement especially with regard to United Nations Security Council resolutions.

6. Occupation to Annexation

Another fact that must be noted is that the legal status of the territory of the disputed Kashmir cannot be recognized by any state as the territory was under occupation, and is now being annexed by changing its legal character. Under the international law, the facts prevailing in the IOK before 5^th August, 2019, showed that India was an Occupying Power in terms of Fourth Geneva Convention, 1949. The facts of the IOK were very similar to Palestinian Territory, therefore, the legal conditions prevailing in Palestine, had usually been compared with the IOK. The International Court of Justice (ICJ) rendered an advisory opinion on the construction of wall on the Palestinian Territory (Wall Advisory Opinion) and held that Israel was an Occupying Power within the meaning of the Fourth Geneva Convention read with Hague Convention, 1907 that enjoyed power of customary international law. By analogy, the IOK was considered an occupied territory as the Instrument of Accession on which India relied for its claim was not acquired in accordance with the UNSC resolutions. In addition to occupation of IOK, in the post 5^th August 2019 scenario, the legal status of the IOK is that of an annexed territory as India has tried to alter its legal status.

7. Approaching the International Court of Justice

One of the options that remained under consideration is to take the matter to the ICJ. Two things must be considered for taking any case to the ICJ: first, the question of jurisdiction; two, the question of breach of international law. In the instant case, Dr Pervez Hassan, an international environmental lawyer of considerable standing, has noted that due to jurisdiction ouster declaration clause advanced by India, the ICJ is not likely to assume jurisdiction in the case. As for the breach of international law requirement is concerned, the human rights violations and breach of treaties are being considered. This option, however, at best is very tenuous.

8. UN Trusteeship Council

Dr Moonis Ahmer, an eminent professor of international relations, has toyed with the idea of placing Kashmir under the supervisory and administrative control of the UN Trusteeship Council. He has argued that Trusteeship Council is a permanent organ of the United Nations. Although it is non-functional, it is extant and has not been disbanded. The UN Charter clearly provides its mandate and it can be entrusted with the supervision and administration of the IOK for next ten years. The solution may be legally viable, but has little likelihood as it needs an agreement between the states that want to place the territory Trusteeship Council’s disposal. For Pakistan, it also means agreeing to put the AJK within the scope of the trusteeship agreement. For making such solution workable, the UN Security Council will have to play a very active and constructive role and it might also require placement of UN peacekeeping forces and redefining the Line of Control (LoC).

9. International Humanitarian Law

The International Humanitarian Law (IHL) is the law applicable in the time of war. It has two components: the Geneva Law that provides for protection of persons, objects and property; and the Hague Law that provides for means and methods of warfare. In the realm of the Geneva Law, the Common Article 3 that provides for protection of all persons, property and objects must be followed by India and Pakistan. In addition, India is duty-bound as an Occupying Power not to alter the legal character of IOK. Within the realm of Hague Law, the principles of proportionality, necessity and non-use of prohibited means and methods of warfare must be followed by both India and Pakistan. India is likely to use ethnic cleansing and genocide as a method of war and the world must not let it do so as it will make the region unstable. The use of nuclear weapons, according to the Advisory Opinion of the ICJ, is not inconsistent with the IHL, but the use of nuclear, chemical and biological weapons against Kashmiri populace must be avoided by India.

10. Role of the ICRC

Statutes of the International Committee of the Red Cross (ICRC) provide for its duties. One of its responsibilities is to maintain its neutrality and to provide aid to the civilian and military victims in a conflict. The role must be discharged vigorously and India and Pakistan should extend all the assistance to the ICRC, which is a neutral organization established to work to alleviate the sufferings in an armed conflict.