What Does International Law Say About Kashmir?
Present-day Kashmir, once home to flourishing Dharmic communities and thought, is now three separate territories – Pakistan Occupied Kashmir, China controlled Kashmir, which China obtained through a boundary settlement with Pakistan and occupation of land during the 1962 Indo-China War, and finally, the Indian-administered state of Jammu & Kashmir, or J&K as it is popularly called. J&K is further divided into Jammu, the Kashmir Valley, and Ladakh.
As a result of the abrogation of Article 370 of the Indian Constitution on August 5, 2019, Jammu and Kashmir are now bifurcated into two (2) separate Union Territories – Union Territory of J&K and Union Territory of Ladakh. The constitution of J&K is now void and the region is governed under the Constitution of India.
Although the region of Kashmir is considered disputed territory between Pakistan and India, International Law strongly supports the argument that Kashmir was, and is, an integral and legal part of India.
To understand why we look at (2) crucial legal instruments that establish a contextual framework for confirming Kashmir’s union with India.
- The Instrument of Accession of the State of Jammu and Kashmir to India, signed on October 26, 1947.
- The United Nations Security Council Resolution 47, adopted April 21, 1948.
The Instrument of Accession
In 1947, when the British sought to divide India into two separate countries, the British Viceroy offered individual kings of princely states the right to accede either to India or Pakistan by executing an Instrument of Accession signed by the ruler and accepted by the Governor-General of the Dominion of India. The decision to accede to either nation was an exclusive right of the ruler of that state.
Maharaja Hari Singh was the ruler of Jammu and Kashmir at this time.
As the Maharaja was debating whether or not to join India, Pakistan invaded Kashmir on October 22, 1947, sending hordes of its armed forces and armed tribesmen to attack Kashmir. Pakistan Occupied Kashmir, or PoK, is that part of Jammu and Kashmir which was invaded by Pakistan in 1947. This invasion has been condemned as a violation of international law by various scholars and experts.
The panic-stricken Maharaja made a plea for help from the Government of India for military aid to counter this attack. India could provide military aid only if Kashmir was validly within India’s territorial jurisdiction. Thus, on October 26, 1947, Maharaja Hari Singh legally and effectively acceded the region of Jammu and Kashmir to India. India subsequently sent in its military forces to counter the attacks from Pakistan.
This Instrument of Accession was legal under the Government of India Act of 1935, which provided that an Indian State may accede to India by an Instrument of Accession executed by the ruler of such state. In the Instrument, Hari Singh gave the Indian government authority to “exercise in relation to the State of Jammu and Kashmir such functions as may be vested in [the Indian government] by or under the Government of India Act, 1935 as in force on the 15th Day of August, 1947 [India’s Independence Day].”
The Instrument of Accession confers authority to the Government of India to pass and enforce laws for J&K in all matters concerning:
- External Affairs 🡪 includes the implementation of treaties and agreements with other countries, extradition, naturalization, and immigration.
- Communications 🡪 which includes wireless connectivity, broadcasting, regulation over railways, maritime shipping and navigation, admiralty jurisdiction, and air navigation.
On October 17, 1949, the Indian Parliament inserted Article 370 into the Constitution of India to further operationalize the Instrument of Accession. Article 370 was a temporary provision that conferred special powers and status to the state of J&K, legally authorizing the state to implement its own constitution.
J&K democratically adopted its own constitution on January 26, 1957, in pursuance of the Instrument of Accession to India to “further define the existing relationship of [J&K] with the Union of India as an integral part thereof.”
Among other things, this constitution:
- affirmed the State of Jammu and Kashmir as an integral part of the Union of India (Part II, Article 3); and
- recognized that the Indian Parliament has executive and legislative power under the Constitution of India for certain matters in Jammu and Kashmir (Part II, Article 5). These matters include Defense, Foreign Affairs, Finance and Communications.
UN Security Council Resolution 47
United Nations Security Council Resolution 47, passed on April 21, 1948, clarifies precisely why the much talked about the plebiscite, or voter referendum has not materialized for the people of Kashmir. In sum, this is due to Pakistan’s failure to fulfill the first condition of Resolution 47 required before a plebiscite can occur.
Resolution 47 calls for a “democratic method of a free and impartial plebiscite” by the people of Jammu and Kashmir to self-determine their status.
Resolution 47 confirmed that before any plebiscite could occur, the following chronological conditions had to be fulfilled so a true plebiscite could occur with peace and order and through the joint cooperation of the Indian and Pakistani governments:
- To restore peace and order, Pakistan had to first withdraw its military, armed tribesmen and armed Pakistani nationals who entered the state for the purpose of fighting. Pakistan had to prevent any intrusion into the state of such elements and any furnishing of material aid to those fighting in the state.
- Once it was established to the “satisfaction of the Commission set up in accordance with the Council’s resolution 39 (1948)” that the Pakistani military and armed fighters were withdrawing, India was required to incrementally withdraw its own forces from J&K, but only to the “minimum strength required for the support of the civil power in the maintenance of law and order” in the region.
- Only after #2 was in operation, local personnel were then to be recruited in each district to help establish law and order “with due regard to the protection of minorities.”
After this point, Resolution 47 set forth guidance on how to practically administer the plebiscite on the ground.
The first condition named in Resolution 47, necessary for restoring peace and order in the region and ensuring a fair and democratic plebiscite, remains unfulfilled by Pakistan to this day. Subsequent UN Resolutions on this matter repeatedly call for a withdrawal of Pakistani armed presence and military from the region.
Over time, Pakistan has increased its military presence and utilized and funded terrorist elements to create unrest and instability in the region, further violating Resolution 47.
As a result, no plebiscite has occured for the Kashmiri people, and the Instrument of Accession remains an unconditional, legally binding instrument to this day, empowered by the Government of India Act of 1935 and the Indian Independence Act of 1947.
- United Nations Security Council Resolution 47, available at https://digitallibrary.un.org/record/111955/?ln=en#record-files-collapse-header
- The History of the Kashmir Conflict, Parts 1-3, available at https://youtu.be/SnOoQzv_DTs
- Instrument of Accession of Jammu and Kashmir, available at http://jklaw.nic.in/instrument_of_accession_of_jammu_and_kashmir_state.pdf
- Constitution of Jammu and Kashmir (rendered void on August 5, 2019), available at http://jklaw.nic.in/the_constitution_of_jammu_and_kashmir_1956.pdf