The Case For Kashmir
Amidst radio silence and increased military mobilisation by Indian troops within Jammu and Kashmir (J&K), the fears of many across the subcontinent were confirmed when news broke about provisions under Articles 370 and 35-A of the Constitution of India having been abrogated by way of the Constitution (Application to Jammu and Kashmir) Order, 2019 – seemingly under the authority of Article 370 (1) of the Indian Constitution.
Articles 370 and 35-A respectively guaranteed (i) special status to the state of J&K within the Indian Constitution, as well as (ii) certain constitutional rights for indigenous residents of the valley. While Article 370 guaranteed the establishment of a largely autonomous constitution for J&K– barring centrally controlled areas of defense and communication – to be drafted by the Constituent Assembly of J&K, Article 35-A established exclusive rights for ‘permanent residents’ within the state. The status meant that only permanent residents within J&K were entitled to settle, own land and receive government jobs and scholarships within the state. With the repeal of these constitutional rights, permanent residents of J&K have much to fear indeed.
On August 5th, 2019, the Jammu and Kashmir Reorganisation Bill (2019) was introduced in the Rajya Sabha, the upper house of the Indian Parliament. Set to function as a corollary to the abrogation, the Bill aims to divide the current state of Jammu and Kashmir into two new Union territories of Ladakh and Jammu & Kashmir respectively. Effectively, it aims to set aside the constitutional safeguard provided by the aforementioned articles, in favour of more control from New Delhi, hence challenging the partial autonomy of J&K.
Since India’s actions have the potential to affect the Kashmir issue at large, Pakistan may pursue legal options to settle the dispute. Historically, India has remained wary of international involvement in Kashmir, but the Jadhav case set precedent whereby India looked to give effect to the multilateral Vienna Convention on Consular Relations (1963) over its bilateral agreement with Pakistan. With India’s conventional stance now at question, Pakistan may move the Kashmir issue before the International Court of Justice (ICJ), the judicial organ on the United Nations (UN). However, under what authority could a claim be brought against India at The Hague?
As members of the UN, under Article 35, paragraph 1 of the Statute of the International Court of Justice, both Pakistan and India are guaranteed access to the ICJ. Under Article 36 of the aforementioned Statue, all member states recognise the jurisdiction of the Court in matters pertaining to legal disputes, with regard to the interpretation of international laws and treaties, subject to certain declarations, as will be discussed ahead. The provision further clarifies that the jurisdiction of the Court may be sought over the breach of international obligations by either party. By virtue of their membership of the UN, both India and Pakistan may approach the ICJ, the jurisdiction of which is recognised by both sides.
Pakistan’s case for Kashmir may lie within its historical interactions with India over the disputed region – its primary contention being centered on the latter’s violation of its international obligations, both multilaterally and bilaterally with Pakistan.
With the abrogation, as well as the institution of the Reorganisation Bill, India has effectively violated the Simla Agreement, 1972, which it had historically used as justification for a bilateral solution with Pakistan regarding Kashmir. Paragraph 1 (II) of the Agreement reads,
“Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation.”
However, the effect of the Constitution Order, as well as the move to bisect the state is nothing short of a unilateral alteration of the status quo in J&K.
In addition, the abrogation is a violation of India’s multilateral obligations with regard to Kashmir. The United Nations Security Council (UNSC) Resolution 47 (1948), which is legally binding on both parties, addressed the need for a “free and impartial” plebiscite to determine the fate of Kashmir. The abrogation of Articles 370 and 35-A threatens the sanctity of both values mentioned above. With the increased mobilisation of Indian troops within the region and the suppressive tactics being used against indigenous Kashmiris, people’s ‘freedom’ is now questionable more than ever before. With the abrogation of Article 35-A, and the subsequent removal of restrictions on settlement and land ownership by out-of-state Indians within J&K, there is now the potential for a demographic shift within the state in the long run. While the effects of such circumstances may not be felt until much later, a plebiscite, if arranged in the near future, would yield results that would most likely grossly misrepresent the demographics of J&K during its constitutionally protected period. Ultimately, the ‘impartiality’ of the vote may similarly be questioned.
Perhaps now is the best time for Pakistan to invoke the ICJ’s jurisdiction over the Kashmir issue. It is important to note, however, that the jurisdiction of the ICJ is subject to declarations by member states. Such declarations allow the declaring party to accept the provision at large, whilst creating certain exemptions from the same. On 18th September, 1974, India submitted its declarations regarding the jurisdiction of the ICJ, whereby in accepting the ICJ’s jurisdiction as stated above, India also highlighted instances where the same would not apply to the state. One out of the eleven declared exemptions stated that India would not accept the jurisdiction of the ICJ in matters which fell within India’s own domestic jurisdiction.
While Article 370 confers powers upon the President of India to declare the same to be void – thereby eliminating J&K’s special status – such powers are only to be exercised with recommendation from the Constituent Assembly of J&K. The Assembly, however, had been disbanded in 1956, thus creating concerns regarding the constitutionality of amendments to Article 370 without referral to the state Assembly in J&K. With the abrogation, the issue of constitutionality will have to be addressed by the Indian courts, as the matter falls within their domestic jurisdiction.
This is not a matter of jingoistic claim over the valley, but a consideration of the legal implications of such actions. The sanctity of any future plebiscite must be safeguarded. Perhaps the case for Kashmir is imminent.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.