Rudolf Geiger

KASHMIR

1. The State of Jammu and Kashmir

Since the end of British rule over the Indian
subcontinent in 1947 there has been a dispute
between India and Pakistan over the former
Himalayan State of Jammu and Kashmir (~
Decolonization: British Territories). In the years
1948, 1965 and 1971 the dispute flared up into
~ armed conflict, but even in times of relative
peace strong tensions have prevailed between
India and Pakistan on account of the Kashmir issue
(~ Boundary Disputes in the Indian Subcontinent).

The State of Jammu and Kashmir was founded
in 1846, when the British Govemment, represented
by the British East India Company,
transferred the provinces of Jamrnu, Kashmir,
Gilgit, BaItistan and Ladakh to the Maharaja of
Jammu, Gulab Singh, in the Treaty of Amritsar of
March 16, 1846 (BFSP, Vol. 38, p. 800). These
provinces, which the Company had acquired from
the Sikh State shortly before, were transferred to
Gulab Singh and his heirs in „independent
possession“ , subject, however, to the „supremacy“
of the British Government. According to
the census held in 1941 the State had about four
million inhabitants. Two million lived in Jammu
and 1.7 million in the vale of Kashmir. About 77
per cent of the State’s population were Muslims.
They mainly settled in the province of Kashmir
and in the western part of Jammu. On the other
hand, almost the entire Hindu population of the
State, about 20 per cent of the total population,
were living in Jammu. Sikhs and Buddhists formed
smaller minorities. Beyond the end of British rule
the State was governed by the Hindu dynasty
founded by Gulab Singh.

Jammu and Kashmir was the largest of the 562
Indian Princely States which constituted about 45
per cent of the subcontinent’s total area. Whereas
the provinces of British India were administered
directly by the British Government, the Indian
States were governed by their princes subject to
the suzerainty of the British Crown, After the
adoption of the Government of India Act, 1935
(25 & 26 Geo. V, c. 42), the authority of the British
Crown over the Princely States was exercised by
the Crown Representative. In practice the offices
of Governor-General of British India and of
Crown Representative were both held by the same
person, the last being Lord Mountbatten of
Burma.

2. The Partition 0/ British India and the
Question 0/ the Prlncely States

(a) The partition 0f British India

The fight for independence from British rule was
overshadowed by the conftict between the Indian
National Congress and the Muslim League, which
at the time of the transfer of power, August 15,
1947, led to the partition of British India according
to the Indian Independence Act, June 11, 1947 (10
& 11 Geo. VI, c. 30). This British Act took into
account the demand of the Muslim League to
allow the establishment of the Muslim State of
Pakistan consisting of those areas in the North
East and North West of the British Indian
territories where the Muslim population formed a
majority. According to the constitution of each of
the new Dominions the Head of State was a
Governor-General who was no longer subject to
the instructions of the British Government. In the
Dominion of India the office of Govemor-General
was held by the last Governor-General of British
India, Lord Mountbatten of Burma.

(b) The accession of the Princely States

The British Government considered that the
suzerainty over the Princely States could not be
effectively exerted after the end of its rule over
British India. Accordingly, the Indian Independence
Act, 1947 released the States from all their
obligations to the Crown. All that the Dominion
Governments inherited from the paramount power
was the proviso to section 7 of the Indian
Independence Act, which provided for the continuance,
until denounced by either of the parties,
of agreements between the Indian States and the
Central and Provincial Govemments of former
British India in regard to specified technical
matters, such as customs, posts and telegraphs.
The problem of the future relationship of the
Princely States to the new Dominions, and
especially the question which Dominion a Princely
State should eventually accede to, were not only
likely to create future tensions between the
Dominion governments and the Princely States;
they also provided sufficient reason for the even
more dangerous conflict between the two Dominions
themselves.

On Independence Day almost all of the 562
Indian States had signed instruments of accession
to one of the new Dominions or had at least signed
a standstiII agreement with the Dominion to which
they intended to accede. Three princes, however,
whose choice was of particular political importance
because of the size and the geographical situation
of their States had not made known their intent to
accede to one of the Dominions at this time. These
were the Nizam of Hyderabad, the Nabob of
Junagadh and the Maharaja of Jammu and
Kashmir.

