The recent statement of Indian Defense Minister Rajnath Singh cannot obscure the fact that, according to international law, Kashmir is not recognized as part of India’s union territory. It remains a disputed territory, with its future awaiting resolution in accordance with United Nations resolutions. International law firmly establishes that no nation can assert sovereignty over territory that it occupies.
This principle was first articulated in the Paris Agreement of 1928 and has been reaffirmed in Article 2, Section 4 of the UN Charter. The International Committee of the Red Cross supported this principle in a declaration on August 4, 2004.
The principles governing occupation explain that such status does not confer ownership upon the occupying power. Numerous UN General Assembly and Security Council resolutions uphold this position.
Moreover, the UNCCP reinforced this principle at a conference held in Switzerland, adding further weight to the established legal discourse. While a state is under occupation, it retains its identity as a recognized international entity. It does not merge with the occupying nation, meaning that the occupation is viewed as illegitimate for its entirety and does not alter the legal status of the occupied state.
The Security Council deemed Iraq’s occupation of Kuwait illegitimate in Resolution 674, while the UN General Assembly rejected the legitimacy of the occupation of Azerbaijani land based on this very principle.
Similarly, in Resolution 3061, the assembly condemned the Portuguese occupation of Guinea-Bissau as illegitimate. Therefore, India’s forceful claim of Kashmir as part of its territory, in defiance of UN resolutions, does not equate to Kashmir becoming an integral part of India, nor does it obligate its citizens to pledge loyalty to India. International law emphasizes that the Kashmiri people’s future should be determined through a UN-supervised plebiscite, and India cannot unilaterally annex occupied Kashmir in contravention of these laws.
The General Assembly Resolution 3314 supports the rights of Kashmiris to resist occupation, and Resolution 37/43, adopted on December 3, 1982, explicitly advocates for the right to self-determination, legitimizing armed struggle against occupying forces.
Article 45 of the Hague Convention reinforces the prohibition of demanding loyalty from inhabitants of occupied territories to their occupiers. In light of these principles, what steps can Pakistan take? A potential strategy would be for Pakistan to present the issue to the General Assembly under Article 96 of the UN Charter and seek an advisory opinion from the International Court of Justice.
This step would address whether India’s unilateral alteration of Kashmir’s status is permissible under international law and whether such actions could be classified as war crimes. Clear answers to these questions would bolster Pakistan’s position in international legal contexts. History shows that advisory opinions from the International Court of Justice, such as those regarding Israel’s actions, carry significant weight, even if they are not enforceable. It is important to recognize that the Kashmir issue transcends bilateral relations; it remains a significant topic on the UN agenda.
Following the Shimla Agreement, India has sought to frame it as solely a bilateral concern. However, given recent developments on August 6, Pakistan may justifiably reconsider its stance and even contemplate withdrawing from the Shimla Agreement due to India’s violations.
To strengthen our position, Pakistan should build upon Article 257 of its Constitution, enhancing it to reflect the international importance of the Kashmir issue. Additionally, the Supreme Court of Azad Kashmir could serve as a crucial venue to advocate for this matter, providing clarity on the legal status of Kashmir.
A definitive ruling should emphasize that the fate of the Kashmiri people should be determined in alignment with international consensus and United Nations resolutions. This would ensure that the Kashmiri voices are amplified globally and that our case is effectively communicated on the world stage.
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