1202hrs:
If not for connectivity issues, I would and could have posted today's entry even earlier than the times at which I have been posting at over the past few days.
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Dr Nazir Gilani describes the following as the elementary variables of the jurisprudence of Kashmir case:
The Strength of Kashmir's Case
The Kashmir dispute is not merely a territorial issue but a multifaceted legal, political, and human rights matter that has remained unresolved due to a series of complex commitments, international resolutions, and unfulfilled promises. India’s control over Kashmir, especially since the revocation of Article 370 in 2019, has increasingly come to resemble an occupation, rather than the legitimate governance of a fully integrated region. The following argument presents the key reasons why India's control over Kashmir lacks a solid legal foundation, and why Kashmir’s case for self-determination remains strong and supported by international law.
1. Historical and Bilateral Commitments: The Sovereignty of Kashmir
India's legal and historical relationship with Kashmir is based on commitments made at various stages, beginning with the bilateral understanding between India, Pakistan, and the British authorities in the wake of Partition. On 26 October 1947, India made a commitment to the British Prime Minister, Clement Attlee, and, subsequently, to Pakistan (31 October 1947) and the United Nations (15 January 1948), that the political future of Kashmir would be decided by the will of its people, in a manner that would respect their right to self-determination.
This promise was reinforced in India's 1948 statement to the UN, which emphasized the need for a peaceful plebiscite under international supervision once order and peace were restored in Kashmir. This established the framework for a future plebiscite, which would allow the Kashmiri people to determine their own future, independent of external influence. India’s actions since then, particularly the imposition of unilateral constitutional changes such as the abrogation of Article 370 in 2019, violate this foundational commitment. By refusing to honour the pledge made in 1947 to let the people of Kashmir decide their future, India is undermining its own legal obligations, both to the Kashmiri people and to the international community.
2. Kashmir’s Sovereignty: The Significance of Visa Restrictions (1947-1959)
A critical piece of evidence demonstrating Kashmir’s sovereignty, and its separate status during the early post-Partition period, is the imposition of visa restrictions for Indian citizens wishing to visit Kashmir from October 1947 to March 1959. This period of restrictions was a significant assertion of Kashmir's autonomy and its governance separate from that of India. The restriction was only lifted on 31 March 1959 by the then Prime Minister of Kashmir, Bakshi Ghulam Mohammad, at the direct request of India's Prime Minister Jawaharlal Nehru. This unilateral decision to lift the visa restrictions on Indian citizens was made only after a period of more than a decade, during which Kashmir maintained a level of autonomy consistent with its unique political status.
The fact that visa restrictions were in place for over a decade after the alleged accession of Kashmir to India serves as a clear proof that Kashmir was not simply an integral part of India in the immediate aftermath of Partition. The imposition of such restrictions from October 1947 to March 1959 suggests that Kashmir operated under a de facto sovereign status during that period, and that India had not yet assumed full control over the region. India’s own actions acknowledged Kashmir’s autonomy at that time, further supporting the argument that Kashmir was a distinct political entity with its own set of governance norms and rules.
3. UN Resolutions and Article 103 of the UN Charter
The Kashmir dispute is not merely a bilateral issue between India and Pakistan; it is an internationally recognized conflict with implications for international peace and security. Following India’s request for UN intervention in 1948, the UN Security Council adopted resolutions that laid out a framework for the peaceful resolution of the dispute. UNSC Resolutions 47 (1948), 51 (1948), and others clearly called for a plebiscite in Kashmir to allow its people to decide their future once peace was restored. These resolutions have never been fully implemented, and India’s actions, such as the revocation of Article 370 and continued military occupation, are seen as violations of the terms set by the UN.
Under Article 103 of the UN Charter, India's obligations under international law take precedence over any conflicting national laws. India’s unilateral actions in Kashmir, including constitutional amendments and changes to its governance structure, directly violate its obligations under UN resolutions. By disregarding these international commitments, India not only fails to honour its legal duties but also undermines the principles of self-determination that have been central to the Kashmir dispute since its inception.
