PAKISTAN upholds the right of the people of Jammu and Kashmir to self-determination in accordance with the resolutions of the United Nations Security Council. These resolutions of 1948 and 1949 provide for the holding of a free and impartial plebiscite for the determination of the future of the state by the people of Jammu and Kashmir. Pakistan continues to adhere to the UN resolutions. These resolutions are still binding on India. Pakistan argues that the prevailing international practice on recognition of state governments is based on the following three factors: first, the government’s actual control of the territory; second, the government’s enjoyment of the support and obedience of the majority of the population; third, the government’s ability to stake the claim that it has a reasonable expectation of staying in power.
The situation on the ground demonstrates that the Maharaja was hardly in control of the state of Jammu and Kashmir. In fact, almost all of Kashmir was under the control of the invading tribesmen and local rebels. The Maharaja held actual control over only parts of Jammu and Ladakh at the time that the treaty was signed. Moreover, Hari Singh was in flight from the state capital, Srinigar. The principle of self-determination stipulates the right of every nation to be a sovereign territorial state. It affords to each population the right to choose which state it wishes to belong to, often by plebiscite. The principle of Self-Determination is commonly used to justify the aspirations of minority ethnic groups. The principle equally grants the right to reject sovereignty and join a larger multi-ethnic state.
While considering the basic principle behind self-determination, as article 1(2) of the Charter of the United Nations 1945 states: ‘The purposes of the United Nations are…to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace…’ we must also recognize that the doctrine of self-determination is also part of two more international human rights treaties: the International Covenant on Civil and Political Rights (xi), and the International Covenant on Social, Economic and Cultural Rights (xii). Common article 1, paragraph 1 of these Covenants provides that: ‘All people have the rights of self-determination, by virtue of that right they freely determine their political states and freely determine their economic, social and cultural development.’
Pakistan argues that even if the Instrument of Accession is considered legal (though it is not), India’s refusal to hold a plebiscite in Kashmir makes the accession incomplete. India, however, argues that its expressed “wish” to hold a plebiscite in Kashmir is amoral, not legal obligation. Pakistan, however, retorts that India’s obligation to hold a plebiscite in Kashmir arises out of India’s acceptance of the United Nations Commission for India and Pakistan (UNCIP) resolutions of August 13, 1948. India’s position seems highly murky and dwindling considering the legal principles expressed in international laws regarding Kashmir’s sovereignty and the will of the Kashmir people to uphold the Indian rule. And more further keeping in view, the Latin maxim nulluscommodumcaperepotest de injuriasuapropria (no man can take advantage of his own wrong), this means in Kashmir context that India cannot frustrate attempts to create conditions ripe for a troop withdrawal and ceasefire in order to avoid carrying out its obligations to hold a plebiscite.
And yet India has been pleading that the Simla agreement is the only way to resolve the Kashmir issue. The Simla Agreement does not prevent rising of Kashmir issue in the UN. It also does not restricts both countries for seeking the bilateral resolution only. Para 1 of Simla agreement specifically provides that the UN Charter “shall govern” relations between the parties. Para 1 (ii) providing for settlement of differences by peaceful means.
Articles 34 and 35 of the UN Charter specifically empower the Security Council to investigate any dispute independently or at the request of a member State. These provisions cannot be made subservient to any bilateral agreement. According to Article 103 of UN Charter, member States obligations under the Charter primacy over obligations under a bilateral agreement. Presence of United Nations Military Observes Group in India and Pakistan (UNMOGIP) at the Line of Control in Kashmir is a clear evidence of UN’s involvement in the Kashmir issue.
As a party to both the Geneva Convention and the International Covenant on Civil and Political Rights, India is obliged to follow standards of human rights enshrined in these treaties. Pakistan declares that India has committed gross violations of human rights in Kashmir, thereby violating international law and justifying Kashmir’s right to self-determination. Those Indian thinkers or policy engineers who think that the principle of self- determination of the people of Kashmir comes outside the colonial context and has no justification for UN’s mandatory role in Kashmir are absolutely in line up with the Israeli policy thinkers who also argue that Israel’s today enjoys the leverage of the doctrine of utipossidetisjuris (0f 1810). They both are wrong and delusional in their thinking. And therefore the notion- that the UN’s resolutions on Kashmir are obsolete-holds no justification. The fact of the matter is that the UN Charter upholds the right of self- determination without compromising the political expediencies. It is why there are manifold UN’s resolutions on both Palestine and Kashmir. International law carries out the attribution of wrongful conduct pursuant to the state theory, which operates en lieu of causation. The absence of causal analysis from the determination of internationally wrongful acts is the result of consistent State practice, based on a clear distinction between the national and international legal orders.
International responsibility is not domestic liability writ large; it is international accountability of international actors in the international community. The differences that international responsibility bears with domestic legal orders respond to the legal articulation of an international system of rules, distinct from the legal orders of the sovereign subjects it addresses. Given this argument of international law, the UNSC as well as India have to fulfil their ascribed roles of international responsibility vis-à-vis Kashmir dispute that causes great concern in international community. Kashmir is an unfinished agenda of the partition of subcontinent. A solution to Kashmir is absolutely crucial to ensuring the integrity of both international law and international security on subcontinent.
— The writer is an independent ‘IR’ researcher based in Karachi.