Introduction:
Kashmir
is the most incredible place in the world which stands as a remarkable,
natural, phenomenon over the years. It is regarded as the celestial paradise.
But, the story of this paradise is full of remorse and yet the rapidly changing
political circumstances were fundamental for the emancipation of society as a
whole. Today when the cold war is over and the rest of the world is a better
place to live in, the people in Kashmir struggle through the depth of despair
and turmoil even worse than before. Even two deadly wars between India and
Pakistan did not solve the dispute of Kashmir and now an armed uprising has
resulted in Human Rights abuses of colossal proportions. The ten million people
of trouble state are in the battlefield fighting for survival with whatever
means available to them. On the other hand Kashmir as a nation is turning on
important corner as they found a new nationalism which given rise subjectivism
and evaluation of its element.
Now
the question arise comprising so many disputes and emerging subjectivism of a
new nationalism what will be the legal status of Kashmir. Though it seems the
legal status of Kashmir is hanging on balance yet it has been deprived of
having gets such elements which the law recognizes to have legal status.
Retro-active
law prevailing in British India in 1947 and International Courts over the year
can be seen today to greatly underwrite the status of Kashmir as a dispute
whose polity de-jure remains undecided. Through the metaphysical and basic
analysis of history, geographical background, cultural disposition, economic
resourcefulness along with the present situation, position of claiming nations,
the desire of local inhabitants and fulfillment of requirements of
international law and convention will determine whether Kashmir has any legal
status or not. But we must focus on the legal position of Kashmir before the
law.
Kashmir
in a nutshell:
Kashmir
is located in the South-Asian region. When undivided India divided under the Indian Independence Act-1947,
the British rulers divided the land into two-parts, one Muslim majority country
is called Pakistan and the other Hindu majority country is called India.
At
the time of partition, the leader of India’s 500-plus states were forced to
choose whether they would join India or Pakistan. The leader of Kashmir at that
time, Maharaja Hari Singh, chose to join in India. The Maharaja’s decision is
the foundation for India’s belief that Kashmir is theirs. Pakistan, however,
believes that Kashmir should have gone to them because of Muslim-majority.
India and Pakistan fought a several war from 1947 to 1949 for Kashmir when cease-fire line appears on maps today as
dotted “Line of Control” which is the
de-facto1
international border between India and Pakistan in Kashmir. Now, Kashmir
has been divided in two names_
i.
Jammu and Kashmir for India, and
ii.
Azad Jammu and Kashmir for Pakistan.
Two
parts has already got recognition by their dominant states. So why, if we want
to determine the legal status of Kashmir then we must focus on both the
position of India and Pakistan over Kashmir.
1.
De facto
recognition is purely a non-committal formula whereby the recognizing state
acknowledges that there is a legal de jure government which ‘ought to possess
the power of sovereignty, though at the time it may be deprived of them’, but
there is de facto government ‘which is really in possession of them, although
the possession may be wrongful or precarious. [Aksionairnoye Obschestvo A.M.
Luther vs. James Sagor & Co. (1921) 3 KB 532 at 543.
India’s position over Kashmir: Jammu and Kashmir:
India
is in the southern part of Asia. It is made up of a number of states which has
its own laws and customs but in important national matters, like national
security and foreign affairs, each state must obey the Central-Government based
in New-Delhi. India gives special status to the Jammu and Kashmir by Article 370 of the Constitution of India
and by Article 1 which defines the territory of India includes Jammu and
Kashmir. Within this territory the government of Jammu and Kashmir has power to
exercise authority over all persons and things because it is the only state in
India which has its own Constitution2. But this Constitution does
not give all powers to exercise, such as_
i.
Union of Legislature has very limited
jurisdiction in case of Jammu and Kashmir as compared to other states.
Residuary powers, unlike other states rest with Jammu and Kashmir. The
Parliament has no power to legislate preventive detention laws for the state,
only the State Legislature has the power to do so.
ii.
