THE corpus of customary international law is comprised largely of a collection of rules agreed to by the colonial powers who were interested in safeguarding their own imperial interests.
The International Law on the Acquisition of Territory is a prime example. At the Berlin Conference of 1884, European colonial powers agreed to divide up Africa amongst themselves by creating artificial boundaries that fundamentally ignored the pre-existing political order and territorial divisions in the region. Meanwhile, the customary international norm of uti possidetis was materialising under which sanctity of the new state’s boundaries is respected when they have been determined and delineated by former colonial rulers.
The British sale of territory to Maharaja Gulab Singh in 1846, under the Treaty of Amritsar actually gave birth to the Jammu and Kashmir dispute. This territory comprised an ethnically and linguistically diverse set of populations; the latter had traditionally lived under different political systems.
J&K became an independent princely state around the same time that Pakistan and India achieved independence. Because of uti posseditis, it became one indivisible territory, with the right of self-determination for its population as one group of people. Had J&K been part of British India, in all likelihood it would have been awarded to Pakistan. Here we must keep in mind the fact that Sindh was awarded in its entirety to Pakistan even though its Muslim population was relatively fewer than that of J&K in terms of percentage.
A diplomatic settlement of the Kashmir issue is needed.
Even if J&K had been partitioned along the lines of Punjab and Bengal, the Gilgit-Baltistan region, Azad Jammu and Kashmir, the entire Kashmir Valley and the adjoining areas, and a large section, if not all, of Ladakh would have been awarded to Pakistan. The Jammu division might also have been partitioned between India and Pakistan based on population demographics. Colonial opportunism thus gave rise to the Kashmir imbroglio — to Pakistan’s detriment.
The right to self-determination gained traction following the creation of the UN. In the 1960s and 1970s, numerous General Assembly resolutions, as well as the International Covenant on Civil and Political Rights, explicitly recognised this as a fundamental human right. As defined, this right pertains to ‘peoples’, though the latter term has never been clearly defined — perhaps because a broad definition of ‘peoples’ can challenge established international norms of state sovereignty and uti posseditis.
The most precise definition of ‘peoples’ until now is the one provided by the Permanent Court of International Justice, the predecessor to the International Court of Justice, in 1930. The PCIJ defined ‘peoples’ as “a group of people living on a delimited territory, possessing distinct religious, racial, linguistic, or other cultural attributes and desiring to preserve its special characteristics”. The Muslims of India-held Kashmir fully satisfy these requirements, including the Ladakhi Muslims who ethnically, linguistically and religiously are most closely associated with the people of Baltistan.
Under international law, the ‘peoples’ of J&K have been deprived of their inherent right of self-determination — a fact also recognised by numerous Security Council resolutions. In fact, the right of self-determination is far more established today than it was in 1947; progressive changes within customary international law triggered by the independence of colonised states and broader acceptability of the international human rights law regime by the overwhelming majority of states have ensured the development and acceptance of this fundamental legal principle.
Today, however, a diplomatic and negotiated settlement rather than a legal solution for resolving the Kashmir dispute appears more viable. What can be an alternative solution to the Kashmir dispute which would be acceptable to all parties? One possible option would be to recognise the Muslims of India-held Kashmir as one group of people. Muslim-majority territories in India-held Kashmir can thus separate or merge with Pakistan, while those parts of Jammu and Ladakh with majority non-Muslim populations could merge with India.
While it is hard to say whether such a solution will ever be on the cards, the necessary legal space for this to happen can only develop if the principle of uti posseditis is disregarded. While the marginalisation of this principle has not been the norm during international territorial divisions, in a small number of cases such a course of action has been supported by the UN.
In 1962, when there was consensus among the UN members that two entirely separate peoples were involved, the UN — through a plebiscite divided Ruanda-Urundi into two separate states. Likewise, the British Cameroons was also divided through a UN-supervised plebiscite, with the result that the Northern Cameroons was integrated with Nigeria while the Southern Cameroons voted to integrate with Cameroon.
It is high time that India, Pakistan and Kashmiri leaders sat down to try and assess whether alternative ways of resolving this dispute can be better explored.
The writer is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums.
Published in Dawn, April 7th, 2016