This Article is written by Rohan Sthanu, a Fourth-year law student of Amity University Mumbai

Abstract

Before August 1947 India and Pakistan used to exist as a single state known as ‘British India’[1]. In August 1947 British India was legally dissolved by the United Kingdom two years after World War II and split the nation into Union of India and Pakistan, thereby forming two new sovereign republics. The partition of British India was done hastily in a mere six weeks the country was split into two. [2]This hasty partition resulted in messy borders and contentious areas such as Kashmir. The border disputes between India and Pakistan are deeply connected to the partition of British India. This article explores the implications of the partition intending to establish that while the process was well understood, the way the Radcliffe Line was drawn to demarcate the two new nations left many areas of contention and therefore sowed seeds of long-term territorial struggles. Successive politics of accession of Jammu and Kashmir to India, and subsequent internationalization through the United Nations Security Council resolutions, also added law dimensions to the issue. These conflicts still exist because of different interpretations, and violations of the agreements signed such as the Simla Agreement, and due to the intertwining of historical claims and sovereignty, international law, and bilateral relations. These ongoing controversies show that the legislations fail to mitigate the core political and historical tensions between these two South Asian nuclear superpowers. [3]

Keywords

British India, Partition, Jammu and Kashmir, Simla agreement, Radcliffe

Introduction

The shared colonial past of the two nations is the source of the conflict. Britain dominated the majority of the Indian subcontinent from the 17th to the 20th centuries, first indirectly through the British East India Company and then directly through the British crown starting in 1858 [4]The British crown's waning authority over its colonies was threatened by a burgeoning nationalist movement as Britain's control over them eroded over time.

Muslims were historically confined to a minority status in Britain due to the country's distinct electorates for Muslim citizens and the reservation of certain legislative seats for them. This contributed to the growth of the Muslim separatist movement. [5]The politician who led the Muslim League in India, Muhammad Ali Jinnah, started calling for the creation of a separate country for Muslims living in India.

Leaders in Britain and India started to seriously explore dividing the subcontinent based on religion when religious riots occurred throughout British India, resulting in tens of thousands of fatalities. Pakistan, a country with a majority of Muslims, became an independent republic on August 14, 1947. [6]The next day saw the independence of India, a country with a majority of Hindus.

The Indian independence and partition were just the start of the never-ending border war between India and Pakistan.

Partition of India

From 1947 till the present, the borders of India and Pakistan are unsatisfactory at best both nations accepted the boundary line drawn by the boundary commission which was headed by Sir Cyril Radcliffe. Given the chairmanship of the two border committees established with the adoption of the Indian Independence Act was Radcliffe, a man who had never traveled east of Paris. It was left to Radcliffe to establish the boundaries between the new countries of Pakistan and India to leave the greatest number of Muslims in Pakistan and Sikhs and Hindus in India. He had just five weeks to finish the task. It was decided that the Muslim-majority areas of British India would become Pakistan. In the Northwestern and Eastern regions of British India, there was a majority Muslim population whereas the central and South had a Hindu majority. It was decided that the state of Punjab and Bengal would be divided between both nations. The Princely States such as Hyderabad and Kashmir were given the choice to either join the new dominions or be independent.

The boundary commission was given an extremely short time to draw the boundary line. The chairman of the commission Sir Cyril Radcliffe arrived in India on 8th July 1947. The boundary commission had to draw the boundary line before 15th August 1947 and they did complete the task on time. The fate of approximately 390 million people was decided in a mere five weeks.[7]. Radcliffe and his team had to study maps, demographics, and population data in four weeks. Most of the data provided were outdated The Boundary Commission was not given current maps. A large number of the maps that were utilized dated from the early 1900s or even earlier, and they did not appropriately depict the administrative, geographic, or demographic changes that had taken place over time. The census data that was given to the Boundary Commission was recorded in the year 1941 six years before independence. The data that was provided did not adequately reflect the rapid changes in population distribution brought about by migrations, communal conflicts, and economic factors. Finally, the borders were decided as follows –

The state of Sind was entirely given to Pakistan. [8]A referendum was held in the areas of North West Frontier Province which resulted in the majority population siding with Pakistan. [9]The result was the same in Sylhet.[10]. West Punjab and East Bengal were given to Pakistan. Similarly, East Punjab and West Bengal were given to India.

