National and International Issues

The Map: Pakistan Asserts its Territorial Claims Under International Law

Maps are of vital importance in International Law. According to Sir Ian Brownlie, maps serve the purpose of proving a fact or law.1 Maps are primarily used as evidence to show a geographic feature relative to the other or certain areas, the location of natural features, distances or certain boundaries. Facts are proved with the help of maps like the existence, placement or identification of a certain area. However, the existence of a fact is often a question of the application of law.2 Maps, when used as evidence, can be easily dismissed by the courts if they are poorly sourced, inaccurate, inauthentic or biased. Consequently, the courts have adopted a restrictive approach towards their use or reliance and some have their own mapping experts.3 Given that a map is a legal fact, its existence has relevance in International Law even if the map is not necessarily an impartial product.4  


The present map is a welcoming development as it legally documents all of Pakistan’s claims in relation to its glaciered territory in Siachen, its territory in the Arabian Sea over Sir Creek, and further it also includes the State of Junagadh and reiterates its claim over the said State. This exercise also demonstrates control by Pakistan under International Law over the territory of Gilgit-Baltistan and Azad Jammu & Kashmir, notwithstanding their internal domestic constitutional structures. The map also identifies IIOJ&K as a disputed territory.



Territorial claims are asserted by States through their state structure which comprises the Executive, the Judiciary and the Legislature. A State may through its judiciary interpret a boundary treaty the way Pakistan’s Supreme Court did in the matter of the Durand Line.5 The State can also through a legislative action assert its title over a territory. India’s actions on August 5, 2019 is a recent example through which a State used a legislative instrument i.e., a Presidential Order to lay a claim not only over the territory of the Indian Illegally Occupied Jammu and Kashmir (IIOJ&K), but also Azad Jammu and Kashmir and Gilgit-Baltistan, pursuant to the revocation of Article 370 and Article 35-A.6 Thirdly, a State can also undertake an executive action to assert its claim over a territory by issuing maps, making declarations or even deploying armed forces as an extreme measure to contest its title over a territory. The deployment of armed forces in the Siachen area reflects this approach. India’s claim over the territory of Siachen has been contested continuously by the executive arm of Pakistan through its military presence. Executive actions can also include actions such as the arrest of fishermen in the disputed triangle of Sir Creek.
Maps under International Law are recognised to be formal evidence of a State’s intent and nature of claim. However, authentic maps are considered to be one of the most vehement and well deliberated articulations of asserting a claim over the title of a territory. On August 4, 2020, Pakistan through an executive act unveiled a new political map of the country. Section 6(r) of the Surveying and Mapping Act 2014 authorizes the Survey of Pakistan to publish authentic maps as directed by the Federal Government of Pakistan. Accordingly, the new political map reiterates Pakistan’s claims over the territory of Jammu and Kashmir and Ladakh. Moreover, the new map also lay claim over Junagadh in Gujarat and over Sir Creek. This move appears to be in response to India’s legislative action on August 5, 2019. However, Pakistan may still need to enact a counter legislative instrument to ensure legal parity.
The author has been advocating for a long time for Pakistan to document all its territorial claims, over land, glaciers or sea, through a single composite legislative or an executive action such as the issuance of a map. This is because the map serves as an important legal material to assert Pakistan’s claim over the territory in the event of a dispute or negotiations. In this regard, the author had presented this suggestion at various forums including seminars and roundtable discussions. 
In that context, the present map is a welcoming development as it legally documents all of Pakistan’s claims in relation to its glaciered territory in Siachen, its territory in the Arabian Sea over Sir Creek, and further it also includes the State of Junagadh and reiterates its claim over the said State. This exercise also demonstrates control by Pakistan under International Law over the territory of Gilgit-Baltistan and Azad Jammu & Kashmir, notwithstanding their internal domestic constitutional structures. The map also identifies IIOJ&K as a disputed territory. With regards to the Chinese border the map leaves its demarcation open-ended. In other words, the map does not prejudice Chinese efforts to establish the exact parameters of the Line of Actual Control (LAC) with India on the basis of its historic title or bilateral legal claims. 