Any action of the Union Legislature or
the Union Executive which results in alteration of the name or territories
or an international treaty or agreement affecting the disposition of
any part of the territory of the state
requires the consent of the State Legislature or the State Executive to be
effective. The Union has no power to suspend the Constitution of Jammu and
Kashmir.
iii.
The Union of India has no power to
declare financial emergency, under Article 360 of the Constitution of India, in
the state. The Union can declare emergency in the state only in case of war or
external aggression.
iv.
Part IV (Directive Principles of the
State Policy) and Part IVA (Fundamental Duties) of the Constitution are not
applicable to Jammu and Kashmir. In addition to other fundamental right to
property are still guaranteed in this state.
v.
The High Court of Jammu and Kashmir has
limited powers as compared to other High Courts within India. It cannot declare
any law unconstitutional and under Article 226 it cannot issue writs except for
the enforcement of fundamental rights.
vi.
Certain special rights have been granted
to the permanent residents [The
Constitution of Jammu and Kashmir (Amendment) Act, 2011], with regard to
employment, acquisition of immovable property etc.
vii.
Under Article 370(3) consent of State
Legislature and the Constitutional Assembly of the State are also required to
amend Article 370. Now the question arises, how can we amend Article when the
Constituent Assembly of the state no longer existed? Or, whether it can be
amended at all? Some jurists say, it can be amended by an Amendment Act under
Article 368 of the Constitution and the amendment extended under Article
370(1).
Jammu
and Kashmir is an integral part of India because the Constitution of India
incorporated the Instrument of Accession3 of Jammu and Kashmir by
Article 370 and defined the territory of Jammu and Kashmir with India by
Article 1 of the Constitution of India. “And
this is final and legal and cannot be disputed as Jammu and Kashmir is not a
disputed territory”(claimed by the Embassy of India), but Jammu and
Kashmir is a disputed territory because both India and Pakistan claimed the
state of Jammu and Kashmir. The big powers like United States and United
Kingdom did not want to take sides and might have felt that it would be best if
the problem of the state could be settled between India and Pakistan. India
wants to settle the problems once and for all but Pakistan only accept a
solution under which it can keep the Kashmir valley to itself and India must
not allow this, therefore, the so-called ‘dispute’ continues to this day.
2. The
Constitution of Jammu and Kashmir, 1956.
3. A
method by which a nation that is not among a treaty’s original signatories
becomes a party to it < Italy became a party to the nuclear arms treaty be accession
> Vienna Convention on the Law of Treaties, art 15(1155 U.N.T.S. 331, 8
I.L.M. 679 (1969)
Pakistan’s position over Kashmir: Azad Jammu and
Kashmir:
Azad
Jammu and Kashmir is under the dominion of Pakistan. Pakistan’s position over
Kashmir is not clear because of certain matters e.g. Pakistan claims that
Kashmir is a disputed territory on the basis of raising their logic that
accession of Jammu and Kashmir to India is disputed because Maharaja Hari Singh
acceded to India under the duress without consulting the wishes of the people.
But, regarding the question of accession of princely Indian State of Jammu and
Kashmir, the only instrument of accession executed by its sovereign ruler was
in favor of the dominion of India though Pakistan refuses to recognize it.
But
then, it is a well known principle of International Law that, third states do not have a right to veto
the act of accession or secession. Pakistan was not a party to the
accession of the princely India State to the dominion of India and, hence, has
no standing with respect to the accession.
According to A.S. Anand, CJ, the
accession of the princely Indian State to the dominion of India was analogous
to that of Texas to the United States. The judge recalls that when Mexico
separated from the Spanish Empire, Texas was a part of the new independent
state. Subsequently Texas revolted against Mexican authorities and established
itself as a independent entity.
Pakistan
again claims that, Pakistan is only providing moral and diplomatic support for
the Freedom struggle in Kashmir. In fact, it is not even permissible for
Pakistan to offer moral, diplomatic, and political or material support for what
it terms as the ongoing freedom movement in Kashmir and what India terms as
cross-border terrorism.
