I have, in my book, Unravelling the Kashmir Knot, relied primarily on declassified British archives to establish that the partition of the Indian sub-continent was scripted by the British for their geo-strategic interests during its ‘Great Game’ with the then Soviet Russia, and to prevent Russian influence from travelling southwards towards the oil-rich Middle East. The book explains how the Kashmir issue was an end-product of this British strategy. Such narrative points out that both modern day India and Pakistan are creations of British statutes - the Indian Independence Act of 1947, and the modified Government of India Act of 1935 – that reflected the partition plan declared by the British on 3 June 1947. As per these statutes, all princely states were to regain full sovereignty and such sovereignty vested in the ruler, regardless of the religious complexion of the people of the state concerned. It was the ruler alone who could decide to accede to India, Pakistan or remain independent. These British statutes were accepted by both India and Pakistan. Indeed, there is no doubt about the legitimacy of the states of India and Pakistan created by such statutes, and that such statutes comprised the constitutional law governing both India and Pakistan.
The sovereign ruler of J&K unconditionally acceded to India on 26 October 1947 in the manner prescribed under such constitutional law. However, New Delhi viewed the accession as being ‘purely provisional’ and subject to the wishes of the people, having followed such policy in case of the disputed accessions of Junagadh and Hyderabad. By doing so, New Delhi overlooked that once a political decision (the partition agreement) had been crystallized into law (the British statutes), the executive created by that law cannot act contrary to the terms of that very law. It is well settled that a state cannot, by making promises, clothe itself with authority which is inconsistent with the constitution that gave it birth. The constitutional law creating modern day India mandated that it was only the sovereign ruler who could decide on the accession of his state. New Delhi had no power to lay down a contrary policy that such accession would be decided by the wishes of the people. Again, since the accession of J&K to India by its ruler was in terms of the same constitutional law that also created Pakistan, it would be fair to say that the law that gave birth to Pakistan itself made J&K a part of India. Moreover, it is not open in international law for a state (Pakistan) to challenge the accession made by a sovereign state (J&K) to another sovereign state (India), such accession being an Act of State. The ruler of J&K has never challenged the accession as being fraudulent or based on violence. As a result, not only was New Delhi’s ‘pledge’ in 1947 of holding the plebiscite in J&K unconstitutional and not binding on India, the UNSC resolutions of 1948 to hold a plebiscite were themselves without jurisdiction and in violation of the UN Charter as further explained in the book.
Given that it was New Delhi that conferred the ‘disputed territory’ tag on J&K, it is imperative for New Delhi to confirm, as it were, its title deeds to J&K. The only body in existence whose pronouncement will be considered as being authoritative and having legal effect on the international community is the principal judicial organ of the UN, namely, the ICJ. Since India is entitled in law to the entire territory of J&K, it lies in India’s interest to have the ICJ examine the Kashmir issue, regardless of the issue of enforceability of ICJ decisions or the spectre of global realpolitik. While the Kashmir issue is certainly a political one, it is possible for New Delhi to separate the legal from the political aspect of the issue, so that to vindicate its claim to J&K based on legal rights. If the ICJ gives a verdict in India’s favour, and it is likely to do so in view of the legal principles formulated in the book, the very presence of Pakistan and China in the territory of J&K would constitute ‘aggression’ under international law, and the international community would be under an obligation to put an end to that illegal situation as illustrated by the 1971 ICJ decision in Namibia. Moreover, in the unlikely event that the ICJ decides against India by opining that the future of J&K will be decided by the wishes of the people, New Delhi can still fall back on its stand that the people of J&K have endorsed the accession of J&K to India, as is evident from the resolution of 15 February 1954 of the elected state Constituent Assembly.
It is true that law alone cannot resolve the Kashmir issue, but a confirmation of the correct legal position by the ICJ will help, in the first instance, to alter the current political discourse on Kashmir. New Delhi must, of course, also take the remedial measures detailed in the book to undo past mistakes in order to regain its moral authority to be in J&K.
The views and opinions expressed are those of the author and do not necessarily represent those of The Royal Commonwealth Society.