If Kashmir is Disputed so can be Pakistan?

For several years now Pakistan and its dictatorial regimes have questioned the accession of the State of Jammu and Kashmir to India by stating and restating it again and again that the State of Jammu and Kashmir is a disputed territory. By applying the same logic the identity of Pakistan and its existence as a sovereign political state can be questioned by India and the Indian Government by taking the logic from International Law itself.

As per the Vienna Convention of the Law of Treaties of 1969, which is an international legal document, a material breach of a bilateral or a multilateral treaty by one party entitles the other party to terminate a treaty. Under this clause, if applied in the Indian context, the Partition of India Plan, or the Lord Mountbatten Plan of 1947 as it is generally referred to, was an international treaty signed between the then British Government, the Muslim League and the Indian National Congress under which it was agreed that the British would leave India on the zero hour at the midnight of August 14, 1947 and British India would be partitioned into two new sovereign states—India and Pakistan.

On June 3, 1947, Lord Mountbatten announced his Plan. The salient features were:

1) Mountbatten’s formula was to divide India but retain maximum unity. The country would be partitioned but so would Punjab and Bengal, so that the limited Pakistan that emerged would meet both the Congress and League’s position to some extent.

2) The Mountbatten Plan sought to effect an early transfer of power on the basis of Dominion Status to two successor states, India and Pakistan.

3) A referendum was to be held in the NWFP to ascertain whether the people in the area wanted to join India or not. The princely states would have the option of joining either of the two dominions or to remain independent. The provinces of Assam, Punjab and Bengal were also to be divided. A Boundary Commission was to be set up to determine the boundaries of these States.

The clause three of the agreement is significant where it is mentioned that the princely states would have the right to join India or Pakistan or remain independent if they wanted. This Plan was accepted by all the three parties—the British, the Muslim League and the Congress—as all three of them were signatories to it. By signing it all the parties agreed to all the clauses and salient features of the Plan as such and it implied that none of the parties would violate any of the clauses of the document. But the first to violate this clause was Pakistan itself when it attacked the sovereign state of Jammu and Kashmir and wanted to annex it by force in 1948. When Pakistan had attacked that state the sovereign ruler of that state had requested the Indian Government for help and signed the deed of merger with India which was also ratified by the provincial assembly of the state of Jammu and Kashmir. As per the Mountbatten Plan of which the Muslim League was a signatory, the princely states of India had the right to join India if it wanted and the state of Kashmir had exercised that option. This treaty between India and the state of Jammu and Kashmir came into existence because of the earlier treaty of the Indian Independence Act. As such if the Mountbatten Plan is an international treaty, so is the accession of the state of Jammu and Kashmir with the state of India. If Pakistan can so shamelessly violate and refuse to accept the accession of Kashmir with India, then India can also question the existence and creation of Pakistan based on the clause of the Vienna Convention that a material breach of a treaty by one party entitles the other party to terminate a treaty. Pakistan has violated this clause since the beginning by not accepting that part of the Mountbatten Plan in relation to the princely states as it is clear from the case of Kashmir. As such India has every right to question the existence of Pakistan. The day India does this, the state of Pakistan becomes disputed if the Pakistani logic on Kashmir is applied on them by India.

Secondly, as per the Vienna Convention of the Law of Treaties of 1969, the impossibility of performance of a treaty is also a valid ground for its termination. Article 61 of the Vienna Convention says this. As per the impossibility performance test, a treaty becomes invalid if one of the existing party shows that it is incapable of implementing the treaty in practical circumstances. Pakistan, by not implementing or by violating that clause of the Mountbatten Plan in relation to the princely states by trying to occupy the state of Jammu and Kashmir by force and annexing a part of its territory illegally, has demonstrated to the world that it was incapable of implementing the Mountbatten Plan in its letter and spirit; as such the impossibility of performance of a treaty would apply in this case. In such a situation India has the right to nullify that part of the Mountbatten Plan which mentions about the creation of Pakistan.

It is true that the Vienna Convention does allow treaties to invalidate the existence of sovereign states or changes of political boundaries between states but in this case this rule would not apply because Pakistan had violated the very clauses of that international agreement which had created the state of Pakistan.

Since Pakistan was the initial violator, as such it cannot question the Indian role in relation to East Pakistan.

THE Government of Pakistan can argue in relation to the princely state of Junagadh or that of Hyderabad. But then the Mountbatten Plan did talk about referendum, popular will or the accession of the princely state with the state of India or Pakistan in its clauses. India had exercised its option in relation to these two states under the Mountbatten Plan as the majority will of the people of these two states wanted to join with India. As such Pakistan cannot question the Indian role in these two states.

Again the questionable identity of Pakistan can be questioned by the concept of Maxim Rebus Sic Stantibus in the doctrine of International Law. Which means if the fundamental or material circumstances under which a treaty is concluded change, then this change becomes a basis for the avoidance or change or termination of a treaty.

Edward Collins writes in his book International Law in a Changing World, 1969: “It is widely recognised that if fundamental changes in the circumstances upon which a treaty rests take place, these changes may be invoked as a ground for the termination of the treaty. The principle known generally as the doctrine of Clausula Rebus Sic Stantibus is based on the assumption that there is an implied clause in every treaty that provides that the agreement is binding only so long as the material circumstances on which it rests remain unchanged.”

Taking a leaf out of the doctrine of Maxim Rebus one can question the identity of Pakistan. Looking into the past misdeeds of Pakistan one can very well argue that there were fundamental changes in the circumstances upon which the Mountbatten Plan was laid; these had changed the moment Pakistan had attacked the then independent state of Jammu and Kashmir without any provocation from the side of Jammu and Kashmir. As such the material circumstances on which the Mountbatten Plan was based changed the moment Pakistan violated the clause of the Plan in relation to the princely states when it tried to occupy Kashmir by force. Thus taking help from this doctrine India can well dispute the existence of Pakistan.

When the identity of Pakistan itself can be questioned, it would be advisable for Pakistan to stop its claim on the State of Jammu and Kashmir once and for all and hand over that part of the territory of the State of Jammu and Kashmir which includes the so-called Azad Kashmir, Northern Areas and the areas seceded by Pakistan to China, to India once and for all as these genuinely belong to India after the accession of the state to India in 1948. It is advisable for the Pakistan President to initiate this process of handing over the illegally occupied territories back to India instead of advancing new plans in relation to the so-called disputed State of Jammu and Kashmir. This is the minimum which Pakistan should do to wash out a part of its past misdeeds if it really wants the peace process to be successful. The ball lies in the Pakistani court now.

The author is a renowned expert in foreign and economic affairs.