This paper seeks to analyse the possibility of a claim brought by Pakistan over the longstanding territorial conflict in Kashmir with India. Firstly, a brief historical background of Kashmir will be provided, proceeded with the legal attributes of the International Court of Justice (“ICJ”) followed by a discussion on the legal aspects of a territorial claim by Pakistan with hindsight of case law.

1. Jammu & Kashmir Background

Kashmir is currently the reason for the everlasting feud between the two nuclear power states. It started in August 15, 1947, when both the nations came into being following the Indian Independence Act which subsequently partitioned British India[1]. The process of partition loudly exclaims upon the fact that Britain had not prepared for such an exercise[2]. Many authors and commentators take Kashmir as a prime example of how Britain failed to procure an adequate means of accession for the princely state into independent India and Pakistan[3].

Kashmir, in essence, consists of 5 regions; the “valley” of Kashmir which consisted of a 90% Muslim majority, the Jammu province which prevailed with a 59% Hindu majority, the Poonch province which also contained a 90% Muslim majority and the predominantly Muslim Gilgit region in the northwest[4], which is now an administered territory of Pakistan. This paper, however, will mainly focus on the contention of the Kashmir dispute and not the Gilgit region.

During 1947, Kashmir’s economy was closely tied with that of Pakistan[5], its sole passage and communication with the outside world was laid through Pakistan by the road to Srinagar and the Indus River. Even the Maharajas summer capital was Rawalpindi, Pakistan[6]. These were the prime routes utilised for a majority of Kashmir’s exports[7]. The waters of river Indus, Jhelum and Chenab all brought great life to the agricultural economy of Punjab thus if the partition were to be based on culture and economy, a large chunk of Kashmir would have undoubtedly been granted to Pakistan. However, unfortunately for Pakistan, Kashmir with an overwhelming majority of Muslims was controlled by the Hindu Dynasty known as Dogra Rajputs[8].

At the time of partition, the Maharaja of Kashmir could not decide whether to accede to a state or to remain independent[9]. Thereon, the Maharaja entered into a standstill agreement with Pakistan which entailed that Pakistan would perform various administrative duties within Jammu and Kashmir such as the post, telegraph and the railway from India to Pakistan[10]. However, the Poonch province then experienced a number of revolts against the Maharaja, due to this a large number of Hindus and Sikhs crossed from Punjab into Jammu and initiated a series of massacres which resulted to a death toll of over 200,000 Muslims[11]. This turn of event instigated the Pathan tribesmen to invade Kashmir on October 22^nd[12]. Both India and Pakistan blame each other for these uprisings and these turn of events led the Maharaja to execute the Instrument of Accession with India[13] which led to Indian Troops entering Kashmir and pushing the tribesmen back.

With the negotiations failing between the two states to settle the Kashmir dispute, India brought the matter to the attention of the Security Council on January 1^st 1948[14] under Article 34 and 35 of the U.N Charter[15], accusing Pakistan of giving assistance to the invading forces. In turn, Pakistan filed counter charges under Article 35, claiming that India had carried out attacks on Pakistani territory and had violated numerous international agreements[16].

Resultantly, the Security Council formed the United Nations Commission on India and Pakistan through Resolution 39 (“UNCIP”) and passed resolution 47 which mandated that I) Pakistan should ensure a withdrawal of the tribesmen, ii) India should minimise its forces and maintain law & order, iii) UN Secretary General should appoint a plebiscite administrator who would act as an administrator of Jammu and Kashmir. Unfortunately, this resolution has not borne fruit to date as India and Pakistan have fought[17] two wars over Kashmir after the passing of this resolution.

2. International Court of Justice

ICJ is the principal judicial organ of the United Nations which adjudicates upon a wide ambit of matters (e.g. the Khulbushan Yadav case between India and Pakistan) that are referred through for instance, a compromis between two or more states. It also provides advisory opinions to authorized UN organs and specialised agencies.

