This essay is co-written with Oxford DPhil candidate Ameya Pratap Singh.
Emperor Jahangir Hunting with Hawks, Mughal dynasty, late 17th century. Source: The British Museum.
Justifications of India’s claim to territorial sovereignty in Jammu & Kashmir—both from practitioners and commentators—have surprisingly either been muted or entirely passed over. Officially, India has vociferously asserted that J&K is an inalienable part of India, and, so far, denied any international third-party mediation or arbitration. This policy has certainly offered some patchy success for New Delhi, as even Pakistan’s allies, such as Saudi Arabia, no longer seem willing to do its bidding at forums such as the OIC. In fact, with the return of geopolitics and refocusing of Western energies towards China, India’s leverage on the J&K issue has reached unprecedented proportions vis-à-vis the international community. The lack of stigma on the de facto repeal of Article 370, and the consequent clamp down on civil liberties in J&K is evidence enough. Outside China and Pakistan’s understandably contrived protestations, there has been little global interest to discuss what India does domestically. So far so good? Well, not entirely.
There has been one major shortcoming in this approach. Since New Delhi refuses to discuss the J&K issue entirely, both domestic and international public discourse has been starved of a sincere discussion on the merits of India’s legal claim to J&K. This has led to an iniquitous and false equivalency being drawn between Pakistan and India’s claim to J&K. Unfortunately, even for the most neutral on-lookers, the dispute has come to represent an intractable territorial contest between two adversaries who simply cannot agree on the distribution of Partition’s spoils. We could well argue, that since Sisir Gupta’s Kashmir: A Study in India-Pakistan Relations (a book we highly recommend to our readers) there has been no attempt to uncover the strength of India’s legal claim to the disputed territory. That is what we aim to provide here: a sound legal reasoning for the merits of India’s claim to J&K.
Before we begin to do so however, a few clarifications are in order. First, we are not advocating for India to rely on international law to resolve the dispute with Pakistan. As the ill-fated appeal to the UNSC in 1947 amply demonstrated, such dispute resolution mechanisms can neither guarantee the bona fides of those who are in privileged positions of judgement, and nor can they mitigate the mistrust between rivals and the insecurities of compromising vital state interests. Illuminating India’s legal position is vital to inform public discourse and remedy the historical register rather than offer policy solutions. Secondly, this article does not attempt a scrutiny of Government of India’s policy in J&K. While important, this enquiry is simply beyond the scope of this article as policy successes or failures do not determine the legality of territorial claims. Instead, this article addresses the contrasting the legal positions of India and Pakistan. It is argued that Pakistani occupation of J&K by the use of force is illegal under international law, and bars Pakistan from claiming title to the territory.
Under international law any legal right or claim to territory emanating from illegal possession of land cannot be sustained. The internationally recognized Latin maxim of ex injuria jus non oritur, which roughly translates to “a right does not arise from wrongdoing”, prohibits an aggressor from claiming title to the occupied territory. Prohibition on the use of force is a peremptory norm in international law, i.e., no derogation from it is permitted. The doctrine of ex injuria is intricately linked to the prohibition on the use of force and thus bars title to any territory occupied by using force. States have long adhered to this doctrine in their foreign policies and practiced non-recognition of forcefully occupied territories. The Tobar Doctrine of 1907 and the Stimson Doctrine of 1932 are both based on the non-recognition of territories which are occupied or acquired by force. In response of the Japanese conquest of Manchuria, US Secretary of State Stimson wrote to the governments of China and Japan, stating that the US “does not intend to recognize any situation, treaty, or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris of August 27, 1928”. The international community followed suit and the League of Nations, condemned Japanese action, declaring it illegal. The resolution adopted by the League stated that “it is incumbent upon the Members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris”.
The use of force to settle disputes is also condemned in numerous pacts and treaties, including the 1928 Kellogg-Briand pact. Parties to the 1933 Anti-War Pact of Non-Aggression and Conciliation had agreed not to "recognize any territorial arrangement which is not obtained by pacific means, nor the validity of an occupation or acquisition of territory brought about by armed force." The resolution adopted by the Conference of American States at Lima, Peru, in 1938, and the Bogota Charter of the Organization of American States of 1948, also agree that "No territorial acquisitions or special advantages obtained either by force or by other means of coercion shall be recognized”. Further, the Draft Declaration on the Rights and Duties of States 1949 proposes that every State is to refrain from recognizing territorial acquisitions obtained through force or the threat of force”. The ‘Panchsheel Agreement’ of peaceful co-existence, signed between India and China in 1954 also renounced violence as a means of settling disputes. Resolution 42/22 of the United Nations General Assembly also reaffirms that “neither acquisition of territory resulting from the threat or use of force nor any occupation of territory resulting from the threat or use of force in contravention of international law will be recognized as legal acquisition or occupation”. The two World Wars and the subsequent Nuremberg and Tokyo trials, and the Charter of the United Nations were pivotal in outlawing aggressive war, and codifying international law barring the use of force. Even post-war treaties like the Treaty of San Francisco signed by 49 nations, addressed the fate of forcefully occupied territories and required them to be returned in addition to reparations by the aggressor state.
