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New political map of Pakistan and the jurisprudence of Kashmir case

Written by: Dr Syed Nazir Gilani

August 9, 2020 The ‘new political map’ issued by Pakistan on 4th August 2020, has generated a serious debate in Kashmir (Jammu and Kashmir), India, Pakistan and abroad. The view that the map is “a lawfare response to India’s 5 August 2019” is flawed to the extent of Jammu and Kashmir. The Jurisprudence of Jammu and Kashmir case (Indian occupied part in particular) is markedly different from the jurisprudence that covers Pakistan’s claim to Junagadh, Manavadar and some other States in Kathiawar.

We need to contest 5th August action as ‘military aggression’, “re-occupation” and “imprisonment” of the people quoting India as at the 230th Meeting of UN Security Council on 20 January 1948. India said “We hope to be able to convince the Security Council that once we have dealt with the Kashmir question, there will probably not be anything of substance which will divide India and Pakistan to the extent of endangering international peace and security”. We have a massive jurisprudence that would support our contest on its own and the inclusion of a part of Jammu and Kashmir (re-occupied by India) in the ‘new political map’ may hurt our case.

The ‘new political map’ has merit in respect of Junagadh, Manavadar and some other States in Kathiawar. These States have acceded to Pakistan on 15 September 1947. Pakistan has claimed these as ‘territories of Pakistan’ in the documents submitted to the UN Security Council on 15 January 1948. Pakistan has set out its position in Document II, item 3 sub item 4 “that Junagadh, Manavadar and some other States in Kathiawar, which have lawfully acceded to Pakistan and form part of Pakistan territory have been forcibly and unlawfully occupied by the armed forces of the Indian Union.” And in item 4, sub item 2 © Pakistan has asked the UN Security Council, “to arrange for the evacuation from Junagadh, Manavadar and other States of Kathiawar which have acceded to Pakistan of the military forces and civil administration of the Indian Union and to restore these States to their lawful Rulers”.

Pakistan has provided further details of Indian aggression and occupation of these territories and aggression against Pakistan in Document III, items 9, 11 and 12 submitted to the UN Security Council on 15 January 1948 (Document S/646). Therefore, correcting its positions in respect of Junagadh, Manavadar, other States of Kathiawar which had acceded to Pakistan on 15 September 1947 and Sir Creek is a legitimate step.

This part of correction in the ‘new political map’ of Pakistan would of course unnerve India. It has all the legal ingredients that Pakistan could invoke at the UN Security Council and nudge deep into Indian ribs. There is no doubt that Pakistan could drive India mad by opening up on
the question of “Pakistan territories” aggressed against and unlawfully occupied by India.

Jammu and Kashmir case rests on a different and well defined jurisprudence. On 8 January and on 9 January 1948 Pakistan and India respectively assured their cooperation to the Security Council and their faith in the principles of UN Charter. Pakistan and India have yielded to the jurisdiction of UN Security Council in the settlement of the question of self-determination of the people of Kashmir.

It has been made clear at the UN Security Council that “The party that would dare to violate an agreement thus reached would load upon itself a very grave offence against the other party, against the United Nations, and against the right of the people of Jammu and Kashmir to self determination, a right which, in other contexts, both parties have so often and so eloquently defended.” India without doubt has “loaded upon itself a very grave offence.” This offence has been committed against three parties namely, “the other party (Pakistan), United Nations, and against the right of the people of Jammu and Kashmir to self-determination.” Therefore there is a just cause to formulate an urgent response against India.

Pakistan needs to invoke the Canadian proposal of “affording protection to the people of Jammu and Kashmir” and refresh its proposal of sending a UN Force into Kashmir

UN SC Resolution of 30 March 1951 restrains India and insulates the interests of Pakistan and the people of Kashmir. “The new map as an executive move” is a misdirected exercise and open to adverse interpretations. “A law fare response to India’s 5 August 2019” should invoke Indian obligation under 8 January 1948 reply to the President of UN Security Council. The jurisdiction of UN SC has been explained at 240th meeting of UN SC on 4 February 1948. Pakistan’s position on Jammu and Kashmir is stated in its three Documents I, II and III S/646
submitted to UN SC on 15 January 1948.

The new political map of Pakistan to the extent of Jammu and Kashmir is at variance with Pakistan’s letter of 9 January 1948, case submitted in the three documents of 15 January 1948 and the view maintained by Philippines at the 773 meeting of the UN Security Council that “…pending the holding of a plebiscite, neither India nor Pakistan can claim sovereignty over the State of Jammu and Kashmir”.

Pakistan needs to invoke the Canadian proposal of “affording protection to the people of Jammu and Kashmir” and refresh its proposal of sending a UN Force into Kashmir. At the 761 meeting of UN SC held on 16 January 1957 Pakistan has proposed:

“…the Security Council should call upon the parties to withdraw all their troops from the State and should also ensure that the local forces which should be placed under the representative of the Security Council and left behind, are suitably reduced, if not disbanded altogether. The functions of protecting the State and ensuring internal security should be entrusted by the Council to a United Nations Force which should be introduced into the area at once. Let all other forces-Indian, Pakistani and local, be disbanded and non-Kashmiri nationals even in the police forces be removed from the State of Kashmir.” Australia, Cuba, United Kingdom and Northern Ireland and USA have supported the proposal in Resolution S/3787 dated 14 February
1957.

We would serve the people of Jammu and Kashmir well, if we keep to the jurisprudence of the Kashmir case. We need to make an urgent reference to the ‘positive duty’ of the Security Council, argued by USA, stating that “unless the parties are able to agree upon some other solution, the solution which was recommended by the Security Council should prevail.

The author is President of London based Jammu and Kashmir Council for Human Rights –NGO in Special Consultative Status with the United Nations.

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