When the ICJ settles cases in congruity with International Law, the Court hinges upon certain sources of law under Article 38 of the ICJ statute which are international conventions, customs, recognized general principles of law, case law of international tribunals and the teachings of most highly qualified authors.

Under the sphere of international adjudication, territorial claims have generally been asserted through nine categories, particularly, in front of the ICJ. These are as follows; treaties, geography, economy, culture, effective control, history, uti possidetis[18], elitism and ideology[19]. Preference is however given to treaty law, uti possidetis, and effective control[20].

This paper will focus upon four claims, namely; cultural claims, effective control, historic claims and effective control.

3. Cultural Claims

This claim has its foundation laid on the ethnic nation notion, which subjugates that due to a common language, kinship or other cultural characteristics that reasons the existence of a group of people in a particular location[21], thus they have a right to claim that territory. Cultural claims are also of the notion that it creates a “sense of belonging” for the people[22].

Pakistan can utilize this claim to contend the view that the occupants of the disputed territory have the “same national background and aspirations” as themselves[23]. In this regard, cultural claims are also conjoined with the notion of self-determination[24] which allows the territory to be drawn up as per the national groups confined in that specific area[25] and is a right that is recognized under International law and codified within, inter alia, the International Covenant on Civil and Political Rights 1966.

3.1 Cultural Claim in the Context of Kashmir

The main basis for indepdence of Pakistan was based upon the two nation theory i.e. separate state for both Hindus and Muslims. During that time, the majority of land that consisted of a pre-dominant Muslim population was acceded to Pakistan. In light of that, Kashmir being a pre-dominantly Muslim population[26] has at the very core of its roots cultural and religious values that align with those of Muslims within the sub-continent[27]. In the backdrop of this claim Pakistan could argue, that Kashmir being a Muslim majority has a deeper connection and attachment to a Muslim state as opposed to a Hindu state. This argument can be further by highlighting the persecution that is occurring in the Indian Occupied Kashmir and the deprivation of civil rights within the region which escalated further after the death of Burhan Wani[28] in 2016.

4. Effective control

It is no doubt that effective control is of a sine qua non nature and plays a crucial role in the matter of territorial claim[29], just as under the law of property possession is of an imperative necessity for the assertion of property rights[30].

In this regard, Professor Andrew Burghart has put forward a twofold question for such claims (1) what constitutes an abandonment of the land by the last governing entity and (2) what constitutes administration of the land[31].

The condition of “Abandonment” is highly debatable between scholars, some are of the notion that the land be considered terra nullius[32] (a territory that does not belong to any country).

The administration of the land needs to be defined here as well. Professor Hill states that “the establishment of governmental control [which is] sufficient to provide security to life and property[33]”. Moreover, the occupation has to meet the requirement of being real or “effective” at a minimum. This is only seen to be valid when there is a known or declared intention to assert governmental authority through acquiring an area[34].

Professor Burghardt further enhanced the condition by mentioning that the administration must be of great diligence, as the natural resources of that area should be developed and used[35].

4.1 Effective Control in the Context of Kashmir

All the aforementioned conditions are necessary for effective control in an attempt to legitimize the title of an occupied territory. That being said, under the lens of IHL the law paints a different and contrasting Picture.

International Humanitarian Law defines 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”[36]. According to the on ground situation in Kashmir, India has a presence of 500,000 to 700,000 Indian troops as cited by civil media[37]. Moreover, the troops have been known to resort to violent means to supress the voices of the people which includes mass shootings by pellet shotguns containing metal rounds[38] that resulted in the death of 17 people[39] and 1726 injuries with 728 eye injuries[40] during the period of 2016-2018.

Furthermore, effective control is the central element of occupation[41] which is inherently the effectiveness of the control exercised by the foreign forces that exert authority[42], through their unconsented-to and continued presence in the territory that sets off the application of the occupation law[43]. Effective control is also seen to be a question of degree, thus it will depend upon the terrain, the density of the population and other considerations[44]. Therefore, it can safely be concluded that the presence of Indian troops in the territory of Kashmir constitutes, for the purposes of International Humanitarian Law, an occupation.