Historically, it is indisputable that Pakistan’s claim to Kashmir rests on its continued and forceful occupation of J&K, and is not grounded in any international agreement or law. This can be contrasted with India’s claim to J&K, which is grounded in a legal instrument, namely, the instrument of accession (IOA) signed by the Maharaja of J&K. Pakistan has raised doubts about the validity of the IOA but these are also untenable. The Maharaja of Jammu & Kashmir—with whom the exclusive authority to decide J&K’s future rested as per the Government of India (GoI) Act 1935—signed an instrument of accession with India after Partition. IOAs were recognized as legitimate means of accession by both India and Pakistan. Accordingly, the IOA signed between India and the Maharaja of Kashmir was the same as all other instruments signed between princely states and the two Dominions. IOAs were unconditional and allowed the concerned Government to legislate on matters pertaining to external affairs, defence and communications. The Maharaja, therefore, wilfully integrated his entire state with the Dominion of India, thus allowing India to stake claim to J&K (which includes the present day Union Territories of Jammu and Kashmir, and Ladakh). Under the Government of India Act, 1935, only rulers of princely states were legally recognised sovereign authorities.
Therefore, the argument that Pakistan-inspired local raiders could be used as a smokescreen to challenge the legitimacy of the Maharaja is legally dubious. The yardstick of ‘effectiveness’ had been renounced as a measure of state sovereignty after the Manchuria case before the League of Nations. No local rebellion could dissolve the sovereign powers of the Maharaja of J&K. This does not make the IOA absolute and binding on local populations—as we will discuss shortly—but it does divest Pakistan of a legitimate excuse to use force in J&K. The Maharaja had indeed become unpopular (even the Nehru Government quickly replaced him with Karan Singh), but these local tensions cannot be used as grounds by a neighbouring state to occupy territory.
Let us take you through the sequence of events: When the Maharaja was bidding time to decide the fate of J&K, Pakistan had sent a warning note to the Maharaja stating that “the time has come for Maharaja of Kashmir that he must make his choice and choose Pakistan. Should Kashmir fail to join Pakistan, the gravest possible trouble [would] inevitably ensue.” This had alerted the Maharaja, and as he continued to stall, a revolt—instigated by the Pakistani Government—began in Poonch. Fears of Pakistan taking control of J&K by force were affirmed when several thousand tribesmen armed with heavy artillery attacked J&K on 24 October 1947, and marched to Srinagar—the capital of J&K. General Akbar Khan of Pakistan later confirmed that the armed attack was initiated by the Pakistani government in furtherance of a plan titled “Armed Revolt in Kashmir”. These tribesmen, armed and sent by Pakistan managed to capture swathes of territory, which still remain under the control of Pakistan and constitute what is known as Pakistan Occupied Kashmir. Essentially, prior to the formal accession of J&K into India, Pakistan had already managed to capture and occupy parts of J&K through the use of force.
In a desperate attempt to save his state, and out of fear for his own life, the Maharaja of J&K approached the Government of India, and agreed to sign the Instrument of Accession. The execution of the IOA by the Maharaja in October 1947 and its acceptance by the Governor-General of India had completed the necessary formalities and formally integrated the state of Jammu and Kashmir into India. Upon such accession and in response to Pakistan’s support to the raiders, India was obligated to defend J&K. In fact, Governor General Louis Mountbatten had refused to allow Indian armed forces to enter J&K until the IOA was signed. On the other hand, Pakistan, even in the absence of any accession agreement sent its formal army to J&K and consolidated control over territory captured by the raiders. Eventually, a limited war broke out between India and Pakistan in J&K between 1947-48, and was only brought to an end after both states had reached a military stalemate and acquiesced to a UN mediated ceasefire line and US sanctions.
Prima facie, the IOA stands as a lawful agreement between two parties and is thus recognized under law as a legitimate means of accession. However, despite the execution of the IOA, the Government of India, proposed in November 1947, to conduct an impartial plebiscite under the auspices of the United Nations. This was in consonance with the “democratic tests” implemented in provinces whose desire to join India or Pakistan was dubious. The precedent had been set in Junagadh, where the Nawab wanted to accede to Pakistan despite being landlocked by India and ruling over a Hindu-majority population. Eventually, after a long delay, the India had to send in its military force to prevent Pakistan’s overtures. But still, a plebiscite was held and was overwhelmingly won by the Indian government. At least initially, Nehru was confident of India’s chances in a plebiscite due to the popularity of the Sheikh Abdullah-led National Conference in J&K. However, it was Jinnah, who rejected the idea of a plebiscite, stating “it was redundant and undesirable to have a plebiscite when it was quite clear that states should go according to their majority population…”. Jinnah was afraid that if the plebiscite was held while Sheikh Abdullah was Prime Minister of J&K (the Maharaja had appointed him soon after signing the IOA), Pakistan’s chances were reduced. He wanted to concede an equal share in the government to the Pakistan friendly Muslim Conference as a pre-condition for the plebiscite.
