Kashmir in Law

https://www.deccanherald.com/archives/edit-page/the-kashmir-question-761033.html

The Kashmir question

Territorially,Kashmir’s reorganisation isn’t unprecedented in post-colonies. Asian states need to, however, think people-centric

Since 1947, India has exchanged, ceded, divided and assimilated territories. India used force to assimilate the princely kingdoms of Hyderabad and Junagarh. In 1951, India gave up territory from Assam to Bhutan even as it divided and exchanged with Pakistan a Berubari enclave. India used force in Goa, but France returned Pondicherry by an agreement. Sikkim joined India by an international agreement.

Upon India’s complaint, the United Nations Security Council in April 1948 set up a commission for “mediation at the disposal of the Governments of India and Pakistan” on Kashmir. The UNSC suggested that Pakistan should withdraw “tribesmen and Pakistani nationals” who have “entered the state for the purposes of fighting”. To India, the UNSC suggested withdrawing “forces” and “reducing them progressively to the minimum strength required for the support of the civil power in the maintenance of law and order.”

The king of Jammu and Kashmir signed an “Instrument of Accession governing the accession of the State to the Dominion of India.” Article 370 in the Indian Constitution, titled “temporary provisions with respect to the State of Jammu and Kashmir,” became operative from November 1952 on the recommendation of the provincial Constituent Assembly. Pakistan’s civil war resulted in the birth of Bangladesh in 1971. Subsequently, the Simla Agreement, 1972, between Delhi and Islamabad called for “a final settlement of Jammu and Kashmir” issue. Jammu and Kashmir, with Ladakh bordering China, has oscillated between UN multilateralism, Simla bilateralism and Indian constitutionalism. Militancy burgeoned in Kashmir since 1972 even as the Ladakh boundary with China simmered. India increased its forces in Kashmir. In August 2019, India reorganized the state of Jammu and Kashmir by dividing it into two Union Territories – Jammu & Kashmir and Ladakh -- ending Kashmir’s partial autonomy under Article 370. China objected to Ladakh’s reorganization as the undermining of “China’s territorial sovereignty by unilaterally changing its (India’s) domestic law.” Is Kashmir similar or not to India’s other territorial experiences?

India under Nehru championed internationalism. In June 1962, the International Court of Justice had ruled in favour of Cambodia in the Temple of Preah Vihear case. Cambodia had won on the basis of French colonial stationary, maps and communiqué. Wellington Koo, a Taiwanese judge, penned a dissent, as it were, imagining China disputing at the ICJ with ex-colonial states. Beijing, however, replaced Taiwan at the UN in 1971, essaying a firm bilateral approach to boundaries. Contrarily, in July-August 1962, India’s legal adviser, given that parties to the Cambodia-Thailand dispute were Asian, suggested that the Temple case become a binding precedent for the IndiaChina boundary dispute. In Cambodia’s win based on French colonial stationery, Beijing saw a script for India’s victory using British colonial treaties. China responded to India’s suggestion, in October 1962, with the Sino-Indian war. India now became sceptical of international adjudication.

In 1974, in conformity with the ICJ Statute, India accepted the Hague court’s “compulsory

jurisdiction” over international disputes but with eleven exceptions. First, India withdrew disputes with Commonwealth nations from the ICJ’s compulsory jurisdiction. Under the declaration’s paragraph 10(a), the ICJ was to have no jurisdiction concerning the “status” of India’s “territory or the modification or delimitation” of India’s “frontiers” and “boundaries”. Next, India excluded disputes “essentially within” India’s “domestic jurisdiction”. Thus, India had, by virtue of Articles 370 and 35A, made Kashmir a constitutional issue.

Perfecting uti possidetis

India tactically declared its exclusion of the ICJ jurisdiction, in 1974, right before the third UN Law of the Sea conference started. Why? Might paragraph 10(c) of India’s declaration answer this? The declaration excluded from the ICJ disputes about “the condition and status of its islands, bays and gulfs and that of the bays and gulfs that for historical reasons belong to it.” Indian possessions in the ‘Bay’ of Bengal were, axer all, perfected by British colonialism as well as Japanese occupation. The Japanese had supported—like Tokyo’s support for Pu Yi in Manchuria— Subhas Chandra Bose’s declaration of the Indian government in the Bay of Bengal. Uncannily, China’s December 2014 position paper axer it submitted a 9-dash line map to the UN spoke of “historic bays or titles” and “historic rights” to “waters”.