Immediately after attaining independence,
India and Hyderabad were involved in a
major conflict in the course of which, on August
21, 1948, the Nizam of Hyderabad called upon the
~ Uni ted Nations Security Council for help
against India. On September 13, 1948 Indian
troops entered Hyderabad and occupied the State.
On September 22, 1948 the Nizam communicated
to the  Uni ted Nations Secretary-General that
he had advised his delegation to withdraw the case.
In his Firman of November 23, 1949, the Nizam
declared the new constitution of India to be
applicable to Hyderabad.

The State of Junagadh lay on the West coast of
the subcontinent and had no common border with
Pakistan. The Nabob, a Muslim, ruled over a
population consisting of 80 per cent Hindus and 20
per cent Muslims. On September 15,1947 Pakistan
made known that Junagadh had acceded to
Pakistan. In response to Indian protests
characterizing the accession as an attempt by
Pakistan to break the unity of India, Pakistan
justified her acceptance of the Nabob’s accession
by pointing out that the principles according to
which British India had been divided had not been
meant to govern the question of the accession of
Princely States to one of the new Dominions.
Pakistan dedared that the States had been
completely free in their decision as to which
Dominion they wanted to accede to. On November
9, 1947 Indian troops occupied the State of
Junagadh. In February 1948 a plebiscite was
held in Junagadh on the question of the State’s
accession to India or Pakistan. As India cornmunicated
to the UN Security Council, 190 000
voters had voted in favour of India, but only 91 in
favour of Pakistan. Pakistan has refused to accept
this result on the grounds that the plebiscite was
neither valid nor impartial.

3. The Accession of Jammu and Kashmir to
India

(a) The events leading to accession

By the end of British rule in India, Maharaja
Hari Singh, the ruler of Jammu and Kashmir, had
not made known whether he intended to declare
his State’s aeeession to one of the new Dominions.
Since his State had common borders not only with
both of the Dominions, but also with other States
(Afghanistan, China) he apparently hoped to be
able to keep his State independent. On August 12,
1947 he sent identical telegrams to the future
Dominion Govemments, which were due to
assume power on August 15, proposing the
conclusion of standstill agreements in every matter
in which there had been agreements with British
Indian authorities. These agreements should
continue to be valid between his State and the
Dominions until replaced by new agreements.
Pakistan accepted this proposal on August 16,
1947. The Indian Government proposed that the
parties enter into negotiations for a standstill
agreement at Delhi. Because of the events which
followed, such negotiations were not entered into.

On October 22, 1947 several thousand members
of the Muslim tribes living in the border area
between Pakistan and Afghanistan entered western
Jammu and Kashmir. According to Pakistan
this was a spontaneous reaction to the cruelties of
the Maharaja’s troops against the Muslim population
in the district of Poonch, Province of Jammu,
and against the Muslim refugees who crossed the
State on their way from East Punjab to West
Punjab, The tribal warriors moved through the
valley of the Jhelum river and on October 25
arrived at a point close to Srinagar. They
devastated and looted the towns on their way.

India contended that Pakistan had supplied the
tribesmen with military equipment, means of
transport and fuel.  Pakistan maintained that it was
impossible to prevent the invasion: Pakistani
nationals who had participated had been persons
fighting for the freedom of the population of the
State voluntarily and without a mandate of the
Pakistan Government. On October 24, 1947 the
Maharaja asked the Indian Government for
military assistance. The Defence Committee of the
Indian Governrnent, under the chairmanship of
Governor-General Lord Mountbatren. considered
the Maharaja’s appeal and resolved to take a
decision only after the Maharaja had declared the
accession of his State to the Dominion of India;
only a formal accession would provide a legal basis
beyond any doubt for a military intervention by
India. This was explained to the Maharaja on
October 26 at Jammu, where the Maharaja had
fled the night before.

As a result, the Maharaja signed the instrument
of accession on the same day. In a letter
aecompanying the instrument he explained to Lord
Mountbatten his reasons for this step, concluding
that he had no choice but to ask for the assistance
of the Dominion of India and that naturally this
help could not be provided unless his State accede
to the Dominion. On October 27 the Governor-
General of India signed his declaration of acceptance
of the instrument of accession. In a letter of
the same date informing the Maharaja he stated:
„Your Highness’s letter dated 26 October 1947
has been delivered to me by Mr. VP. Menon. In
the special circumstances mentioned by Your
Highness, my Government have decided to
accept the accession of Kashmir State to the
Dominion of India. In consistence with their
policy that in the case of any State where the
issue of accession has been the subject of
dispute, the question of accession should be
decided in accordance with the wishes of the
people of the State, it is my Government’s wish
that, as soon as law and order have been
restored in Kashmir and its soil cleared of the
invader, the question of the State’s accession
should be settled by a reference to the people.