The boundary line was publicly announced on 17th August 1947. The borderline stunned the masses as well as the political leaders. [11]

The Princely State of Jammu & Kashmir

India and Pakistan have been embroiled in hostilities since 1947 over Kashmir, a predominantly Muslim area located in northern India. The 86,000 square mile, hilly region was formerly a princely state. Both Pakistan and India now claim it.[12]

In 1947 there were more than 550 princely states in colonial India that were not under direct British rule. They had the option to join India or Pakistan or maintain their independence under the hurried terms of partition.

The Hindu Maharaja Hari Singh was in charge of the predominantly Muslim princely state of Jammu and Kashmir at the time. In contrast to the majority of princely states that sided with one country over another, Singh favored Kashmir's independence. The Maharaja and Pakistan struck a standstill agreement that permitted Kashmiri citizens to carry on trade and travel with the new nation, thereby avoiding pressure to join either one. India and the princely state did not sign a comparable standstill pact.

The Pakistani administration forced Kashmir to join it while unrest due to the partition raged throughout the two new countries. Much of western Kashmir was taken over by pro-Pakistani rebels who received funding from Pakistan. In September 1947, Pashtun tribesmen began crossing the border from Pakistan into Kashmir. Singh requested India's assistance in halting the invasion, but India replied that Kashmir would need to accede to India and become a member of the new nation to receive military support.

In October 1947, Singh consented and signed the Instrument of Accession, which annexed Kashmir to the Dominion of India. Later, Kashmir was granted special status under the Indian constitution, meaning that it would remain independent in all areas except foreign policy, communications, and defense.

Kashmir border dispute a legal dispute

The legal issues involved in the Kashmir border dispute are among the most challenging and seismic issues in today’s world geopolitics.[13] It is between India, Pakistan, and China with various treaties, agreements, UN resolutions, and international law principles forming the legal basis of the cases.

1. Accession of Jammu and Kashmir (1947): The then ruler of Jammu and Kashmir, Maharaja Hari Singh, at first did not accede to either dominion. However, after the tribal invasion backed by Pakistan, the Maharaja signed the Instrument of Accession to India on 26th October 1947. This accession is confined to defense, foreign affairs, and communication. India, thus, claims that the entire state of Jammu and Kashmir had legally joined the Indian Union and was an integral part of it.

· Legal Standpoint (India's View): India relies on the Instrument of Accession which it alleges to be a legal instrument that fits the principles of international law. The Government of India still affirms the principle that accession is for all time and cannot be altered.

· Legal Standpoint (Pakistan's View): Pakistan rejected the accession stating that it was under force and said that signatures were forced from the people of Jammu and Kashmir as they are Muslims and they should have been given the right to vote and make their own decision regarding their future through the referendum. Pakistan argues that its state acceded to India under duress and that Kashmir should be rightfully by right in Pakistan.

2. The UN Resolutions and International Law: The first Indo-Pakistan war over Kashmir was in the year 1947-48 after which the problem was referred to the United Nations Security Council (UNSC). The UN among other things has passed several resolutions concerning the issue of Kashmir including the UNSC 47 (1948).

· UNSC Resolution 47 (1948): The UN basic factor concerning the relations between India and Pakistan over the Kashmir dispute is Resolution 47 (1948) of the UN Security Council. It was passed by the United Nations Security Council on the 21st of April in the year 1948 in consideration of the crisis between India and Pakistan on the state of Jammu and Kashmir after the partition of British India in the year 1947. This resolution is important because it provides a broad framework for any conflict solution, involving the future of Kashmir’s region, through the referendum (direct vote of the people).

· Legal Perspective:

India's Position: India further contends that Pakistan failed to adhere to some of the preconditions provided in the resolution, especially the issue of withdrawal of forces from the area. Thus, it has been impossible to hold a plebiscite and there is still no resolution implemented because of Pakistan’s refusal.

· Pakistan's Position: Pakistan maintains that the option of the plebiscite is still applicable and India is allegedly not to blame for not making conditions for such a plebiscite which, according to Pakistan, should be held in the Indian Administered Kashmir.