Pakistan
occupied Azad Jammu and Kashmir but gave it an interim Constitution under the dictates of Pakistan while as if it
was liberated part of Jammu and Kashmir nation, it ought to have maintained for
its administration, the interim Constitution
of Azad Jammu and Kashmir 1974. The relationship between Azad Jammu and
Kashmir and Pakistan is twofold_
i.
In 1947, the Federal Government of
Pakistan struck a deal with Muzaffarbad, commonly known as the Karachi
Agreement.
ii. Additionally, the Azad Jammu and Kashmir
Constitution of 1974 give Islamabad a significant legal authority in the
affairs of Azad Jammu and Kashmir but only through the Kashmir council.
The
Azad Jammu and Kashmir Constitution also restricts the Azad Jammu and Kashmir
Assembly and the Kashmir Council from making any laws regarding the following
areas which fall under the preview of the Federal Government of Pakistan, such
as, the defense and security of the Azad Jammu and Kashmir; issue of
any bills; external affairs of the Azad Jammu and Kashmir including
foreign trade and foreign aid. Thus, it becomes the autonomous territory4 of Pakistan as it is a defined
part of the Pakistan’s territory and is authorized to govern itself, manage
certain matters as handed over its competence.
But
the maximum autonomy is not given to the Azad Jammu and Kashmir so why the
Constitution of Pakistan is needs to be amended.
In
principle, maximum autonomy should be given to the Azad Jammu and Kashmir but
we need to be careful that any Constitutional
change does not affect legal status of Pakistan’s case on Kashmir in
international flora. Federal Government needs to be shaken out of its lack of
concern towards current insufficient Constitutional status of the Azad Jammu
and Kashmir and carry out reforms for enhancing citizen’s rights and
representations within Federal Structure.
4. Territorial autonomy is a defined part of the
State’s territory that is authorized to govern itself, manage certain matters
handed over its competence.
Kashmir
conflicts: who is right? India or Pakistan:
When
British India was given its independence, India was supposed to be divided into
two countries: India and Pakistan. All areas which were Muslim-majority were
supposed to go into Pakistan and the rest Hindu-majority would be in India.
However, the princely states5
would be left to decide on their own. They could join in Pakistan or
India or they could remain independent.
Pakistan
wanted to take Kashmir on the basis of religion and they tried to capture it by
deploying Azad force. Maharaja Hari Singh on the condition of acceding it as a
Union of India signed in the instrument of accession and India occupied Kashmir
which is known as Jammu and Kashmir where Pakistan claimed that the accession
was invalid. As a consequence of Kashmir’s
conditional accession was incorporated in
Article 370 conferring a special status on the State of Jammu and Kashmir.
On the basis of this India claimed Jammu and Kashmir as an integral part of
India though it was rejected by Pakistan because they argued that,
where Kashmir was founded on the basis of Amritsar Treaty under which Maharaja
Hari Singh became the ruler and that treaty was further cancelled, so why
Maharaja Hari Singh lost its capability to be a ruler. So how was he entitled
to sign in an instrument of accession with India?
When
Pakistan renegades and made the nation as their battle field, Pandit Jawahar
Lal Nehru took the matter to the UN Security Council to deprive the citizens of
the Jammu and Kashmir nation of their right to self-determination in
respect of accession to India or independence. Where Pakistan nowhere in the
proceedings before the UN Security Council pleaded the cause of Jammu and
Kashmir as nation but pleaded their own interest. Pakistan in its own reply
did not challenge the competence of Maharaja Hari Sing to accede to Union of
India, instead demanded the territory on the basis of religion to the part of
Pakistan instead of India and not as an independent Jammu and Kashmir nation.
Had Pakistan challenged the legality of accession, then and only then, UN Security Council was bound under
Article 256 and 367 of the UN Charter to recommend the
case to the determination of legal issue by the International Court of Justice.
5. The term princely
states is generally used for the feudal domains of native potentates
maintained under indirect rule in European Colonies, mainly British India where
there were hundreds of them, while Western princes are said to reign over
‘principalities’.