Exchanging Territories

Justice Gajendragadkar’s Berubari opinion said the Constitution espouses no “expansionist political philosophy” and from a “human point of view, great hardship” is inevitable in territory exchange.

In 1962, after the ICJ decision in Right of Passage over Indian Territory (Portugal vs India), India annexed Goa, a Portuguese ‘bluewater’ province, using force. India found support in the UN General Assembly only because Goa, Daman and Diu were Portuguese ‘bluewater’ provinces. International law, tellingly, prescribes self-determination from ‘bluewater’ colonialism.

In 1975, Sikkim, originally a Himalayan princely sovereign, joined the Indian Union under Article 2 of the Indian Constitution. Article 2 refers to the “admission” of new sovereigns into the Indian Union. Contrarily, Article 3, under which India assimilated Kashmir, deals with the “formation of new States and alteration of areas, boundaries or names of existing States”— “states” in the Indian Constitution referring to provinces — under the Parliament’s constituent power of Article 368.

The “admission of Sikkim”, India argued in the Paudiyal case, constituted an “acquisition of territory by cession in international law” with “terms and conditions” that are “political in nature”. Nevertheless, Rosalyn Higgins, a British ICJ judge, had characterized Sikkim as “overrun by force” and incompatible with “self-determination,” ewectively confusing Sikkim with Goa. Asian states are today fighting over land and sea that in international law are governed by, respectively, the UN Charter and the UN Law of the Sea. Territorially, Kashmir’s reorganisation isn’t unprecedented in post-colonies. Asian states need to, however, think people-centrically.

(The writer is Associate Professor, Jindal Global Law School)

Indus Water Treaty

SOURCE:  https://www.worldbank.org/en/region/sar/brief/fact-sheet-the-indus-waters-treaty-1960-and-the-world-bank

Fact Sheet: The Indus Waters Treaty 1960 and the Role of the World Bank
June 11, 2018
Origins of the Treaty:

The Indus Waters Treaty was signed in 1960 after nine years of negotiations between India and Pakistan with the help of the World Bank, which is also a signatory. The negotiations were the initiative of former World Bank President Eugene Black. Seen as one of the most successful international treaties, it has survived frequent tensions, including conflict, and has provided a framework for irrigation and hydropower development for more than half a century. Former U.S. President Dwight Eisenhower described it as "one bright spot ... in a very depressing world picture that we see so often."

How the Treaty works:

The Treaty sets out a mechanism for cooperation and information exchange between the two countries regarding their use of the rivers, known as the Permanent Indus Commission, which has a commissioner from each country. The Treaty also sets forth distinct procedures to handle issues which may arise: “questions” are handled by the Commission; “differences” are to be resolved by a Neutral Expert; and “disputes” are to be referred to a seven-member arbitral tribunal called the “Court of Arbitration.” As a signatory to the Treaty, the World Bank’s role is limited and procedural. In particular, its role in relation to “differences” and “disputes” is limited to the designation of people to fulfill certain roles when requested by either or both of the parties.

What the disagreement is about:

India and Pakistan disagree about the construction of the Kishenganga (330 megawatts) and Ratle (850 megawatts) hydroelectric power plants being built by India (the World Bank is not financing either project).  The two countries disagree over whether the technical design features of the two hydroelectric plants contravene the Treaty. The plants are on respectively a tributary of the Jhelum and the Chenab Rivers. The Treaty designates these two rivers as well as the Indus as the “Western Rivers” to which Pakistan has unrestricted use. Among other uses, under the Treaty, India is permitted to construct hydroelectric power facilities on these rivers subject to constraints specified in Annexures to the Treaty. Talks related to the Kishenganga and Ratle hydroelectric power plants are ongoing.

Different Treaty mechanisms have been sought by India and Pakistan:

Pakistan asked the World Bank to facilitate the setting up of a Court of Arbitration to look into its concerns about the designs of the two hydroelectric power projects. India asked for the appointment of a Neutral Expert for the same purpose. These requests came after the Permanent Indus Commission had been engaged in discussions on the matter for a while. During several months prior to December 12, 2016, the World Bank sought to fulfil its procedural obligations with respect to both the Court of Arbitration and the Neutral Expert. The Treaty does not empower the World Bank to choose whether one procedure should take precedence over the other; rather it vests the determination of jurisdictional competence on each of the two mechanisms. At the same time, the World Bank actively encouraged both countries to agree amicably on a mechanism to address the issues.