· Legal Standpoint under International Law: It’s important also to note that while the UN can pass resolutions these are not necessarily legally enforceable. Furthermore, the UNSC resolutions regarding the status of Kashmir were made under Chapter VI of the Charter of the United Nations which provision refers to the peaceful settlement of disputes and does not present the same legal force found in Chapter VII which consists of measures to enforce peace and security.

Simla Agreement (1972)

The Simla Agreement was signed between India and Pakistan after the Indo-Pak War of 1971. Both parties agreed that given the current state of affairs, it was impossible to resolve the conflict and the LoC dividing the Indian and Pakistani-controlled parts of the state of Jammu and Kashmir should be considered the border between the two countries. [14]

Key Provisions of the agreement -

· It paved the way for both countries to solve all their problems amongst themselves without having to seek the support of other countries.

· The LoC (line of control) was agreed but, both the countries continued to claim the whole of Jammu and Kashmir.

Legal Standpoint:

· India's Position: The Simla Agreement defines the nature of the future relationship between India and Pakistan on the issue of Kashmir and New Delhi claims that any further talks should be held only on a bilateral basis.

· Pakistan's Position: Pakistan has occasionally demanded third-party intervention, especially from the UN or any other superpower based on the fact that the conflict is international, especially bearing in mind the previous UN resolutions.

The Simla Agreement is accepted in international law as the bilateral treaty the treaties between the sovereign states constitute the binding force in the customary international law (Vienna Convention on the Law of Treaties, 1969).[15]

International Law Principles Involved

The Kashmir issue also brings into the operation some of the most important principles of international law such as the sovereignty, self-determination, and the non-intervention policies of states.

· Self-Determination: Pakistan considers that as in many other nations and people around the world, the people of Jammu and Kashmir should be allowed to exercise their right to self-determination. Among the human rights that are provided in the UN Charter and ICCPR the right to self-determination occupies one of the leading places.

· India's Position: India besides stating that Jammu and Kashmir joined India legally through the Instrument of Accession signed in 1947, the Claim of self-determination is thus rendered moot. Moreover, India would like to note that Jammu and Kashmir have been holding regular elections, hence people have been given the option to elect their leaders.

· Pakistan's Position: In this context Pakistani contention is that people of the disputed state of Jammu and Kashmir should be given the right to self-determination as suggested by the UN that was to decide, whether to join Pakistan or India.

· Territorial Integrity: India has claimed that the whole of Jammu and Kashmir including the Gilgit and Baltistan is its territory while claiming sovereignty under Article 2 of the Charter of the United Nations. Anything that seeks to alter the borders would be against these principles.

· Non-Interference: The Simla Agreement also stresses on this aspect by restating the policy of non-intervention in the affairs of the other party. India has often used this to condemn Pakistan’s political and military exercises in the Pakistan-controlled part of Kashmir i. e., Azad Jammu and Kashmir and Gilgit Baltistan.

Sir Creek Dispute: - Legal perspective

There exists an age-old controversy between the two nations of Sir Creek which is a 96-kilometer marshy strip in the Rann of Kutch. The 17th and last drainage branch of the Indus River, Sir Creek, is a meandering riverine feature in the low-lying swampy Rann of Kutch. [16]It is around 92 km (50 NM) long. The disagreement over interpretations of the 1914 resolution adopted by the Government of Bombay or Bombay Residency is the basis of the boundary dispute between India and Pakistan over Sir Creek. India asserts, based on a more comprehensive reading of the relevant communication and the events that followed, that the international boundary runs mid-channel on the Thalweg principle, whereas Pakistan maintains that the international boundary runs along the east bank of Sir Creek.

The province of Sind, a crown territory seized by the British in 1846, and Kutch, a vassal state of the British as a result of the 1816 treaty, had a long-standing territorial dispute that the British Government of India chose the Government of Bombay as the arbitrator to settle. Following partition, Sind joined Pakistan and Kutch joined India, respectively, becoming the successor states to the 1914 resolution. Under British administration, the dispute was an interstate matter, but it now involves India and Pakistan's international boundaries, raising questions of "sovereignty and territoriality."

International Arbitration as a Solution for Sir Creek Dispute

Since India and Pakistan were failing to globally address the issue involvement of international parties under international law can also be a potential way to solve the problem.