Since
the legality of the issue was not under the challenge and the Governor General
of Free India has opined referendum to the people of Jammu and Kashmir and
nobody pleaded for the common citizens of Jammu and Kashmir nation, therefore,
referendum to the people of Jammu and Kashmir nation was construed a mutual
decision but not limited to the fact of determination of instrument of
accession.
Accession
to India or Pakistan or remain independent, so-called the right of self
determination, whatever they show but it is true that neither India nor Pakistan wants
an independent Kashmir. Conflict in Kashmir even in nowadays goes on
but who is right is unsettled and disputed.
Many attempts took place to mediate the dispute but if the right of
self-determination is granted only then it can solve and Kashmir may get its
freedom from conflict.
6. The Members of the United Nations agree to accept and
carry out the decisions of the Security Council in accordance with the present
Charter.
7. (i) The Security Council may, at any stage of a
dispute of the nature referred to in Article 33 or of a situation of like
nature, recommend appropriate procedures or methods of adjustment. (ii) The
Security Council should take into consideration any procedures for the
settlement of dispute which have already been adopted by the parties. (iii) In
making recommendations under this Article the Security Council should also take
into considerations that legal disputes should as a general rule be referred by
the parties to the International Court of Justice in accordance with the
provisions of the Statute of the Court.
The right of self-determination and the position of
International Community to Kashmir:
The
principle of self-determination8 is deemed to be a right under
international law. Peoples under the colonial rule or foreign occupation are
granted a right to determine for themselves, the sovereignty under which they
wish to live. Then there is the fact that a considerable weight of contemporary
opinion, represented particularly by the newly emerged states, favors the view
that people as such9 have
certain inalienable rights under international law, among which are the right
of self-determination, the right to choose their political, economic, and
social systems, the right to dispose of the natural wealth and resources of the
territory occupied by them, the right to development, the right to peace and
security and the right to protection of their physical and social environment. The
application of the right of self-determination in the case of Kosovo10
is a contentious example of that.
The
right of self-determination of peoples and dependent entities has been expressly
recognized by the United Nations General Assembly in its Resolution on
Self-Determination of 12 December 1958, and in its Declaration of 14 December
1960, on the Granting of the Independence to the Colonial Countries and
Peoples. The right was defined in some detail, under the heading ‘The principle of equal rights and
self-determination of peoples’, in the Declaration of Principles of
International Law Concerning Friendly Relations and Co-operation Among States
in Accordance with the United Nations Charter, adopted by the General Assembly
in 1970. The application of the right of self-determination in the case of
Kosovo10 is a contentious example of that.
8. The right of self-determination has been treated as
necessarily involving a number of correlative duties binding upon states,
including the duty to promote by joint and separate action the realization of
the right of self-determination, and the transfer of sovereign powers to the
peoples entitled to this right, and the duty to refrain from any forcible
action calculated to deprive a people of this right.
9. It may even be claimed that ethnic, religious, and
linguistic groups have rights under international law; cf art 27 of the
International Covenant on Civil and Political Rights of 1966: ‘in those States
in which ethnic, religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with other members
of their group, to enjoy their own culture, to profess and practice their own
religion, or to use their own language’. Y. Dinstein ‘Collective Human Rights
of Peoples and Minorities’ (1976) 25 ICLQ 102-120; E. Fischer Minorities and Minority Problems (1980);
and G. Nettheim ‘Justice and Indigenous Minorities: a New Province for
International and National Law’ in Blackshield (ed) Legal Change (1983) pp 251-263.
10. The Kosovo problem represents a formidable occasion
to re-examine some basic humanitarian intervention, the right to self-determination and right of
recognition. It is now up to the International Court of Justice to show the
way in a politically much loaded case. In
particular, the right to self-determination
should find a re-interpretation corresponding to the needs of the twenty-first
century.
The
people of Kashmir claim to the right of self-determination are exceptionally
strong. The area had a long history of self-governance, the territory of
Kashmir has been clearly defined for centuries, and the most important is that
Kashmiri have a current strong common aspiration for re-establishment of
self-rule. Certainly the right of self-determination may be applied in such a
manner that does not necessarily manifest itself in the form of an independent
state, but rather of an autonomous area, e.g. Catalonia in Spain and Quebec
in Canada. The accession of a certain area from the independent state to
which it belongs is legal only as there is a mutual consent by the people
inhabiting the area concerned and the Central Government of the State.
