The revocation of Articles 370 and 35-A from India’s constitution has highlighted, once again, the seven decades-old issue of the State of Jammu and Kashmir. Before this calamity, the state had separate laws, constitution and a flag, and India’s constitution was applicable only to the extent of communications, foreign affairs, and defence of the state.
Under the Indian Independence Act 1947, princely states were free to accede to Pakistan or India or remain independent. In the beginning, Maharaja Hari Singh, ruler of the state, decided to remain independent. However, on October 26, 1947, an ‘Instrument of Accession’ with India is alleged to have been contracted by Maharaja Hari Singh. On October 27, 1947, the governor-general of India approved the accession on the condition that “as soon as law and order were restored in Kashmir and her soil cleared of the invader, the question of State’s accession should be settled by a reference to the people.” The UNSC resolution 1948 reaffirmed that the permanent status of the state shall be decided by a plebiscite.
By the revocation of the state’s special status, the situation has become an occupation with an unlawful annexation. India is an occupying power and it has unlawfully annexed the state without the will of the people.
International law considers ‘occupation’ as a question of fact, which does not require a declaration or recognition by the occupying power. Article 42 of the Hague Regulations 1907 defined the occupation as: ‘‘Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.’’
International humanitarian law protections of vulnerable populations are undoubtedly applicable to the people of Jammu and Kashmir
The definition envisages three ingredients of occupation: first, a territory which the occupying power has no title under international law, second, the occupying power is a hostile army, and third, that the occupying power has effective control and exercises its authority over the territory.
The International Court of Justice (ICJ), in advisory opinion (2004) regarding legal consequences of the construction of a wall in the occupied Palestinian territory opined that “territory is considered occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.”
UNSC resolutions recognized the state as a disputed territory. In Resolutions 91 of 1951 and 122 of 1957, the UNSC rejected Indian attempts to unilaterally alter the special status of the state.
The Shimla Agreement of 1972 between Pakistan and India also states that neither side shall take unilateral action in Jammu and Kashmir to alter its position. The first clause of the agreement states:
“Pending the final settlement of any of the problems between the two countries, neither side shall unilaterally alter the situation and both shall prevent the organization, assistance or encouragement of any acts detrimental to the maintenance of peaceful and harmonious relations.”
Clause 6 of the agreement further stipulates, “…the representatives of the two sides will meet to discuss further the modalities and arrangements for the establishment of durable peace and normalization of relations, including the questions of prisoners of war and civilian internees, a final settlement of Jammu and Kashmir and the resumption of diplomatic relations.”
The Instrument of Accession of 1947 denies any authority to unilaterally take action on Kashmir. Clause five of the Instrument states: “The terms of this Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947 unless such amendment is accepted by an instrument supplementary to this Instrument.”
Clause seven and eight of the Instrument respectively state:
“Nothing in this Instrument shall be deemed to be a commitment in any way as to acceptance of any future Constitution of India or to fetter my discretion to enter into an arrangement with the Governments of India under any such future Constitution.”
“Nothing in this Instrument affects the continuance of my sovereignty in and over this State, or save as provided by or under this Instrument the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.”
The presence of a hostile army is a second condition for an occupation. India’s illegal occupation since 1947 and denial of the right to self-determination of Kashmiri people and particularly actions of August 5 2019 are a material breach of Instrument of Accession which makes India a hostile army.
Third, unlawful occupation of the state since 1947, the unlawful annexation of the state into the Indian constitution on August 5, the extension of 260 articles to the territory as well as the application of Indian laws in the state by the Indian army and law enforcement agencies fulfil the requirements of authority under international law. Thus, BJP’s recent attempt to include the territory of the state within the union’s territory is an act of occupation and illegal annexation and sheer violation of international law.
Jean S. Pictet states that there is a difference between occupation and annexation. In the commentary to Article 47 of Geneva Convention IV, he states that “The law of occupation merely recognises that the occupying power is the administrator of the territory and thus establishes a series of positive obligations towards the occupied population. As a result, the occupying power cannot annex the occupied territory or change its political status. Instead it must respect and maintain the political and other institutions which exist in that territory for the entirety of the occupation.” In occupation of Iraq, the UNSC reiterated the obligation to leave the occupied territory’s position intact in resolution 1483 (2003).
The Eritrea-Ethiopia Claims Commission (Commission) award held that the law of occupation could be applied to contested territory. In 2004, in Partial Award, the commission referred to the Fourth Geneva Convention and the Hague Regulations 1907 and held that “neither text suggests that only territory the title to which is clear and uncontested can be occupied territory.” The commission further stated that the alternative to this conclusion “could deny vulnerable persons in disputed areas the important protections provided by international humanitarian law.”
This approach has been reaffirmed by the International Committee of the Red Cross in 2016 in the commentary to the Geneva Convention, which under Article 2 states that: “Any other interpretation would lead to a result that is unreasonable as the applicability of the law of occupation would depend on the invading state’s subjective considerations. It would suffice for that state to invoke the controversial international status of the territory in question in order to deny that the areas in question are occupied territory and thus evade its responsibilities under the law of occupation.”
Thus, international humanitarian law protections of vulnerable populations are undoubtedly applicable to the people of Jammu and Kashmir, where a local rebellion is being fought against a brutal army.
The revocation of the special status of the state is against international law. The statement of the International Commission of Jurists (ICJ) confirms this position when it stated that “[t]he Indian government’s revocation of the autonomy and special status of Jammu and Kashmir violates the rights of representation and participation guaranteed to the people under…international law.”
Considering the gravity of the crisis, the UNSC and other champions of democracy, peace and human rights must ensure that international law is applied both in the state and in India.
The writer is a lawyer