· The framework for such arbitration could involve UNCLOS

Involvement of the United Nations Convention on the Law of the Sea (UNCLOS) - India and Pakistan are parties to UNCLOS which has an agreement of deterring and curtailing maritime boundaries. The matter of jurisdiction noted under UNCLOS could also assist in recommending equitably the maritime boundary.

There is a provision in Article UNCLOS 15 that may be useful in determining the boundary between the two countries, especially in the determination of the river boundaries in which the Thalweg principle can be applied.

· International Court of Justice (ICJ):

The other possibility could be to present the matter to the International Court of Justice (ICJ). Another boundary dispute was the Rann of Kutch issue which came in between India and Pakistan in 1965 and also ended through arbitration. In that case, an international tribunal divided the region in the ratio of 90: 10 in favour of India and Pakistan respectively. It is from this precedent that the idea can be derived that the ICJ or a similar tribunal could be fairly capable of hearing the Sir Creek matter.

· Precedents in International Law:

Thalweg Principle: In the law of nations, the rule that boundaries in rivers and other navigable waters are drawn according to the thalweg or the middle line of the main channel is well settled. India would probably have used this principle to reason for a mid-channel boundary.

In the two following cases, international arbitration and principles of equidistance were applied: The Gulf of Maine case (ICJ, 1984) and the Black Sea Dispute (Romania v. Ukraine, 2009).

Other Bilateral Treaties

There are several other international treaties signed between both nations which include: the Indus Waters Treaty – of 1960 [17]Concerning the rights of water usage. These treaties are set out legally and they act as the guidelines on how the India-Pakistan relations are regulated even during when there is hostility.

Legal Challenges: However, due to the established animosity between the two states, these treaties have not been easily implementable because of cease-fire violations in LoC (line of control) and contrasting understanding of the clauses of these treaties.

Conclusion

Therefore, it can be concluded that the subject of conflict between India and Pakistan is based on historical and political noncompliance, misunderstanding of the signed agreement, and legal barriers. Although international law provides a forum for mediation and arbitration, it has not eliminated political and historical enmity between the two nations. To obtain a sustainable result, it is necessary to align the legal claims and political preferences of both countries, establish a common language, and recognition of sovereign states’ rights, self-determination, and territorial integrity.

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[5] Therese O’Toole, “The Political Inclusion of British Muslims: From Multiculturalism to Muscular Liberalism” (2022) 22 Ethnicities 589 <https://doi.org/10.1177/14687968221085258>. (Accessed: 10 September 2024).

[6] Sarah Ansari, “How the Partition of India Happened – and Why Its Effects Are Still Felt Today” (The Conversation) <https://theconversation.com/how-the-partition-of-india-happened-and-why-its-effects-are-still-felt-today-81766>. (Accessed: 10 September 2024).

[7] Carol Lobo, “Five Weeks’ Notice: The Rush to Partition a Subcontinent” (PeepulTree, September 4, 2021) <https://www.peepultree.world/livehistoryindia/story/eras/cyril-radcliffe>. (Accessed: 10 September 2024).

[8] Priya Kumar and Rita Kothari, “Sindh, 1947 and Beyond” (2016) 39 South Asia Journal of South Asian Studies 773 <https://doi.org/10.1080/00856401.2016.1244752>. (Accessed: 10 September 2024).

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[10] Nabanipa Bhattacharjee, “‘We Are with Culture but without Geography’: Locating Sylheti Identity in Contemporary India” (2012) 3 South Asian History and Culture 215 <https://doi.org/10.1080/19472498.2012.664436>. (Accessed: 10 September 2024).

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[13] Lindsay Maizland, “Why India and Pakistan Are Fighting Over Kashmir Again” Council on Foreign Relations (March 1, 2019) <https://www.cfr.org/in-brief/why-india-and-pakistan-are-fighting-over-kashmir-again>.

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[16] Saleem H Ali, “Use Environmental Diplomacy to Resolve the Sir Creek Dispute” (South Asian Voices, July 15, 2019) <https://southasianvoices.org/environmental-diplomacy-to-resolve-sir-creek-dispute/>. (Accessed: 10 September 2024).

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