The
United Nation itself promised the people of Kashmir the opportunity to express
their wishes regarding their governance and the international status of their
state. Various resolutions adopted by the United Nations by which the dispute
of Kashmir could be settled.
Part 3, paragraph 1 of the UN
Resolution August 13th 1948, states:
“the Government of India and the Government of Pakistan reaffirm that the
future status of Jammu and Kashmir shall be determined in accordance with the
will of the people”.
United Nations Commission of India
and Pakistan (UNCIP) Resolution of January 5th 1949 again stated:
“the accession of the state will be decided through the democratic method of a
free and impartial plebiscite”. Soon after having accepted that resolution
India and Pakistan signed the Karachi Agreement 1949, establishing the
cease-fire-line known as the Line of Actual Control to be supervised by the
observers.
The UN Resolution of September 20th
1965,
after the cease-fire was accepted, it was stated that, steps should be taken
towards a settlement of the political problem underlying the conflict. Kashmir
was the bane and its disputed nature was emphasized. But, UN has failed to
implement its resolutions in Kashmir because of following reasons and therefore
it became hard to establish the right of self-determination for the people of
Kashmir.
i.
Boutros Ghali, the UN Secretary General,
stated that the nature of the resolutions on Kashmir are political and cannot
be enforced therefore different instrument will have to be put in place.
ii.
The resolutions came to an impasse de
facto by inaction on the political front. India and Pakistan did not show any
signs of resilience, or cooperation with the UN in solving the problem.
iii.
The UN Commission for India and Pakistan
worked for three years but failed.
iv.
India wanted Pakistan to be treated as
an aggressor and did not agree to proposals for demilitaralisation and a
plebiscite.
v.
Pakistan’s position was that the
Pakistani army had to get involved when the Indian army were there attaining
their own borders. They from both countries would pole out before a plebiscite
was held under UN auspices.
vi.
The resolutions of April 21st
1948 was not implemented for the following reasons:
(a) India
and Pakistan did not use Article 9611 of the UN Charter which would
enable the UN to ask International Court of Justice(ICJ) for opinion to
determine that the accession to India was legal or not. If the decision is
‘yes’ then Kashmir would be right for India and if the decision is ‘no’ then
both countries were occupying foreign territory.
(b) Chapter
VII12 of the UN Charter was also not used which would have enabled
the UN to clearly define the aggressions and their designs. The Commission
could have taken measures to enforce its decision.
(c) Chapter
VI13 of the UN Charter used by India to lodge the complaint has
limited powers which enabled the UN to mediate, negotiate, conciliate and
arbitrate. This is the Chapter used by the parties in the Kashmir dispute and
here no decision is enforceable.
11. (a) The General Assembly or the Security Council may
request the International Court of Justice to give an advisory opinion on any
legal problem. (b) Other organs of the United Nations and specialized agencies,
which may also request advisory opinion of the Court on legal questions arising
within the scope of their activities.
12. Actions with respect to threats to the peace,
breaches of the peace, and acts of aggression.
13. Pacific settlement of disputes.
(d) India
did not want to internationalize the dispute. The UN appointed an arbitrator
whose arbitration was accepted by Pakistan but rejected by India.
The position held by the
international community:
including
major political organizations and world leaders, is unanimous about its policy
on Kashmir. The official stand on Kashmir is a disputed territory and by
implication it is not considered as a part of India or Pakistan. Apart from the
United Nations official stand on the disputed status of Jammu and Kashmir, the
world’s major governments have declared that the sovereignty of Kashmir is
undecided. Kashmir therefore is not a part of India of Pakistan.
United States Washington D.C.
Congress, Honorable J. Kenneth Blackwell in a briefing paper (January 1994)
states on violent repression in Kashmir that “this is not a civil war because
India’s occupation of Kashmir has never been accepted by the international
community.
