Srinagar: The territory of J&K by virtue of being an internationally recognised dispute between India and Pakistan comes under the Geneva Conventions and the Hague Regulations of 1907, of which India is a signatory along with 195 other nation states. Any move to alter the demographic character of this disputed region would violate international laws and conventions of international bodies.
Article 42 of the 1907 Hague Regulations (HR) states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
As Pakistan refers to Indian-administered Kashmir as an occupied territory under the authority of the hostile Indian Army, and India refers to Pak-administered Kashmir as occupied by the hostile Pakistan Army, either of the countries can approach international tribunals to protest any change made in the region’s demography.
The Fourth Geneva Conventions of 1949, which deal with the protection of civilians in time of war, are applicable to undivided J&K. As per Article 2 of the Fourth Geneva Conventions, the signatories are bound by the convention in conflicts where war has not been declared and in an occupation of another country’s territory.
“In addition to the provisions which shall be implemented in peacetime, the Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them,” states the Article.
In the same convention, Article 49 states that “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the occupying power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”
Thus, neither India nor Pakistan has any right under international laws to change the demographic character of any part of undivided J&K.
Legal expert and political analyst Dr Sheikh Showkat Hussain says that usually those territories are considered occupied which have been conquered by the army of other nations during a time of war. International laws and conventions automatically become applicable to these occupied regions.
“What we also have to look at is how the people of the occupied territory perceive the army of other nations. If it (occupying army) is considered hostile, then it is an occupation,” Hussain said.
Protocol I, a 1977 protocol amendment to the Geneva Conventions, says that where “armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes are to be considered international conflicts”.
In 1993, the United Nations Security Council adopted a report from the Secretary-General and a Commission of Experts that concluded that the Geneva Conventions had passed into the body of customary international law, thus making them binding on non-signatories to the Conventions whenever they engage in armed conflicts.
Pakistan being a party to the Kashmir dispute can challenge the Indian move of altering J&K’s demography by scrapping Article 35A. It can approach the International Court of Justice (ICJ), accusing India of violating the Geneva Conventions.