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.

By Dr. Syed Nazir Gilani 

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.