A
conclusion can be drawn from all the evidences stated and supported by dossiers
on record that the political and legal position of Kashmir is
controversial and hanging in the balance. It is the belief of many
hundreds of prominent people of India, Kashmir and the world that the status of
Kashmir be treated as undecided and on that premises the presence of Pakistani
or Indian administration in parts of Jammu and Kashmir be treated as disputed.
Article 1 of the Montevideo Convention in 1933 and
Its Relation with Kashmir:
Legal
Status is a legal reorganization of any state and it reorganization should be
internationally for getting legal status of any state firstly I should be a
perfect state now we should know what is qualification state? We can know it
according to Article 1 of the Montevideo convention which signifies.
Article 1:
The
state as a person of international law should possess the following
qualification:
(a) a
permanent population;
(b) a
defined territory;
(c) government;
and
(d) capacity
to enter into relations with the other states.
The
1st qualification is a permanent population now it is the matter of
that what is permanent population? And has a kashmir permanent population?
Permanent
residents signifies that every state has reasonable number of person who are
bowed to that state. They would not be movable. It could be refuge or
expatriate but condition is to obey to the state.
Now
we can see through the Kashmir whether it has permanent resident or not?
Section
(6) of the constitution of Jammu and Kashmir dealing with the permanent
residents of the state such as-
Permanent
residents (1) Every person who is, or is deemed to be a citizen of India under
the provision of the constitution of India shall be permanent resident of the
state, if on the 14th day of May, 1954.
(a) he
was a state subject of class I or class II; or
(b) having
lawfully acquired immovable property in the state, he has been ordinarily
resident in the state for not less than 10 years prior to that date.
Jammu
and Kashmir has around 1.25 crore permanent residents and Azad Kashmir has 4
million permanent residents-
On
this ground we can say that Kashmir has a permanent residents which is the 1st
condition for being a state and state is the first and foremost requirement for
having existence of legal status of any country on the basis of this Kashmir
has a legal status for having 1st element of state in accordance
with the Article (1) of the Montevideo convention.
Defined Territory and
its Relation with Kashmir:
According
to Article (1) of the Montevideo
convention for being a state 2nd condition is defined
territory which is the most significant for making a legal status of any
country.
Defined
territory is any fact of land; region or distinct the land belonging to or
under the jurisdiction of a state sovereign etc. And land should be recognized
by international community. And international recognition is obligatory
nevertheless it is possible to constitute much of contention.
Now
we can look through the Kashmir whether it has defined territory or not?
The
point is that- The Kashmir has a territorial dispute between India and Pakistan
over the Kashmir region, the northwestern most region of south Asia-
India
claims the entire state of Jammu Kashmir administers approximately 43% of the
region including most of Jammu, the Kashmir valley, Ladakh and the siachen
Glacier. Indian’s claims are contested by Pakistan which controls approximately
37% of the Kashmir. Namely Azad Kashmir and the northern areas of Gilgit and
Baltistan India has officially stated that Kashmir is an integral part of
India- Pakistan maintains that Kashmir is the jugular vein of Pakistan and a
currently disputed territory whose final status must be determined by the
people of Kashmir.
China
states that Aksai chin is a part of china and does not recognize the addition
of Aksai chin to the Kashmir region.
Certain
Kashmir independence groups believe that kashmir should be independent that
Kashmir should be independent from both India & Pakistan on the solution of contention which is
existence among Pakistan, India and China the line of control plays a vital
role. Which refers the Military control line between India princely of Jammu
& Kashmir which does not constitute a legally recognized international
boundary but it is the defacto border.
In
the eye of above description Kashmir has not legally recognized in
internationally boundary only the defacto border. So Kashmir has no legal
status for not having defined territory.
Government of
Kashmir:
3rd
qualification is effective Govt. for being a state which is most essential for
making a legal status of any country matter of fact is that the characteristics of Kashmir Govt. what
types and how?