In J&K’s case, Nehru felt compelled to take the issue to the UNSC due to the fear that Pakistan would make such an appeal anyway. In such a situation, the opportunity to frame the case against Pakistan as the aggressor would be yielded. Accordingly, Nehru handed over a note to Liaquat in December 1947 “formally requesting Pakistan to pull back the raiders; alternatively, India would approach the UN”. Upon Pakistan’s subsequent failure to withdraw its forces and to deny assistance to the raiders, India approached the UNSC under Article 35 of the UN Charter on the limited question of Pakistan Government’s intervention in J&K, which threatened international peace and security, and to hold Pakistan as an aggressor. The UNSC, through resolution 47, proposed to settle the future of Kashmir “in accordance with the will of the people” provided “Pakistan removed its troops from Kashmir and secured the withdrawal of tribesmen and Pakistani nationals”. To understand the logic of India’s UNSC appeal, we quote Nehru:
Nehru, in his cable to Liaquat Ali Khan on 24 July reaffirmed that “nothing in the way of a plebiscite could possibly take place until Pakistan had vacated its aggression in Kashmir by withdrawing all forces from the disputed territory. “The question of Kashmir”, Nehru said in another cable to Liaquat Ali Khan on 29 July 1951 “would have been decided peacefully long ago in accordance with the wishes of the people there had it not been for the major fact that Pakistan first encouraged, and then actively taken part in violent aggression against the State and its people. This offence against the norms of international behaviour should be set right”
The failure by Pakistan to meet the first condition rendered the fulfilment of conditions for a plebiscite impossible and resulted in a long-term impact to the demographic of J&K, rendering even the possibility of a future plebiscite void. Secondly, the approval by the Jammu and Kashmir Constituent Assembly represented the will of the people as the Constituent Assembly was a democratically elected body representing the people of J&K, and thus fulfiled the requirement of the “democratic test”. Through its aggression in 1947, and the continued deployment of terrorism as state policy, Pakistan has denied the people of J&K the ability to decide their fate via a plebiscite. It cannot therefore be claimed that India’s legal claim remain incomplete indefinitely because of Pakistan’s refusal to account for its aggression. To deny India’s claim on these grounds is to legitimise aggressive military action.
The captured territory still under the occupation of Pakistan is illegal under international law. In this regard, in addition to international practice and numerous treaties and conventions, the jurisprudence developed by international courts and tribunals deciding on issues concerning the use of force to occupy territory is instructive. The tribunal for the boundary in Brcko Area while deciding on the territorial dispute between The Republika Srpska and The Federation of Bosnia and Herzegovina, held that the “non-recognition doctrine…is based in part on the principle of ex injuria jus non oritur, according to which acts contrary to international law cannot become a source of legal rights for a wrongdoer”. The Tribunal went on hold that the doctrine precludes The Republika Srpska “from asserting a legal right, based on their conquest, to control — sovereign, administrative or otherwise — of the disputed area…”. Further, the International Court of Justice, in its advisory opinion relating to the Wall in Palestinian Occupied Territories has also shown inclination to fighting “fait accompli in order to preclude the unlawful situation from being consolidated”. The Court stated that “the construction of the wall and its associated regime created a fait accompli on the ground that could well become permanent, and hence tantamount to a de facto annexation”. The opinion concluded that “Israel could not rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall, and that such construction and its associated regime were accordingly contrary to international law”. Pakistan’s armed intervention—irrespective of its motivations—is by itself an attack on the sovereignty of another state, and thus, it can in no case be used to justify continued occupation.
The most recent example of non-recognition of territory occupied by force is Russia’s illegal annexation of Crimea. The United Nations was quick to rebuke the act by Russia, and passed Resolution 68/262 on the “Territorial integrity of Ukraine”. France delegate to the UNSC stated that “to accept the annexation of Crimea would be to give up everything that we are trying to build in this Organization. It would make a mockery of the Charter of the United Nations. It would once again make the sword the supreme arbiter of disputes”. Common practice among nations, writings of scholars, the non-recognition of the occupied territories of Manchuria and Crimea, and the judgements of international tribunals including the arbitral award in Brcko Area case and the ICJ’s opinion in the Wall in Palestinian Occupied Territories, make the position of international law vis-à-vis forcefully occupied territories abundantly clear. To accept Pakistan’s claim to J&K would amount to crystallizing an illegal act and a gross violation of international law. In furtherance of the doctrine of ex injuria jus non oritur, which serves as a bulwark against injustice, Pakistan’s claim to the occupied territories of J&K cannot be sustained. For states “non-recognition should be considered as a customary obligation deriving from an already well-established practice”. To recognize Pakistan’s claim to the territory on the basis of possession would amount to, as James Crawford puts it, international law’s unilateral disarmament. Sadly, when the Kashmir dispute arose in 1947, not many members of the international community cared to understand South Asia’s complex histories. Thus, Pakistan’s early propaganda efforts, particularly in Washington, provided outsized rewards. Lazy orientalists reduced state sovereignty in J&K to a question of religious composition. But, nothing could be further from the law.
Urvi Tembey is an international lawyer & Ameya Pratap Singh is a PhD student at the University of Oxford and the founder and managing editor of Statecraft, a global affairs daily https://www.statecraft.co.in