The move by New Delhi to approach the ICJ in alleged Indian spy Kulbushan Jadhav’s case has set off alarm bells in various circles in India about the possible reference by Pakistan of the Kashmir issue to the ICJ, a scenario considered to be suicidal by many. Such reaction is, to say the least, misdirected. New Delhi today may not have a military, diplomatic, economic or political solution to comprehensively resolve the Kashmir issue. Rather, New Delhi’s Kashmir policy has been to tighten New Delhi’s grip on the part of the state with it by emasculating the state’s autonomy guaranteed by Article 370 of the Constitution, and to hand over the Kashmir Valley to security forces to maintain law and order under the shield of draconian penal laws of dubious constitutional validity like AFSPA, TADA and so on and so forth. The security forces, who did not create the Kashmir issue and do not have a solution for it, have no option but to carry out the directives of their political masters to contain the violence that now has schoolgirls pelt stones at security forces. Laws do not persuade just because they threaten. But, if New Delhi wants to seriously attempt to resolve the Kashmir issue, it must aim to change the current political discourse on this vexed problem, both internationally and nationally. Given India’s past experience of the UNSC, one can understand the concerns of Indian observers at the prospect of taking the Kashmir issue to the ICJ. But then, the Kashmir problem is an international issue – it cannot but be one when the state is under the control of three sovereign countries, India, Pakistan and China. New Delhi can keep harping about J&K being an integral part of India – the rest of the world simply does not agree. Moreover, New Delhi’s Kashmir policy will not make Pakistan, or China, vacate the part of J&K occupied by them. New Delhi would, therefore, need to take concrete steps to break the political stalemate that has existed with Pakistan and China for decades.
It is against this backdrop that one must consider whether taking the Kashmir issue to the ICJ is a viable option. It is, in my opinion, the first step towards a resolution of the Kashmir problem for the reasons given in my doctoral thesis way back in 2001 and in my book, Unravelling the Kashmir Knot, published last year. Modern day India and Pakistan are creations of the Partition agreement of 3 June 1947, crystallized in British statutes. However, as per these very statutes, all the princely states were to regain full sovereignty and such sovereignty vested in the ruler, regardless of the religious complexion of the people of the state concerned. It was the ruler alone who could decide to accede to India, Pakistan or remain independent. These British statutes were accepted by both India and Pakistan. Indeed, there is no doubt about the legitimacy of the states of India and Pakistan created by such statutes, and that such statutes comprised the constitutional law governing both India and Pakistan. The sovereign ruler of J&K unconditionally acceded to India on October 26, 1947, in the manner prescribed under the constitutional law that created India and Pakistan and was accepted by India and Pakistan. New Delhi viewed the accession as being ‘purely provisional’ and subject to the wishes of the people. By doing so, New Delhi overlooked that once a political decision (the Partition Agreement) had been crystallized into law (i.e the British statutes), the executive created by that law cannot act contrary to the terms of that very law. It is well settled that a state cannot, by making promises, clothe itself with authority which is inconsistent with the constitution that gave it birth. The constitutional law creating modern day India mandated that it was only the sovereign ruler who could decide on the accession of his state to India.
New Delhi had no power to lay down a contrary policy that the accession would be decided by the wishes of the people. Since the accession of J&K to India was in terms of the same constitutional law that also created Pakistan, it would be fair to say that the law that gave birth to Pakistan itself made J&K a part of India. Ot is not open in international law for a state (Pakistan) to challenge the accession made by a sovereign state (J&K) to another sovereign state (India), such accession being an Act of State. The ruler of J&K has never challenged the accession as being fraudulent or based on violence. Rather, he acceded to India unconditionally in the three areas of external affairs, defence and communications. The UN, and every state ‘contracting’ with India (including Pakistan) are held in international law to have had the knowledge that New Delhi exceeded its powers under the said constitutional law by pledging to hold a plebiscite in J&K to settle the question of accession, and, that too, in the absence of its sovereign ruler. As a result, not only was New Delhi’s ‘pledge’ of holding the plebiscite in J&K unconstitutional and not binding on India, the UNSC resolutions for holding the plebiscite were themselves without jurisdiction and in violation of the UN Charter.
