Non-Paper on  The Jammu and Kashmir Dispute – A Legal Appraisal

Non-Paper on The Jammu and Kashmir Dispute – A Legal Appraisal

This paper has not been drafted by FALAH. We are sharing it for academic and advocacy purposes.

Download (PDF, 463KB)

Excerpt of the Paper

  • India’s unilateral and illegal actions since August 5th, 2019 and its skewed narrative and interpretation of UN Security Council Resolutions has made it imperative to clarify the legal aspects of the Jammu and Kashmir dispute.
  • Pakistan drafted a comprehensive legal paper on Jammu and Kashmir covering various aspects of the dispute, referring to credible and authenticated sources such as United Nations documents particularly resolutions.
  • This paper reemphasis the UN position as expounded by the UN Secretary General in his statement on 8 August 2019, which categorically stated that the “the position of the United Nations on this region is governed by the Charter of the United Nations and applicable Security Council resolutions.” Similar position has been expressed by the Office of the High Commissioner for Human Rights in its two Kashmir Reports of 2018 and 2019.
  • This paper has been shared with all the members of the UN Security Council for their information and to apprise them on the factual legal position of the Jammu and Kashmir dispute and also to rebut the obfuscations and lies by India.
  • The key points/ findings of this paper include:
  • Jammu and Kashmir dispute, unfinished agenda of the partition of the Indian subcontinent, is also one of the oldest issues on the agenda of the UN Security Council.
  • Security Council resolutions provide that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through a free and impartial plebiscite conducted under the auspices of the United Nations.
  • India has denied Kashmiris their inalienable right to self-determination granted to them by the UN Security Council resolutions.
  • Self-determination is one of the cardinal principles of international law enshrined in the UN Charter, General Assembly resolutions, basic human rights instruments and case law of the International Court of Justice.
  • Both Pakistan and India have endorsed the fundamental principle of self-determination of Kashmiris in resolutions of UN Commission on India and Pakistan (UNCIP).
  • India’s entire claim lies on the dubious “Accession” instrument purportedly signed by one man on behalf of millions of his subjects, whose validity is itself highly questionable from factual and legal standpoint.
  • India’s attempts at sham “elections” and “declarations” have been declared null and void by the Security Council resolutions, determining that any unilateral attempt or any action taken by the parties concerned to determine the future shape and affiliation of the entire State of Jammu and Kashmir or any part thereof would not constitute the disposition of the State in accordance with the principle of a free and impartial plebiscite.
  • UNSC resolutions are immutable. They can be invalidated only by fulfilment of the obligation, consent of the parties or a subsequent resolution or decision of the Security Council. None of this has happened with respect to Jammu and Kashmir.
  • IOJ&K is the most militarized zone in the world, where close to 900,000 security forces have been deployed by India in breach of Security Council resolutions as well as bilateral agreements.
  • The sheer size, deployments and repressive actions of the Indian forces in the IOJ&K amounts to foreign and colonial occupation.
  • India’s occupation forces have committed massive human rights violations, widely known to international community. These violations have been documented by in two reports of the UN High Commissioner for Human Rights in 2018 and 2019, communications of the UN Special Procedure Mandate Holders, and reports of international media and civil society.
  • India’s unilateral actions of 5 August 2019 to deprive the occupied territory of its “special status” have removed the fig leaf to justify India’s presence in Jammu and Kashmir.
  • Since August 5th, 2019, India has taken several measures to permanently alter geographic and demographic contours of the territory, in clear breach of the Security Council resolutions.
  • The sole purpose is to turn the indigenous Muslim majority into a minority through “demographic flooding”.
  • India has misused its “counter terrorism” impunity laws to perpetuate its illegal occupation in Jammu and Kashmir and equate Kashmiris’ just struggle with “terrorism”.
  • Kashmir dispute is central cause of tensions between Pakistan and India. Several rounds of talks to resolve the issue have failed due to Indian obduracy. On spurious ground, India has refused to engage with Pakistan in multilateral considerations or bilateral processes.
  • On the basis of the findings of the paper, it has been concluded that the Kashmir dispute cannot be left unattended for multiple reasons:
  • One, grave violations of human rights are taking place each day in IOJ&K, further deteriorated by India’s military siege post August 5th, 2019;
  • Two, there is an ever-present threat to international peace and security, due to a possible escalation of ceasefire violations along the Line of Control (LoC) into a full-fledged conflict or as a consequence of an Indian “false flag” operation under the pretext of India’s baseless allegations of “infiltration” across LoC;
  • Three, the Security Council and the UN Secretary General are legally and morally obliged to secure implementation of the binding UN resolutions and agreements on Jammu and Kashmir to which they are a Party.
  • Pakistan and India have fought three wars over Jammu and Kashmir. A catastrophic war was avoided in February 2019 due to Pakistan’s measured response to Indian aggression. Those who continue to suggest that Pakistan and India resolve the Jammu and Kashmir dispute bilaterally should be cautious not to ‘lapse into escapism’.
  • The Government and people of Pakistan remain steadfast in their adherence to the Security Council resolutions and in our strong support to the right of the Kashmiri people to self-determination.

Leave a Reply

Your email address will not be published. Required fields are marked *