On the same day Indian troops were flown to
Srinagar. By December 1947 they had pushed the
tribesmen back to a line about 30 kilometres from
the Pakistan border. There the front stabilized. On
the other side of the front the Azad (Free)
Kashmir Government, which had been proclaimed
as a Government-in-exile in Pakistan in
Ocrober 1947, took over command. From May
1948 onwards the Pakistan army officially participated
in the fighting. In the sparsely populated
northern territories of the State where heavy
fighting was going on Pakistan took over command
in May 1948.

(b) Pakistan’s legal point of view

Pakistan held the accession of Jammu and
Kashmir to India to be „null and void“ for four
reasons: (1) The State of Jammu and Kashmir had
executed a standstill agreement with Pakistan on
August 15, 1947, which debarred the State from
entering into any kind of negotiation or agreement
with any other country. (2) The Maharaja had no
authority left to execute an instrument of accession,
because his people had successfully revolted,
compelling him to ftee from the capital. (3) The act
of accession was brought about by violence and
fraud and as such it was invalid ab initio, (4) The
Maharaja’s offer of accession was accepted by the
Governor-General of India on the condition that
as soon as law and order had been restored, the
question of the accession of the State would be
decided by a reference to the people. The Indian
Constitution Act made no provision for conditional
accession. The action of the Maharaja and
of the Government of India had, therefore, no
validity in law.

In the course of the debates in the UN Security
Council Pakistan also stated that the acceptance of
the State’s accession by India was debarred by the
so-called „Two Nations“ theory which, as Pakistan
claimed, had underlain the partition of the
subcontinent. According to Pakistan it had been
universally assumed that those Princely States the
population of which consisted of Muslim majorities
would accede to Pakistan.

(c) India’s legal point of view

In the view of India the State of Jammu and
Kashmir had become part of India by accession on
October 26, 1947. The standstill agreement
between Pakistan and Jammu and Kashmir had
had no effect on the competence of the Maharaja
to sign the instrument of accession to India. The
standstill agreement had been relevant only with
regard to administrative agreements which had
been in force between the State and former British
India and her provinces. The Maharaja’s government
had not been overthrown by a successful
revolution. On the contrary, the Maharaja had
been justified in asking a friendly neighbour for
help. Nor had the Governor-General of India
exceeded his constitutional competence. The
acceptance of the State’s accession was declared
unconditionally. Furthermore, the accession had
not been brought about by „fraud and violence“.
Only after an invasion from Pakistan territory had
India decided to accept the Maharaja’s instrument
of accession. Finally, India had never agreed to the
„Two Nations“ theory. Especially in the question
of the accession of Princely States the religion of
the population had been irrelevant.

4. Attempts by the United Nations to Settle the
Conflict

(a) UN Security Council and UNCIP

On January 1, 1948 India lodged a complaint
with the UN Security Council against Pakistan
under Art. 35 of the United Nations Charter
(Doc. S/628, p. 139). India alleged that a situation
existed which was likely to endanger the maintenance
of intemational peace and security. Pakistan
denied having given aid to the invaders, brought to
the attention of the Seeurity Couneil, under Art.
35 of the Charter, the existence of other disputes
(especially concerning Junagadh) and requested
tbat appropriate measures be adopted for tbeir
settlement.

On January 20, 1948 the Security Couneil
decided to set up the United Nations Commission
for India and Pakistan (UNCIP), to investigate the
facts (UN Charter, Art. 34; — Fact-Finding and
Inquiry) and to mediate between the two Dominion
governments (Doc. S/654, p. 64; — Conciliation
and Mediation). On April 21, 1948 the
Security Council recommended specific measures
for a settlement of the conftict, aiming at a
restoration of peace and order and the preparation
and bolding of a plebiscite (Doc. S1726, p. 8). The
resolution was repudiated by both governments
because, as they asserted, the plan of settlement
did not take into account their locus standi towards
Jammu and Kashmir. However, both governments
declared themselves willing to enter into dialogue
with the Commission.