But then, it was New Delhi that had, in the first place, created doubts about the unconditional nature of the accession of J&K to India, internationalized the Kashmir issue and conferred a disputed territory status on J&K. It was New Delhi which consequently enabled the separatists, Pakistan and other countries to argue till date that it is a ‘freedom struggle’ that was underway in Kashmir. Therefore, it is New Delhi that needs, as a first step, to confirm, as it were, its title deeds to J&K so as to remove the ‘disputed territory’ tag on J&K. The only body in existence whose pronouncement will be considered as being authoritative and having legal effect on the international community is the principal judicial organ of the UN, namely, the ICJ. Since India is entitled in law to the entire territory of J&K, it lies in India’s interest to have the ICJ examine the Kashmir issue, regardless of the issue of enforceability of ICJ decisions or the dynamics of international politics. Such examination is not precluded by the Simla Agreement or any other bilateral agreement between India and Pakistan.
And so, New Delhi should not shy away from taking the Kashmir issue to the ICJ, it being a convenient way of depoliticizing the matter. While the Kashmir issue is certainly a political one, it is possible for New Delhi to separate the legal from the political aspect of the issue, so that it can vindicate its claim to the entire territory of J&K based on legal rights. If the ICJ gives a verdict in India’s favour, and it is likely to do so in view of the legal principles (formulated in the book), the very presence of Pakistan and China in the territory of J&K would constitute ‘aggression’ under international law, and the international community would be under an obligation to put an end to that illegal situation as illustrated by the 1971 ICJ decision in Namibia. No country can then extend even ‘moral’ support to the supposed ‘freedom struggle’ in Kashmir. New Delhi would like nothing more than for the international community to pressurize Pakistan to vacate its aggression and to stop cross-border terrorism. But for that to happen, New Delhi must first obtain a finding from the ICJ confirming the entire territory of J&K to be a part of India.
In the unlikely event that the ICJ decides against India by opining that the future of J&K will be decided by the wishes of the people, New Delhi still stands to lose nothing. New Delhi has always maintained that the people of J&K have endorsed the accession, as is evident from the resolution of February 15, 1954, of the elected state Constituent Assembly. The Assembly, which had been set up in 1951 by the sovereign ruler of J&K, framed the Constitution of Jammu & Kashmir of 1957 declaring J&K as an integral part of India. It is true that law alone cannot resolve the Kashmir issue, but a confirmation of the legal position by the ICJ will help alter the political discourse and swing political opinion in India’s favour to create a momentum for winning the confidence of the people of the state. New Delhi must take steps to regain the moral authority to be in J&K and to undo past mistakes, its success being dependent on the character of the Indian State and of the men and women who run it.
Britain’s gilgit grab: India left barking up the wrong tree
Declassified British archives establish the Partition of the Indian sub-continent was scripted by the British for their geo-strategic interests during its 'Great Game' (the precursor to the Cold War) with then Soviet Russia, to prevent Russian influence from travelling southwards towards oil-rich Middle East. 'Pakistan' was a necessity as it formed part of the Islamic crescent from Turkey to China that would serve as an ideological boundary to check Russia's influence. The political agreement of Partition, driven by the British and the Muslim League, and eventually accepted by the Congress, was crystallized in British statutes - the Indian Independence Act of 1947, and the modified Government of India Act of 1935. The British provinces of Punjab and Bengal were partitioned according to the two-nation theory, conceived by the British and mouthed by M.A. Jinnah to justify the creation of Islamic Pakistan, with the 560 odd princely states given the choice to accede to either India or Pakistan or remain independent.
While planning Partition, the British assumed — wrongly — that the strategically-located state of Jammu & Kashmir (J&K) would accede to Islamic Pakistan. Instead, J&K acceded to India on October 26, 1947, defeating the very rationale of creating ‘Pakistan’. But, the British did not need the whole of J&K, merely strategically placed Gilgit and the slice of today’s ‘Pakistan-occupied-Kashmir’ to protect Pakistan from liquidation should India go to war. Britain, in violation of every conceivable principle of international law, effected a takeover of Gilgit on October 30, 1947. ‘Pakistan-occupied-Kashmir’ was captured by Pakistan-led tribals with the collusion of the British, whose officers headed both Indian and Pakistani armies.