The Govt. of Jammu
& Kashmir:
The
Govt. of Jammu & Kashmir is the supreme governing authority of the India
state of Jammu Kashmir and its 3 divisions and 22 districts. It consists of an
executive, led by the Govt. of Jammu & Kashmir, a judiciary and a legislative
branch. Like to other states in India, the head of state of Jammu & Kashmir
is the Govt., appointed by the president of India on the advice of the central
Govt. His or her post is legally ceremonial.
The Govt. of Azad &
Kashmir:
Azad
and Kashmir is a self governing state under Pakistan control but is not
constitutionally part of Pakistan. It has its own president PM legislature,
High Court and official flag.
On
the basis of this argument we can say that Kashmir has no effective Govt. As
the Govt. of Jammu & Kashmir appointed by the president of India on advice
of control Govt. His or her post only ceremonial.
On
the other hand the Govt. of Azad & Kashmir is self governing but under
Pakistan control. So, govt. in the absence of this significant criteria to have
a legal status of Kashmir is not possible so, Kashmir has no legal status.
Capacity of Kashmir to
enter into relations with others:
4th
Qualification is a capacity to enter relations with other states for being a
state which is most essential. Now we can see through the Kashmir whether it
has a capacity is to enter into relations with other states or not?
a
capacity is to enter into relations with other states means effective
governance enable a firm’s board and executive to work together to work to
deliver a firm’s agreed strategy. In particular it is about managing the risk
the firm faces.
And
a state must have a recognized capacity to maintain external relations with
other states. In sphere of recognized capacity sovereignty is must.
There
is part and parcel relationship between sovereignty and recognized capacity. If
any country has sovereignty then it able to enter into relations with others.
It gets rights and able to carry international liability. And no state can dominate such as state and
if will get safety for being the subject matter of international law. It is
obligatory to make sure consent in point of any international case. Here this
principle is applied equal over equals don’t have any authority.
Here
the leading case Rusian case USSR Vs. USA, US Federal Court, 1948 Here American
Federal court comes into decision that it is out of jurisdiction to detain this
ship because of so soviet asset and USSR is sovereign state. Now it is the
crucial point has Kashmir any sovereignty or not? if has what type of
sovereignty has?
We
know that sovereignty is 3 types one is domestic sovereignty another is
independence sovereignty and the other is international legal sovereignty.
Domestic
Sovereignty: Actual control of movement across states border within the state.
Independence
sovereignty: actual controls of movement across borders assuming the borders
exis.
International legal
Sovereignty:
Formal
recognition by other sovereign state-
In
the light of above question we can say that basically Kashmir has no
sovereignty but only domestic sovereignty exist rest of two has no existed in
Kashmir.
As
sovereignty is absent in Kashmir so it is next to impossible to become a
sovereign state.
Our Own views about
Legal Status of Kashmir:
It
is clear that Kashmir is a controversary state in the world. Some portion of
Kashmir is included in India, some portion is included in Pakistan & some
portion is China. Kashmir has no exclusiveness & own possession over its
state, those are most essential for being a state. Such qualifications are
absent in Kashmir.
And
Kashmir has absent from all major elements of a state such as defined territory
it is still not clear whether Kashmir should be a part of India or Pakistan or
both or whether it should be an independent territory line of control signifies
that Kashmir does not constitute a legally recognized internationally boundary
only it is de fact to border.
Another
qualification is a capacity to enter into relations with other states. Kashmir
has not such capacity in change of effective Govt. And sovereignty. The
relations between sovereignty & recognized capacity is part and parcel.
Though Kashmir has domestic sovereignty but rest of two sovereignty such as
independence sovereignty and international legal sovereignty is absent. In lake
of those sovereignty capacity to enter into relations with others is
impossible & it also impossible to
become a state without sovereignty. So sovereignty is necessary to carry on any
relations with others.
Kashmir
has no dejure and de facto recognition though without recognition a state come
into existence but it is not recognized internationally. Yet Kashmir is not
included in UN. And it can’t sue in (ICJ) international court of justice for
any suit inspite of absence this essential elements How state get legal status
so, we can say that Kashmir has no legal status.