(b) The UNCIP resolutions of August 13, 1948
and January 5, 1949
In the course of its mediation efforts the
commission submitted to tbe governments of India
and Pakistan its proposals, which were contained
in two complementary resolutions of August 13,
1948 (Doc S/ 1100, p.32) and January 5, 1949
(Doc, S/1196, p.23). Both governments finally
accepted these resolutions. In later debates in the
Security Council they both asserted that, apart
from general international law, a legal obligation
to settle the Kashmir conftict could be based on
these resolutions only (Doc. S/PV 761 para. 115;
S/PV 767, para. 97).
The resolution of August 13, 1948 contained a
settlement proposal consisting of three parts. The
first part called for a cease-fire order which should
be controlled by United Nations military observers
(~ Suspension of Hostilities). In the second part
the Commission recommended a truce agreement
envisaging the ~ demilitarization of the State.
According to part three, the two governments
should reaffirm their wish that the future status of
Jammu and Kashmir should be determined in
accordance with the will of the people (– Self-
Determination). They should agree to enter into
consultations with the Commission to determine
fair and equitable conditions whereby
such free expression would be assured.

Since Pakistan was not willing to accept this resolution
unless Part III of tbe resolution was amplified by
specific rules dealing with the final settlement, the
Commission on December 11, 1948 elaborated a
catalogue of additional „Basic Principles for a
Plebiscite“ (Doc. S/1196, Annex 3, p. 33). The
first principle was that the question of the
accession of the State of Jammu and Kashmir to
India or Pakistan should be decided through the
democratic method of a free and impartial
plebiscite. The plebiscite should be held when it
was found by the Commission that the cease-fire
and truce arrangements had been carried out and
arrangements for the plebiscite had been completed,
Other principles dealt with the nomination
of a Plebiscite Administrator and the final
demilitarization of the State. In view of the
explanations given by the Commission on the
interpretation of its proposals both India and
Pakistan finally accepted the Commission’s proposals,
including its resolution of August 13, 1948.
Thereafter the Commission passed its resolution of
January 5, 1949 (Doc. S/1196, p. 23) containing
the basic principles for a plebiscite as proposed on
Deeember 11, 1948. The Commission reported to
the Security Council that India and Pakistan had
accepted the mediation plan contained in these
resolutions.

(c) Implementation of the UNCIP resolutions

Part I of the resolution of August 13, 1948 led to
a cease-fire on January 1, 1949. India and Pakistan
agreed on a cease-fire line on July 27, 1949 which
has hitherto been altered only slightly. The
implementation of the cease-fire has been observed
by the Uni ted Nations Military Observer
Group for India and Pakistan (UNMOGIP) ever
since (-+ Uni ted Nations Peacekeeping System).
The mediation efforts of the Commission to bring
about a truce agreement according to Part II of the
resolution of August 13, 1948 have, however,
failed. The Commission was confronted with three
main impediments to a truce agreement. These
were the synchronization of the withdrawal of
Indian and Pakistani troops; the question whether
the disarmament of Azad (Free) Kashmir troops
should be dealt with in the truce agreement or only
at the time of the realization of the principles for a
plebiscite; and finally, the problem whether India
should be allowed to maintain garrisons in the
northern areas of the State. The attitudes of both
governments regarding these problems stem from
the premises which form the basis of their cases:
Whereas India considers Jammu and Kashmir as
part of her territory, Pakistan maintains that the
aecession was null and void.

In its resolution of March 14, 1950 (Doc. S/1469) the Security
Council replaced the UNCIP by a United Nations
Representative for India and Pakistan (UNRIP).
The UNRIP (Sir Owen Dixon, followed by Frank
P. Graham), however, remained unsuccessful, as
were the mediation efforts of the Presidents of the
Security Council (General McNaughton and
Gunnar Jarring).

(d) India’s withdrawal from the UNCIP
resolutions

On February 5, 1964 India declared in the
Security Council (Doc.  S/PV 1088, p. 13) that she
no longer felt bound by the two UNCIP resolutions.
Moreover, under no circumstances would
India agree to the holding of a plebiscite. India
contended that the basis for a plebiscite had
disappeared because Pakistan had not „vacated its
aggression“ and because, by the passage of time
and the intervention of various factors, the
resolutions had become obsolete. Holding a
plebiscite in Kashmir would pose a threat to the
integration of India and a danger to the principle
of secularism. Accordingly, when acceding to the
International  Human Rights Covenants, India
declared that the words „the right of self-determination“
appearing in Art. 1 of the Covenants
applied only to the peoples under foreign domination
and not „to sovereign independent States or
to a section of a people or nation – which is the
essence of national integrity“.

