Islamabad - On 15th August, 1947, the suzerainty of the British lapsed and Jammu and Kashmir became an independent state. Moreover, the partition of the subcontinent gave states located therein political and legal freedom to accede to either of the dominions - India or Pakistan – however, the wishes of the people, geographical contiguity, and composition of population were to be kept in mind.

It is pertinent to recall that Jammu and Kashmir did not accede to ‘British India’ under the government of India Act 1935, which made provision for accession of Indian states to British India.

Following partition, disturbances broke out and on 25th October, 1947, the Maharaja Hari Singh fled Srinagar and arrived in Jammu. In the backdrop of disturbances, the Maharaja signed the Instrument of Accession on 26th Oct, 1947, and sent it to the first governor general of the dominion of India, Louis Mountbatten. Although Pakistan holds the view that no such agreement was signed between the Maharaja and India.

Unsurprisingly, the reply from Mountbatten came up very next day on 27th October 1947. Thus, it is clear that Mountbatten granted the accession of Kashmir state to the dominion of India but this accession was qualified. The reply stated that: “where the issue of accession has been subject of dispute, the question should be decided in accordance with the wishes of the people of state.”

The reply clearly indicates that the aspirations of the Kashmiri people are fundamental for the accession to be validated. This condition is still to be met. This situation clearly discredits the Indian argument about the Instrument of Accession. This is also evident from UNSC resolution 47(1948) which provides for a plebiscite.

It is, therefore, clear that the Kashmiri people have been denied exercise of the right to self-determination, which is a basic principle of international law. Self-determination has been explicitly recognised as a human right and arguably holds jus cogens value as well. Additionally, the principle of self-determination is embodied within the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Furthermore, India and Pakistan are States Parties to both these Conventions.

However, it is pertinent to note the Indian reservation on common Article 1 of the ICCPR and ICESCR. This restrictive interpretation of the right to self-determination by India arguably contradicts the object the purpose of both Covenants.

As a result of the outbreak of war in 1948, India took this issue to the UN. Consequently, the UN Security Council passed resolution 47(1948) of 21 April 1948. This resolution clarifies that both India and Pakistan desire that the question of the accession of Jammu and Kashmir, to India or Pakistan, be decided through the democratic method of a free and impartial plebiscite.

The UNSC reaffirmed the argument of Mountbatten contained in his reply to the Instrument of Accession, that aspirations of people should be of great importance and that these can only be deduced through an impartial plebiscite. However, this plebiscite did not materialize despite the UN Security Council resolution.

In 1949, the Indian Constituent Assembly adopted Article 370 of the Indian Constitution confirming a special status and internal autonomy for Jammu and Kashmir, with three areas being exempted from such status, namely defence, foreign affairs and communications. In this regard, Article 370 is very much vital because this grants a special status to Kashmir. Article 370 of Indian Constitution reveals that Kashmir cannot be incorporated into the dominion of the India.

Moreover, the ratification of the Instrument of Accession by the Constituent Assembly, in 1954, was done in disregard of the UNSC resolutions; this act demonstrates its tainted legitimacy. In addition, the UNSC passed resolutions 91(1951) and 122(1957) which reject the claim of the India with respect to ratification.

Now, the query arises as to why the UNSC did not act in spite of Indian disregard of its directions? The answer most likely lays in the fact that India took the Kashmir issue to the UN in 1948, under chapter VI and not under chapter VII. Chapter VI does not provide for enforcement action by the UNSC.

Likewise, after the Simla Agreement 1972, India limited settlement of the Kashmir dispute to bilateral negotiations. Thus, under the Indian interpretation of the Simla Agreement, the UNSC resolutions are not applicable and both states are to consensually negotiate to settle Kashmir issue. On the other hand, Para 1 (i) of the agreement states: “That the principles and purposes of the Charter of the United Nations shall govern the relations between the countries.” In this regard, the Simla Agreement nowhere states that UNSC resolutions are withdrawn or inapplicable.

Further, according to the UN charter, under Article 103, in the event of a conflict concerning obligations of the Members of the United Nations, under the present Charter, and their obligations under any other international agreement, their obligations under the Charter shall prevail. In this regard, constant effort by India, to restrict this issue solely to bilateral negotiations does not have sound legal basis. Further, United Nations Security Council resolution 1172, adopted unanimously on 6 June 1998, “urges India and Pakistan to resume the dialogue…”

What is alarming, however, is Prime Minister Modi’s promise to integrate the State of Jammu and Kashmir into the Union of India in contravention of Article 370 of Indian Constitution. In fact, this commitment is in contradiction of judgments given by the Srinagar High Court, pertaining to its interpretation of Article 370. These judgments highlight the special status of Kashmir and essentially bar Modi’s government’s from fully integrating Indian Held Kashmir into the Union of India.

It is evident from the above narrated historical context that the stability of South Asia is inherently linked with the resolution of the Kashmir dispute. This is further reinforced if one examines the current situation of unrest in Indian Occupied Kashmir. In this regard, along with its traditional stance on self-determination, Pakistan should also plea the Kashmir case under international humanitarian law.

Therefore, the state of Pakistan, in order to expedite resolution of dispute, must move away from its past tactics of using Jihadi groups in Kashmir. Moreover, the government of Pakistan must develop the strong legal basis it has, with regard to the dispute. This legal basis is further strengthened by Indian contradictions and the extrajudicial killing of Burhan Wani. The use of pellet guns by the Indian security forces, in Kashmir, has resulted in severe injuries, permanent loss of sight and deaths of innocent civilians. If Pakistan adopts a legal approach, it may build its legal case against India in the context of war crimes.

The writer is a student of M-Phil IR at NDU.