4. The Kashmir Resistance: A Strong Case for Self-Determination
Kashmiris, both within India-administered Kashmir and in the diaspora, have consistently resisted India's control over the region. Resistance movements in Kashmir, including peaceful protests, armed struggles, and international advocacy, have underscored the region’s desire for self-determination. This resistance has been met with severe repression, including the imposition of martial law, curfews, and restrictions on civil liberties. Despite these measures, the Kashmiri people's aspirations for autonomy, self-rule, and an end to external occupation remain unwavering.
The State Autonomy Committee Report of June 2000, which challenged the legitimacy of India’s claim of Kashmir’s accession, and the Gupkar Declaration of August 2018, which called for the restoration of Kashmir's autonomy, further highlight the Kashmiri people’s ongoing struggle for the right to self-determination. This resistance, combined with the legal principles enshrined in international law, strengthens the case for Kashmir’s sovereignty and its right to determine its own future.
5. The Role of Pakistan and International Support for Kashmir's Case
Pakistan, as a direct party to the Kashmir dispute, has consistently advocated for Kashmir’s self-determination in line with international law and the resolutions passed by the United Nations. The region’s Kashmiri Muslim diaspora, particularly the 2.5 million Kashmiri Muslim refugees residing in Pakistan, further reinforces the transnational nature of the dispute. The displacement of Kashmiris has created a global movement calling for justice and the recognition of Kashmir's status as a disputed territory.
The UNCIP Resolutions (United Nations Commission for India and Pakistan), which mandate the withdrawal of military forces from Kashmir, the demilitarization of the region, and the holding of a plebiscite under international supervision, remain key international documents. India’s continued military presence, its unlawful changes to the region's demographic makeup, and its disregard for these resolutions only serve to underscore the fact that Kashmir is not a fully integrated part of India but is instead under military occupation.
6. India’s Occupation of Kashmir: Legal and Moral Implications
The current situation in Kashmir, following India’s revocation of Article 370 in 2019, represents an unlawful occupation rather than legitimate governance. Under international law, an occupation occurs when a foreign power asserts control over a territory without the consent of its people, especially if such control is maintained by force. India’s military presence in Kashmir, along with its imposition of laws that alter the region’s political and demographic structure, fits the definition of occupation under international law.
By disregarding the will of the Kashmiri people, rejecting the principle of self-determination, and violating its international commitments, India’s control over Kashmir has moved from a legal claim based on the promise of a plebiscite to a de facto occupation. This not only violates Kashmir’s sovereign rights but also undermines the moral authority of India’s actions in the region.
Conclusion: The Strength of Kashmir's Case
India's legal case in Kashmir is fundamentally flawed. Kashmir's sovereignty and political status were not clearly resolved in 1947, and India's actions since then have been inconsistent with the commitments made to the people of Kashmir and the international community. The period from October 1947 to March 1959, when visa restrictions were imposed on Indian citizens visiting Kashmir, demonstrates that Kashmir operated with a high degree of autonomy, separate from India. The UN’s resolutions, India’s pledges to Pakistan, and the continuous resistance of the Kashmiri people all point to the fact that Kashmir remains a disputed territory.
India’s continued control over Kashmir constitutes an occupation, not a legitimate exercise of sovereignty. The international community, as well as the people of Kashmir, must continue to push for a peaceful, just resolution that respects Kashmir's right to self-determination. Until then, India’s actions in Kashmir remain in breach of international law and the foundational principles of self-determination and sovereignty.
Dr. Syed Nazir Gilani
President JKCHR
03.01.2025
One may comment directly on Dr Nazir Gilani's post on Facebook here
I was compelled to leave the following comment on this post:
There is clearly a strong legal challenge awaiting India from the people of #JKA in lieu of the former's legal claim and equally clear (in my understanding) is the absence of a legal claim by Pakistan.
In such a scenario, should not Pakistan move out of the way and let us
(the people of #JKA ) pursue our legal challenge of India's legal claim, already delayed by almost 8 decades?
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