Pakistan has denied the validity of India’s position (S/6292), pointing
out that the agreement to negotiate a truce
agreement and to hold a plebiscite could not be
nullified by India’s unilateral action; neither had
there been a breach of Pakistan’s obligations under
the resolutions in the course of negotiations, nor a
fundamental change of circumstances
(- Clausula rebus sie stantibus).

In their Declaration of Tashkent (January 10,
1966, UNTS, Vol. 560, p. 39) and of Simla (July 3,
1972, ILM, Vol. 11 (1972) p. 954) the two States
ended the armed conftict which had broken out at
that time between them; they did not, however,
succeed in overcoming their disagreement on the
main issues. The points of view of both States
being irreconcilable, the crisis over Jammu and
Kashmir seems doomed to continue for the
foreseeable future.

Documents

Treaty of Amritsar of March 16, 1846 (BFSP, Vol. 38,
p.8OO).
India Independence Act, 10 and 11 Geo. VI, Ch. 30.
Instrument of Accession, S.C.O.R., 12th year, Supplement
for January, February and March 1957,p. 55.
Government of India (ed.), White Paper on Jammu and
Kashmir (1948).
Governmentof India (ed.), White Paper on Indian States
(1950).
United NationsCommissionfor India and Pakistan, First
Interim report S/1100 Nov. 22, 1948 (S.C.O.R., 3rd
year, Supplement for November 1948); Second
Interim Report S/1196 Jan. 10, 1949 (S.C.O.R.,
Supplement for January 1949);Third Interim Report
S/1430 (S.C.O.R.. 4th year, Special Supplement No.
7).

Bibliography

T. DAS, Status of Hyderabad During and After British
Rule in India, AJIL Vol. 43 (1949) 57-72.
LORD MOUNTBATTEN OF BURMA, Time Only to Look
Forward (1949).
G.M.D. SUFI, Kashmir, Being a History of Kashmir, 2 vols.
(1949).
C. EAGLETON, The Case of Hyderabad before the
Security Council, AJIL Vol. 44 (1950) 277-302.
P. POlTER, The Principal Legal and Political Problems
Involved in the Kashmir Case, AJIL Vol. 44 (1950)
361-363.
A.A. KHAN, Verdict on Kashmir (1951).
H. ALEXANDER, Kashmir (1952).
A. CAMPBELL·JOHNSON, Mission with Mountbatten
(1952).
P.N. BAZAZ, The History of the Struggle for Freedom in
Kashmir (1953).
M. BRECHER, The Struggle for Kashmir (1953).
P. DIWAN, Kashmir and the Indian Union: The Legal
Position, ICLQ (1953) 333-353.
M.K. NAWAZ, The Kashmir Problem, Indian Yearbook of
International Affairs, Vol. 2 (1953) 181-192.
J. KORBEL, Danger in Kashmir (1954).
C.H. ALEXANDROWICZ·ALEXANDER, Le Cachemire: Aspect
juridique du conflit Indo-Pakistanais, ÖZÖR Vol.
7 (1956) 296-308.
C.B. BIRDWOOD, Two Nations and Kashmir (1956).
M.M.R. KHAN, The Uni ted Nations and Kashrnir (1956).
V.P. MENON, The Story of the Integration of the Indian
States (1956).
T.S.R. RAO, Some Problems of International Law in India,
Indian Yearbook of International Affairs, Vol. 6 (1957)
3-45.
C.!. CHACKO, India’s Contribution to the Field of
International Law Concepts, Rd.C. Vol. 93 (1958 I)
121-221.
S.M.I. KHAN, The Kashmir Saga (1965).
S. GUPTA, Kashmir; a Study in Indian-Pakistan Relation
(1966).
A. LAMB, Crisis in Kashmir 1947 to 1966 (1966).
H.S.G. RAO, Legal Aspects of the Kashmir Problem
(1967).
R. GEIGER, Die Kaschmirfrage im Lichte des Völkerrechts
(1970).
M.S. CHAUDHRY, Der Kashmirkonflikt, Vol. 3 (1977).
H.O. AGARWAL, Kashmir Problem: Its legal Aspects
(1979).
T.S.R. RAO, India’s International Disputes, Some Legal
Aspects, AVR Vol. 22 (1984) 22-44.
RUDOLF GEIGER