THE world law is ostensibly clear that occupied territories can’t be unilaterally annexed by the occupying powers, this stance is rightly advocated by Pakistan’s Foreign Office. The currently announced ruling of the Indian Supreme Court (11 Dec) upholding revocation of article 370 — while declaring Kashmir as an integral part of the Indian Union — has no bearing over the status of Kashmir as globally recognized disputed territory. The law of the United Nations upholds that both Israel and India being occupying powers in Palestine and in Jammu and Kashmir respectively, in no way can act as the sovereign powers over these occupied territories. These disputes must be resolved through the valid UNSC resolutions on Palestine and Kashmir.
On December 11, the India Supreme Court ruled out that Article 370 was a temporary provision, revoked by Modi’s Government on 5 August 2019, and the territory was an integral part of India. The legal experts argue that Indian Supreme Court ruling is flawed being prejudicial to the fundamental rules of international law. By scarping Kashmiris’ right of autonomy in Jammu and Kashmir, Modi’s Government has incorporated the features of settler colonialism. Thus, any Indian/Israeli attempts —to change the status of the occupied territories in Palestine and Kashmir are ultra vires in so far as there are numerous UNSC resolutions on Palestine (see UNSC resolution 242) and Kashmir (see UNSC resolution 47 on Kashmir) which call on Israel and India to uphold the right of self-determination to the Palestinians and Kashmiris.
Limited mandate of occupying powers: Occupation under common Article 2 of the Geneva Convention 1949, is a situation where, during an international armed conflict, a territory, or parts thereof, comes under the effective provisional control of a foreign power. Substantially, occupying powers’ mandate in the occupied territories is provisional and temporary. It is why, occupation does not transfer any title of sovereignty to the occupier on the occupied territory.” Under Article 42 of the Hague Regulations, a ‘territory is considered occupied when it is actually placed under the authority of the hostile army.
Furthermore, Article 43 of the Hague Regulations states that the Occupying Power is responsible for restoring and ensuring, as far as possible, public order and safety, thereby invoking the application of the IHL and IHRL. And above all, the ICJ’s Wall Advisory Opinion in July, 2004 confirms the obligation of the Occupying Power to ensure the fulfilment and observance of human rights obligations towards the citizens of the occupied territory. Unlawful annexation of occupied territories: An expert opinion requested by the Norwegian Refuge Council (NRC) in 2017 argues, ‘’certain legislative changes adopted by an occupying power, may not only constitute violations of the law of belligerent occupation, but also amount to a certain form of annexation, prohibited by the jus ad bellum, the international law on the use of force’’. Arguably, as the occupying power (since 1967),’’ Israel is restricted by law to acting only as the temporary administrator of the Palestinian territory until it returns the territory in full, in as short and as reasonable a time as possible, back to the inherent sovereign and protected population: the Palestinian people.’’
Annexation has been defined as “the forcible acquisition of territory by one State at the expense of another” Indeed the forcible acquisition of territory is prohibited by the UN Charter under Article 2 paras 3 and 4 that respectively require Member States to “settle their international disputes by peaceful means” while refraining from the threat or use of force against the territorial integrity of a state. This is further endorsed by the seminal observation of Lassa Oppenheim, a renowned scholar of international law who argues, “There is not an atom of sovereignty in the authority of the occupying power.”
Moreover, an annexation is considered “in principle, as an internationally wrongful act. In addition, any attempt towards annexation fundamentally violates the right of self-determination of the people living in the annexed territory.’’ Therefore, a de facto annexation cannot be considered as dejure. India’s Reognaistion Order (20 May 2020), seeking Kashmir annexation holds no validity. According to the fourth Geneva Convention clause 49th, ‘’the occupying power shall not deport or transfer parts of its own population into the territories it occupies’’. Both Israel and India have been violating this clause. Juxtaposing the recently introduced Indian domicile law —with the ongoing settlements in the occupied West Bank and East Jerusalem—India is replicating the Israeli model in Kashmir.
So far,138 bills pertaining to annexation have been proposed since the 20th Knesset (March, 2016). Of these bills, 9 have been approved and became law in Israel. Yet notably, the occupier not being sovereign over the occupied territory, it cannot act as a sovereign legislator. Conversely, Israeli Knesset and Indian Lok Sabha act as the legislative authority amid occupation. Since October 27, 1947, India has been acting as an occupying power in Jammu and Kashmir. And since the aftermath of 1967 War, Israel has been acting as an occupying power in Palestine (see Oslo I-II).
The embolden truth: the Israeli and Indian domestic legislations— made in the Knesset and Lok Sabha accompanied by the Israeli and Indian Supreme courts’ chauvinistic rulings— have no moral and legal bearing over the present and future status of occupied territories. Recent unilateral acts in both India and Israel intrinsically threaten the writ of international law –evidenced by Israel’s ferocious war in Gaza.
Given an established discernment of the facts that both Israel and India have blatantly violated the fundamental principles of the IHL during occupation and while they are illegal occupants in Palestine and Kashmir, it is the responsibility of the international community to profoundly conclude this chapter of prolonged Israeli and Indian occupations by establishing the framework of international law as the basic path towards a just and durable resolutions of the Kashmiri and the Palestinian disputes. On 13 December, the OIC chartered its warranted reservations regarding the Indian court ruling regarding the IIOJK and reiterated its call to the status quo ante by reversing all illegal and unilateral measures taken by India ever since, seeking to change the internationally recognized disputed territory of Jammu and Kashmir.
—The writer, an independent ‘IR’ researcher-cum-international law analyst based in Pakistan, is member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies, also a member of Washington Foreign Law Society and European Society of International Law. He deals with the strategic and nuclear issues.
Email: [email protected]
views expressed are writer’s own.