The current population of Indian Occupied Kashmir is 12.5 million people, with the above cited amount of troops deployed by India, it roughly equates to 1 soldier for every 17 individuals, this led to over 1,000 people being detained under the Jammu and Kashmir Public Safety Act 1978[45] (“PSA”), access to medical services was impeded along with communication blockades, which not only affected the civilian populations but journalists also had their freedom of expression curtailed[46].

The Armed Forces Special Powers Act 1990 (“AFSPA”)[47] also gives untethered powers to the security forces, granting them immune from public prosecution for any human rights violation.

These actions in India occupied Kashmir demonstrate a clear unencumbered control exercised by the Indian forces which is not only a violation of International Humanitarian Law as its illegal occupation but also prove to be contrary to effective control occupation whose conditions aforementioned are clearly being breached as the government of India is committing grave violations rather than acting diligently or developing the natural resources[48].

4.2 Case Law Analysis in lieu of Effective Control

In the case of Minquiers & Erechos[49] the court relied upon effective control and granted the territory to Britain since it had exercised judicial proceedings, levying taxes and dealing with various daily matters. In the case of El Salvador and Honduras[50], the court based its decision upon effective control in lieu of uti possideti[51] and considered two factors, the parties conduct after independence and the parties’ most recent conduct. Thus the decision was awarded to whichever party had exercised the most postcolonial effective control.

In the case of Cameroon V Nigeria[52] the territory was awarded to Cameroon once the court dwelled into the pre-independence colonial actions, and found the 1929-1930 Thomson-Marchand Declarations which United Kingdom and France acknowledged and provided a detailed incarnation of the border[53]. The court wholly relied upon treaties and agreements, albeit the court acknowledged that the treaty was imperfect and did not resolve the boundary issue in whole, however, it nonetheless superseded Nigeria’s claim on effective control and disputed territory[54].

Thus construing from the case law, India is exercising illegal effective control over Kashmir, which is greatly in conflict with international law as India is supressing and breaching fundamental rights of civilians and committing atrocities rather than uplifting the socio-economic life of the people, therefore furthering the claim of Pakistan who intends to uphold the rights of Muslims and provide the people of Kashmir with an economically and socially strong way of life.

5. Historic Claims

Historical claims are usually twofold, they can either be based upon historical priority (first to occupy) or time period (length of occupation)[55], albeit effective control is deemed to be the strongest claim.

Historical claims are none the less seen to be the most common in territorial claims[56]. They are further augmented by the passage of time, if the encroached title holder does not oppose the occupier, it is deemed to have acted docile and forfeited its territory with consent[57]. Historical titles usually arise because the claimant country asserts that the land rightfully belongs to them[58].

Historical claims are profoundly interlinked with cultural claims, the greater the cultural heritage of the territory, the stronger the claim would be to it. This is predominantly significant when the claimant asserts that the territory they wish to claim is their “ancestral homeland”. Professor Bughart phrased it as “The closer the identification of the group with the soil, the more powerful the pretensions[59]”, the current Palestine conflict could not outline this matter any better.

5.1 Historical Claim in the Context of Kashmir

As mentioned above, Pakistan and Kashmir both enjoy a deep history of heritage, culture and religion with each other[60]. Furthermore, the accession to India from Kashmir is also highly controversial, since on the night of partition the Maharaja had imprisoned both the leaders of the Muslim Conference and the National Conference[61], moreover, a month prior to the accession, Shiekh Abdullah was released from prison and given the leadership of Kashmir by the Maharaja. Shiekh Abdullah was strongly influenced by the Indian National Congress[62]. Therefore all these actions greatly minimized the voices of Muslims at the time of independence.

