Clarifying the Jurisprudence of the Kashmir Case

As of May 28, 2024, the jurisprudence surrounding the Kashmir issue remains complex. The
Indian government’s actions on August 5, 2019, including the abrogation of Articles 370 and
35-A, and the subsequent affirmation of these actions by the Indian Supreme Court, do not
override Article 103 of the UN Charter. This article prioritizes obligations under the UN
Charter over other international agreements, which includes the jurisprudence developed from
the August 1947 Standstill Agreement with Pakistan and India’s acceptance of accession in
October 1947.

Article 1(2) of the UN Charter and UN Security Council Resolution 91 establish an estoppel
against any actions by India or Pakistan that could prejudice the equality of the people of
Kashmir, their right to self-determination, or the conduct of a free and fair plebiscite under UN
supervision. Despite the significant changes and confusion following India’s actions in 2019,
the Indian Supreme Court’s decision, and rumors of Pakistan’s possible annexation of Azad
Kashmir, it is crucial to understand the limits and possibilities of Indian and Pakistani control
over the region. This understanding hinges on the historical title and the evolving jurisprudence
in the field.

The source of Indian and Pakistani administrative controls over Jammu and Kashmir lies in the
UN framework. The jurisprudence of the Kashmir case has expanded beyond the interests of
the people of Kashmir and the Government of Pakistan to include the international community.
On October 31, 1947, the Prime Minister of India sent a telegram to the Prime Minister of
Pakistan, stating:

“Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are
restored and leave the decision regarding the future of this State to the people of the State is
not merely a pledge to your Government but also to the people of Kashmir and to the world.”

This assurance remains a significant element of the jurisprudence in the field. Therefore, the
Kashmir issue encompasses both pre-UN and post-UN components of international law and
diplomatic assurances, emphasizing the need for a nuanced understanding of the situation as it
stands today.

Dr. Syed Nazir Gilani

3 thoughts on “Clarifying the Jurisprudence of the Kashmir Case

  1. So, my understanding is that the people’s reference remains paramount. That neither any neighbouring country or the wider international community can bypass this reference.

    Your thoughts or even confirmation of this would be appreciated.

  2. When we discuss the position of Jammu Kashmir jurisprudence, it is essential first to establish position of India and Pakistan with regards to the status of the State, and number of questions arise:
    a) Pakistan accepting the Standstill Agreement
    b) Has India established the accession as a genuine act, without undue pressure
    c) The statements of leaders of both India and Pakistan before the accession and after, as the statement of the Indian PM to Pakistan.
    d) then we come to India taking the issue to the UN, undertakings there given, the first UN Resolution and the estoppel Resolution 91, which in a way freezes the matter and takes it out of the hands of India and Pakistan, and the decision is left in the hands of the people of Jammu Kashmir through a plebiscite. However both India and Pakistan have heavily vested interests and are unlikely to act jurisprudentially, therefore the UN should, according to its Charter seek demilitarisation of the state and the position as it was in 15/08/1947, placing UN troops for period and let the people to meet amongst themselves to come up with a future plan.

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