India remained a British dominion till 1950, with the King as its formal head. Right up to 1948, New Delhi let Governor General Lord Louis Mountbatten formulate India’s Kashmir policy. Mountbatten disclosed in an interview that, at the time of accession of J&K, he told Prime Minister Jawaharlal Nehru that he (as GG) would sign the acceptance of the accession instrument only if New Delhi agreed to hold a plebiscite in J&K to determine the wishes of the people. New Delhi agreed to such plebiscite, having formulated the policy of ascertaining the wishes of the people in the case of disputed accessions, as in Junagadh and Hyderabad. New Delhi accordingly ‘pledged’ that it would regard the accession of J&K to be ‘purely provisional’ and subject to the wishes of the people who would ‘settle’ the question of accession.
Mountbatten persuaded New Delhi to involve the UNSC. The real purpose was to take Kashmir issue out of India’s domestic jurisdiction and have the UNSC call for a cease-fire without requiring Pakistan to first vacate the areas of J&K that it had occupied through aggression and to have the UNSC look the other way when Pakistan consolidated its control over such occupied territory. New Delhi was compelled by the UNSC to respect the ceasefire line and to helplessly watch as Pakistan consolidated its control over the occupied territory. Thus, under the guise of an UNSC directed cease-fire, Pakistan (and the British) retained precisely those areas of J&K that the British needed for the Great Game. Mountbatten also succeeded in persuading New Delhi to commit to hold a plebiscite in J&K under international auspices. The UNSC would then bypass India's complaint of aggression and hold India to its offer of plebiscite in J&K, as it does even today. It was a trap laid at the UNSC by the British for New Delhi to confer ‘disputed territory’ status on J&K. New Delhi fell for it. India is the only country that has gone to the UN complaining of aggression against its territory and returned by committing to a plebiscite to first decide whether that territory even forms part of the country.
New Delhi, realised, too late, that the UNSC was being subverted by the political expediency of its members, and that it had tied India's hands and pre-empted it from recovering a substantial portion of the state. New Delhi took the easy way out-it simply disowned the occupied territory of the state and its unfortunate people, who remain citizens of India under the Indian Constitution but live under foreign rule. New Delhi, following the policy of territorial status quo, even indicated its inclination to partition J&K along the lines recorded in the UN Yearbooks. It told the UNSC on February 15, 1957, that it considered that it had ’a duty not to re-agitate matters’ and had decided to ‘let sleeping dogs lie so far as the actual state of affairs is concerned’.
When Indian forces reclaimed part of the territory of J&K during the Indo-Pakistan wars, New Delhi handed back territory. When Pakistan audaciously gifted a part of the occupied territory to China in 1963, New Delhi confined itself to making formal, impotent, protests. New Delhi then decided that the UNSC could not call the shots on J&K, forgetting that it was Delhi that had taken the Kashmir issue to the UN. It adopted the position that Kashmir must be resolved bilaterally under the Simla Agreement of 1972 and the Lahore Declaration of 1999. Delhi sees a major diplomatic victory if any country endorses the Kashmir issue as ‘bilateral‘! All of Delhi’s energies are frittered away in checking the internationalisation of the issue, little realising that each time it terms the Kashmir issue a bilateral dispute, it reaffirms Pakistan’s standing in the matter, other than as an aggressor.
Delhi emphasises the ‘inviolability’ of the LoC at every conceivable occasion and strives, unofficially, for the conversion of the LoC into the international border. It is content to lodge protests at the proposed formal annexation by Pakistan of the Gilgit region or at the use of such Indian territory for the China Pakistan Economic Corridor. Implicit in this policy is that New Delhi is willing to cede national territory, overlooking that it lacks competence under the Indian Constitution to do so. The Supreme Court had held at one point of time that Parliament could cede national territory. However, in 1973, the Court took the view that Parliament lacked power to tinker with the basic structure of the Constitution, which includes the unity and territorial integrity of the country. As a result, Parliament cannot give away Indian territory. In following this policy of territorial status quo. New Delhi has, therefore, been barking up the wrong tree.
(Dr. Aman M. Hingorani is a Supreme Court of India advocate and author of ‘Unravelling the Kashmir Knot’)...