John Austin was right by claiming that international law is a weak law, according to his legal theory of positivism, because of no effective mechanism present for its implementation across the board. In the twenty-first century, states are hell bent upon vindicating what Austin had at a point of time foreseen. Not long ago, in the post Cold War era, the United States, as a trailblazer, tried to create a dent in the international law by going about-face to the resolution passed by the United Nations Security Council (UNSC) vis-a-vis attack on Iraq in 2003, on a false pretext of weapons of mass destruction, which it could not spot in there. Such a happy-go-lucky approach by the superpower with respect to international law backfired, and delinquency on the part of custodian of international law has given leeway to minnows in the comity of nations to take international law for granted, and be the arbiter of the law. Cases in point here refer to Israel turning its back to UNSC resolutions with respect to the two-state solution to the Palestine issue and North Korea’s obsession with nuclear tests spree. This has made it difficult for international norm codified in international law to reflect itself as political reality. States have now become the arbiters of international law subject to the power that they hold which has morphed international law into an object instead of a subject. International law, in the face of states’ arbitrary power, sound hollows in its claim of treating every state equally, as it has now been infected with the famous maxim from George Orwell novel Animal Farm:
“All animals are equal but some are more equal”
Where there are many case stories which verify how international law has been trampled by states’ arbitrary nature in the likes of never resolving issue of Palestine in the face of UNSC resolutions for two states solution, suffering of Rohingyas in Myanmar in the face of United Nations Human Rights Charter, there is one another issue that has become a question mark over the authenticity of international law. That issue is Kashmir. The issue has pitted two states, Pakistan and India, to talk to each other through barrels of guns several times despite clear cut resolution passed by UNSC in 1948 with respect to bilateral resolution of Kashmir issue. Like the past in which arbitrary approach toward the issue had invoked hawkish approach in the protagonists, once again the issue is being flared up by one party, India, keeping disregard for the other. Case in point here is Geospatial Information Regulation Bill.
For readers’ convenience, Indian parliament, has decided to pass the bill which aims to show disputed Kashmir region as part of its map. The bill bans all types of geospatial information, maps, raw data or photographs, acquired by any means, including satellite photography. Offenders could be fined up to 1bn rupees and 7 years imprisonment. The bill has brought the two states at each other’s throats in international arena once again, each trying to justify that the other is wrong in its claim over Kashmir.
Here it is pertinent to have a bird’s eye of view of Kashmir in the prism of history and how one party, India, has so far complicated the issue through a selective approach. Kashmir was a Muslim majority princely state which was annexed by India in collusion with its then ruler, Hari Singh, without people’s consent. The Instrument of Accession was signed on 26 October 1947 acceding the whole of princely state to the Dominion of India. This infuriated nascent Pakistan and war was inflicted upon India in Kashmir region by Pakistan through its gallant tribal troops. The troops retrieved a part of Kashmir which is now administered by Pakistan. India, then, failed to cope with the tribal incursions in Kashmir, and invoked UNSC help for putting an end to the war in Kashmir. Pakistan toed the line of UNSC resolution for cessation of hostilities in Kashmir and pledged to play an active role in resolution of the issue through bilateral diplomacy. India, though, nodded in affirmation to UNSC resolution for conducting plebiscite in Kashmir so that the people of Kashmir could decide according to their right of self-determination to which country they wanted to extend their allegiance, but it turned out to be a case of biding time on the part of India, because, since then, India has left no stone unturned in engineering the allegiance of Kashmiris through hawkish means.
India has now made Kashmir as integral part of its Constitution through Article 370 without having regard for UNSC resolution with respect to Kashmir. It also claims the part of Kashmir that has been under the administration of Pakistan and China as its parts. Its approach toward Kashmir in a unilateral way, though the issue is still ranked as one of the unresolved disputes in international arena, is another blow to international law, and is a reminder that the law is ceding ground to state’s whims.
India’s occupation of Kashmir is, first of all, illegal if its claim over Kashmir is pitted against international law as India has been deliberately keeping people of Kashmir at bay from their right of self-determination, which has been mentioned in the United Nations’ Charter too. Moreover, India has been steadfast in violating all the resolutions passed with respect to Kashmir by the UNSC. Also, India might legalize its hold over Kashmir through plethora of constitutional measures, but it cannot legitimize its rule over Kashmir as a government’s legitimacy is when aspirations of people resonate in government’s policies. This is not the case in Kashmir, with the government pitted against protests. And India, every time, instead of pandering to locals’ aspirations through improvement in governance, tries to cap the resistance with more deployment of troops. With the current political matrix in which Bharatiya Janata Party (BJP) has a coalition government with People’s Democratic Party (PDP), in Kashmir, Indian nationalist government has been more aggressively becoming oblivious to international norms with respect to Kashmir as is reflective from the passage of the controversial bill.
Given that the international law is being battered by aberrations of the states, there is a need that international law be asserted in letter and spirit. The hard earned peace that international law brought in its lap after two bloody wars of 20th century should not be taken as a luxury. The current aberrations by the states all over the world in general, and by India in particular, are regressive steps that might end up in 21st century apocalypse.
Our salvation lies in impartial implementation of international law; for this, in the international comity of nations, no matter if states are underdogs or top dogs, states need to make sure that, in any capacity possible, they raise voice against the selective implementation of international law, and make accountable all the perpetrators who want to rule as per their own accord. India is one of those perpetrators which is trampling on international norms against which the world at large and Pakistan in particular should raise voice.
