This month the Indian ministry of home affairs released the draft of the proposed Geospatial Information Regulation Bill, 2016. Still in its preliminary form, it has created a furore both at home and abroad.
The bill aims to regulate “the acquisition, dissemination, publication, and distribution of geospatial information of India which is likely to affect the security, sovereignty, and integrity of India”, and proposes severe penalties for the ‘incorrect’ depiction of the ‘territory’ of India by persons ‘within’ India or Indians living abroad.
The bill represents a broad undermining of international law and a violation of the bilateral arrangement vis-à-vis Kashmir. Pakistan’s ambassador to the UN, Maliha Lodhi, has raised concerns with the secretary general and Security Council that the bill seeks to unilaterally depict the disputed territories of Jammu & Kashmir (J&K) as being within Indian territory, and to punish those representing the correct scenario.
The Line of Control (LoC) is the current demarcation of territorial control within Kashmir. First established under the 1949 Karachi Agreement, it was further reified in the 1972 Shimla Declaration under which Pakistan and India agreed that the “line of control resulting from the ceasefire of Dec 17, 1971, shall be respected by both sides without prejudice to the recognised position of either side. Neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations”.
The draft bill is another attempt by India to absorb J&K.
It further states that “[p]ending the final settlement [...] neither side shall unilaterally alter the situation and both shall prevent the organisation, assistance or encouragement of any acts detrimental to the maintenance of peace and harmonious relations”.
The LoC is reproduced in UN maps, along with a legend describing it as agreed upon under the Shimla accord, with J&K’s final status remaining in dispute. While official maps published by the Survey of Pakistan do not reproduce the LoC, they correctly depict J&K as disputed. By contrast, the official Survey of India’s maps incorrectly depict the entirety of J&K — as well as Gilgit-Baltistan — as Indian territories.
Pakistan ought to adopt the UN’s practice of marking the LoC on its own official maps with a legend unequivocally declaring the status of J&K as being undecided. Rather than compromising the Kashmiri cause, this would, instead, clearly state the ground realities: that the LoC exists and shall be recognised until such time as the territorial status of J&K can be resolved. This is critical; under international law, while official maps might not conclusively resolve a boundary dispute between two states, they nonetheless have probative value, and can be relied upon by states when attempting to advance their positions.
The proposed bill is yet another attempt by India to unilaterally assimilate J&K contravening international law. That the territorial status of Kashmir is unresolved is not in dispute; however, India, by its recent actions, has sought to force a resolution of the situation to its own benefit.
The attempt to construct a fence in India-held Kashmir — also violating international law — is an example of India’s unsettling tendency to chip away at provisions of previous agreements. This latest attempt to undermine recognition of Kashmir’s status is another instance of India violating the Shimla pact — in spirit and in operative text. The accord is intended to maintain the status quo until a permanent solution is devised. The bill seeks to unilaterally alter this.
From a historical perspective, the Karachi Agreement was a multilateral one, mediated by the UN; the Shimla pact concluded as a bilateral arrangement, with India choosing to expel the UN Military Observer Group in India and Pakistan and maintaining that the Kashmir issue existed wholly between the two countries. Now it seems India is taking steps to force a permanent resolution — one entirely for its own benefit, at the expense of the Kashmiri people, and in violation of international law.
Kashmiris’ right to self-determination has been recognised under international law and sanctified by numerous UN resolutions. However, under this bill those living in India-held Kashmir can face criminal penalties for portraying that J&K’s territorial status remains unresolved, or be forced to accept the version of ‘truth’ imposed by India — all of which runs counter to self-determination and its peaceful furtherance.
Under the international law for boundary delimitations, the doctrine of ‘acquiescence’ can come into play: if one state party knowingly does not raise objections to the other’s illegal act, it can be seen as having acquiesced to the other party’s illegalities. Pakistan should strongly protest the bill — which goes beyond the scope of domestic lawmaking into the realm of international law — to ensure that India does not subsequently claim Pakistan acquiesced to its position.
Sikander Shah is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums.
Abid Rizvi is an expert on international law.
Published in Dawn, May 26th, 2016