Pausing Treaty processes and working with India and Pakistan:

On December 12, 2016, World Bank Group President Jim Yong Kim announced that the World Bank would pause before taking further steps in each of the two processes requested by the parties. Both India and Pakistan stated that processing the requests regarding the Neutral Expert and Court of Arbitration simultaneously presented a substantial threat to the Treaty, since it risked contradictory outcomes and worked against the spirit of goodwill and friendship that underpins the Treaty. The announcement by the Bank to pause the processes was taken to protect the Treaty in the interests of both countries.

For more than a year since late 2016, the World Bank has worked tirelessly to seek an amicable resolution to the most recent disagreement and to protect the Treaty. Dozens of high-level meetings have been convened and a variety of proposals have been discussed. The World Bank remains committed to act in good faith and with complete impartiality and transparency in fulfilling its responsibilities under the Treaty, while continuing to assist the countries.

A COMPLETE TEXT OF THE TREATY, ALONG WITH THE ANNEXURES, CAN BE ACCESSED AT THE MINISTRY OF EXTERNAL AFFAIRS WEBSITE HERE - https://mea.gov.in/bilateral-documents.htm?dtl/6439/Indus

Some notes on IOs

CLASSIFICATION AND COUNTING

The United Nations and the Yearbook of International Organizations (https://uia.org/ybio/)
When the Union of International Associations resumed operations after World War II, officials at the United Nations Secretariat recognized the importance of its status as an independent research institute. When arrangements had been made for it to undertake publication of the 4th (1951-52) edition of the Yearbook of International Organizations, the Economic and Social Council of the United Nations adopted unanimously at its 11th session on 20 July 1950, Resolution 334 B (XI):

The Economic and Social Council
Considering that the Union of International Associations had published a Yearbook of International Organizations which includes information regarding a very large number of international non-governmental organizations, and

Taking note of the intention of the Union of International Associations to continue the publication of such a yearbook, and to take into account in future editions suggestions offered and information made available by the United Nations.

Decides not to give any further consideration, at this time, to the publication by the United Nations of a handbook concerning non-governmental organizations.

After the appearance of the 4th edition the Economic and Social Council evidently felt that its confidence had not been misplaced, as at its 16th session (1953) it accepted the following recommendation by the Council Committee on Non-Governmental Organizations:

The Committee unanimously expressed its appreciation of the value and usefulness of the Yearbook of International Organizations published by the Union of International Associations. Members voiced the hope that the work of the Union would become even better known both to the public and to Member States and that its continuation would be secured. (UN Doc E/2489)

The annual Report of the Secretary-General on the Work of the Organization has regularly mentioned, in the final paragraph of the chapter on economic and social activities at United Nations headquarters, the phrase:

Under Council Resolution 334 B (XI), the Secretariat continues to co-operate with the Union of International Associations in the preparation of the annual edition of the Yearbook of International Organizations.

Referring to Resolution 128B (VI) of 10 March 1948 of the Economic and Social Council – which called for the compilation of a list of inter-governmental institutions with a view to examination by the Council of possible duplication and dispersal of efforts by such institutions – the Secretary-General of the UN, in a note dated 17 November 1955 (E/2088), proposed that the Council, if it should decide to undertake, as in the past, a general examination of the structure of intergovernmental organizations, should adopt as its basic document the Yearbook of International Organizations.

Source: https://uia.org/ecosocres

A CODEBOOK on classifying IOs is available here - https://uia.org/sites/uia.org/files/misc_pdfs/Types_of_organization.pdf

READING REBECCA WALLACE BOOK

Some students had requested on how to read the Rebecca Wallace book. Here is a table with the respective chapters that will help you to engage with the material in Malcolm Shaw Book.

S.No.	Topic	Malcolm Shaw Chapter	Rebecca Wallace Chapter
1.	Sources	3	2
2.	Institutions	5	4
3.	IL and Municipal Law	4	3
4.	State, Territory, Recognition	5,9,10	4,5
5.	Treaties	16	10
6.	IO’s	Pease 1, 2, 3	N/A
7.	IO’s – Trade, Security, Development	Pease 5, 6, 7	11 (For Use of Force)
8.	Environmental Law	8, 15	N/A
9.	IHL	21	N/A
10.	Law of Sea	11	7
11.	ICL/ICJ	8	12, 6