Pakistan holds great association with the population of Kashmir due to its dominant Muslim population and interlinked cultural practices, languages and way of life, as elaborated beforehand. Pakistan has also been greatly emphasizing upon the atrocities committed by Kashmir in the global forum and has granted full access to the High Commissioner for Human Rights[63] whereas India till date has denied any access to them.

Pakistan intends to rightfully assert control over its merited territory of Kashmir with a Muslim Majority which has for years been a victim of perpetual violence in the hands of India.

6. Uti Possidetis

This principle encompasses the postcolonial boundaries in Latin America, Asia and Africa[64]. This doctrine enables newly independent states to inherit their rightfully owned pre-administrative boundaries laid out by the former colonial power[65]. This doctrine entrenches the notion of transferring colonial territory to the local authorities[66], and triumphs over other claims based on occupations[67].

However, uti possidetis has been criticized on the basis that administrative colonial borders were inaccurately drawn[68] and did not reflect the inhabitants populous, thus reliance on this notion may lead to a furtherance of complication in border disputes[69]

6.1 Uti Possidetis in the Context of Kashmir

As this notion places great reliance upon the fact that states should acquire their rightful territory which were negligently executed by colonial power. In Kashmir, the instrument of accession is arguably the only valid treaty per se that dictated the terms upon which Kashmir is to be distributed between the two nations. However, as previously mentioned that instrument itself is seen to be controversial. As it will now be further elaborated;

If the general rules of treaties were to be applied in the current scenario, they are divided into three parts, a) the text of the treaty expressing the agreement, b) the intention of the parties and c) the objective of the treaty[70]. The chief reason for the accession to be conducted is undoubtedly the unrest that was caused in Kashmir at that time period. Upon accession Lord Mountabatten, the Governor-general, stated in his letter that once law and order is settled the peoples will would be upheld[71]. This letter should be regarded in the context of the treaty as it further signifies the intention for the execution of the treaty thus giving further meaning to the terms of accession[72]. This was also further reaffirmed by Indian Prime Minister, Jawaharlal Nehru’s radio broadcast on November 2^nd, 1947, Nehru stated that the fate of Kashmir was to be ultimately to be decided by the people[73].

Therefore it is evident that Kashmir has been wrongfully placed in India as the treaty of accession has been negligently executed in favour of India due to the prevailing situation at the time of partition. Furthermore, the purpose of the treaty which promised to uphold the will of the people through a plebiscite has till date not occurred. Hence, Pakistan deems to have a strong claim under this notion as not only were the territorial border unfairly drawn, but the condition upon which they were executed have not been fulfilled.

6.2 Case Law in lieu of Uti Possideti

In the matter of Frontier Dispute of Burkina Faso and Mali[74], due to a lack of valid title, the court gave preference to ascertainable evidence and upheld Burkina Faso’s 1932 border. Uti possideti and Equity infra legem were the courts lodestar in this matter. Therefore, Pakistan’s reliance upon this case will enable it to guide the court onto prioritising the prevailing circumstances of the Kashmir situation, giving preference to the fact that Kashmiri Muslims have been acceded into India by a coerced treaty and the obligations of the treaty still have not been fulfilled.

Conclusion

The everlasting standstill between both the nuclear nations over the Kashmir dispute needs to be settled in order to not only bring peace to the region as a whole, but also bring harmony to the people of Kashmir which they have long aspired for. Pakistan deems to have a strong route succession of the territory of Kashmir by virtue of the above mentioned legal possibilities.

However, an alternate is also available to conclusively and peacefully settle the dispute, as can be seen in the case of Burkina Faso and Mali, both the nations can agree to limit the ICJ’s decision and scope solely to the border dispute, whilst protecting the status of Kashmiri people. This could prove to be quite impactful if the court were to decide the case ex aequo et bono[75] by inter alia considering external factors of the dispute. This route would not only arbitrarily settle the matter peacefully for both the nations but also preserve the determination of the Kashmiri people in accordance with their will

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