Article 7-2 of Independence of India Act 1947 declared the lapse of suzerainty of “His Majesty’s Government” over the Indian States. Under Article 2-4, the princely states were allowed to join “either of the new Dominions.” While it was a straightforward decision for other princely states due to their geographical proximity, territorial contiguity or political and religious affiliation of the ruler and subjects, issues were surrounding the accession of the state of Jammu and Kashmir.
The ruler of the state, Maharaja Hari Singh, flirted with the idea of remaining independent. However, Indian machinations spearheaded by Congress leaders including Nehru and Patel went into a full drive to seek alleged accession from Hari Singh on October 26, 1947. On October 27, 1947, the Governor General of India approved the accession with the condition that as soon as law and order were restored in Kashmir, the question of the state’s accession should be settled by a reference to the people.
The BJP’s recent attempt to include the territory of the state within the union’s territory of India is clearly an act of occupation and illegal annexation
The purported Instrument of Accession (which India has failed to produce so far) denies the authority of any unilateral action by India. The terms of the Instrument could not have been varied even by amending the Indian Independence Act, 1947 without acceptance of the ruler of the state (clause V). Furthermore, nothing in the Instrument would have been deemed to be a commitment as to the acceptance of any future constitution of India and nothing could have affected the sovereignty of Maharaja over the state (clause VII and VIII).
Due to the conflict between Pakistan and India over the accession of the state, the United Nations declared the military control territory under both the countries as the ceasefire line which was re-designated as the “Line of Control” following the Shimla Agreement of 1972. The UNSC resolution 1948 recognized the state as a disputed territory and reaffirmed that the permanent status of the state shall be decided by a plebiscite. The UNSC resolutions of 1951 and 1957 further condemned India’s unilateral attempts to alter ‘special status’ of the state.
The Shimla Agreement forbids unilateral action to change the status of the State. Clause I of the Agreement specifically states that neither India nor Pakistan shall unilaterally alter the status and situation of the state. Clause VI further emphasised that both the countries should discuss modalities for a final settlement of the state through diplomatic means. Thus, India’s claim that the revocation of state’s ‘special status’ is its internal issue negates its obligation under the Shimla Agreement. By the revoking the state’s special status, India has, in fact, violated the Shimla Agreement.
Essentially, India has unlawfully annexed and illegally occupied the state. From the international legal opinion on the issue of self-determination, as developed in the aftermath of Second World War and the process of decolonization, the fate of millions of people of Jammu and Kashmir cannot be left to the whims of India. Given the UN General Assembly resolution of 1960 concerning Declaration on the Granting of Independence to Colonial Countries and Peoples, the people of Jammu and Kashmir have every right to self-determination.
Under Article 42 of the Hague Regulations 1907, a territory is considered occupied when it is placed under the authority of a hostile army. The International Court of Justice (ICJ) in an advisory opinion (2004) regarding legal consequences of the construction of a Wall in the Occupied Palestinian Territory stated again that territory under the authority of a hostile army is considered occupied.
India has no title on the state under international law. India’s illegal occupation since 1947; denial of the right to self-determination of the people; application of India’s constitution by removing state’s special status makes it an occupying power and its military a hostile army. The BJP’s recent attempt to include the territory of the state within the union’s territory of India is clearly an act of occupation and illegal annexation.
Jean Simon Pictet, a prominent jurist, while explaining Article 47 of Geneva Convention, stated that the occupying power is the administrator of the territory and is under various positive obligations towards the occupied population (that is, the occupying power cannot annex the occupied territory or change its political status). Jean Pictet elaborates that occupying power must respect and maintain the political and other institutions of the occupied territory. In occupation of Iraq, the UNSC confirmed Jean’s view and confirmed the obligation of occupying power to leave the occupied territory’s position intact [resolution 1483 (2003)]. Therefore, India being an occupying power cannot annex the state’s territory and is bound to keep the state’s institutions and territorial boundaries intact.
The ICJ also stated that the revocation of the autonomy and special status of Jammu and Kashmir by India violates the rights of representation and participation available to the people of Jammu and Kashmir under international law
Considering the violation of the UNSC resolutions and international law regulations and conventions, the international community should act to save two nuclear-armed neighbours from the havoc of war. The UN must implement its own resolutions and use its mandate to enforce international law in the case of Jammu and Kashmir.
The writer is a lawyer