Int’l law en­dorses Pak stand on Kash­mir

Pakistan Observer - - EDITORIALS & COMMENTS - S Qa­mar Afzal Rizvi Email:rizvipeac­ere­searcher@gmail.com

AKISTAN up­holds the right of the peo­ple of Jammu and Kash

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 self­de­ter­mi­na­tion, 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 self­de­ter­mi­na­tion 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.

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