Int’l law should govern territories like Kashmir, UK professor’s book

The Brighter Kashmir

Int’l law should govern territories like Kashmir, UK professor’s book

May 22, 2019 |

IRFAN MEHRAJ/SRINAGAR

Should the law of occupation govern territories like Jammu and Kashmir, which is one of the longest pending dispute under United Nations and has claimed thousands of lives? This is a question various scholars of international law and human rights activists have dealt with but for Yutaka Arai-Takahashi, a professor at the University of Kent in the United Kingdom, “Kashmir should be governed by international law.”

Takahashi is a professor of Law and his book The Law of Occupation tackles the question of territories governed by the law of occupation and international law.

Law of occupation is an international humanitarian law that defines occupation, the laws that apply and how people are protected under these laws.

Jammu and Kashmir is an internationally acknowledged dispute between India and Pakistan under the United Nations, but India’s intransigence towards the applicability of International Humanitarian Law – which governs armed conflict situations around the world, in J&K has meant that civilians killed in conflict situation allegedly by armed forces are not treated at par with other conflicts of the world, where IHL is applicable.

Takashi’s in his book The Law of Occupation explicitly acknowledges that “occupation law” should govern territories like Kashmir in light of the development of this law over the years.

Takashi argues that although “that not only a territory of an adverse party to the conflict but also that of neutral powers or even co-belligerents is covered by the notion of occupation,” but Kashmir is a contentious issue for legal scholars to determine.

“Most contentious is the legal characterisation of the control over disputed territories, such as Kashmir, but even in such circumstances, juridically speaking, the state exercising actual control over a disputed territory should be prevented from challenging the applicability of the law of occupation on the basis that its control remains within its territorial boundary,” Takahashi writes in Chapter 1 of the book.

He further writes about the legality of occupation, and how occupational law should govern disputed territories like Kashmir, Nagorno-Karabav, Spratley Islands and southern Kuril Islands/Northern Territories and how these laws apply and protect civilians.

Legal experts say this is the first reference in international legal scholarship about Kashmir.

“Takahashi’s reference is important for two reasons. One, that Kashmir is hardly discussed in legal academic circles. Two, because it’s a tough case where India says Kashmir is its own territory, and the control is not just by the belligerent army. In fact, Takahashi says that Kashmir is a tough case. In fact, he doesn’t necessarily say that it’s an occupation in the strictest sense but a case where international law on occupation shall apply,” says Aman, a New Delhi based expert in international humanitarian law.

Aman said that the traditional definition of “occupation” under international law has a very archaic understanding, founded in experiences from World War. “The occupations then were temporary, and largely maintained by the belligerent army.”

With time, the nature of occupation changed, he said, when “new situations emerged where sovereigns exercised control over territories without popular support and tried to legitimise it’s claim through law (or lay legal claim to territory) like in the case of Kashmir, or like parts Israel occupies.”