In this context it is useful to look at the map features and the legal context associated with them as follows: 
▪ Siachen Glacier 
The Siachen Glacier is the second longest glacier in the world’s non-polar areas, measuring approximately 76 km in length. This geographical landmark remains the highest battlefield in the world, with the conflict between India and Pakistan now in its fourth decade one needs to fully understand the nature of conflict in order to understand why these countries incur such heavy costs for this uninhabitable place.
The years 1947-1948 saw significant armed conflict in Kashmir, with India and Pakistan both taking part in the hostilities, each asserting their position on the disputed territory. In order to prevent further deterioration of the situation the UN was tasked with brokering a peace between the opposing sides. A cessation of hostilities was achieved through the Karachi Agreement, a three-part resolution that dealt with establishing a ceasefire, terms of truce and procedures for negotiating a plebiscite (this plebiscite was the solution both states agreed upon and its objective was to provide permanent peace to the region). 
Subsequently the Ceasefire Line was established, this line divided the territory up to point NJ9842, beyond which lies the Siachen Glacier (among other geographical structures) and farther north the China border. This area was left out of the demarcated territory because it was impossible to purposefully inhabit and there was no troop presence there from either side. Later conflicts saw the updating of the Ceasefire Line and its evolution to the Line of Control in the Simla Agreement of 1972. However, the question of Siachen still remained unanswered.7 Both the Karachi and Simla Agreements use vague language when describing the Demarcating Lines. They state that the “Cease Fire Line shall proceed northwards towards [the] glaciers” and “thence onwards [a] line shall proceed northwards towards [the] glaciers” respectively.8
The region fell into Indian hands when the Indian army launched an expedition to capture a major chunk of the glacier in 1984 and has ever since maintained its control. Pakistan did contest this move militarily but was unable to fully secure control over the glacier and the warlike situation still exists between the two belligerents. 
Pakistan maintains under the Karachi, Tashkent and Simla agreements that the trajectory of the original Ceasefire Line/Line of Control if projected at NJ9842 to the China border assigns Siachen to Pakistan and the region lies within Pakistan’s side of the LoC. Similarly, the principle of geographical contiguity aids Pakistan. Considering Pakistan has ceded nearby territory to China through the Treaty, demonstrating its control of the ceded region, it is rational to suggest Pakistan would have extended control to a geographically contiguous area. Another consideration is India’s delay in asserting their claim, they only displayed their concerns later in the 1980s as an afterthought, suggesting acquiescence given the absence of protest. Additionally, Pakistan has displayed superior executive authority over the area such that all foreign mountaineering expeditions to the region were required to seek the Pakistani government’s permission. India cannot prove any such exercise of executive control on their behalf.9
The international community also recognized Siachen as being Pakistani territory. Atlases have shown Siachen on Pakistan’s side of the LoC. The Ministry of Information of India assisted and approved the work of some atlases that produced the maps showing Siachen to be Pakistan’s. The same view had been iterated by the author in 1998, whereupon he urged the Ministry of Foreign Affairs of Pakistan to amend the State’s map to reflect Siachen as a territory of Pakistan.
India’s position on the matter evidently contrasts that of Pakistan’s, however, the arguments provided by India are not as robust as those provided by Pakistan. India states that Kashmir belongs to them under its constitution and similarly Siachen also does. India contends that because delimitation has not been done on the ground beyond NJ9842, Siachen belongs to them as they have claim of title over the land and Pakistan does not have any equivalent claim.  India also mentions the fact that if a line was to be drawn vertically upwards from NJ9842 to meet the China border, Siachen would be on India’s side of the LoC. However, the validity of this claim is in dispute and does not carry legal weight until properly proven.
▪ Sir Creek 
Sir Creek is a 96 km long strip of water disputed between India and Pakistan in the Rann of Kutch marshlands. The Creek opens up in the Arabian Sea and roughly divides the Kutch region of Gujarat from the Sindh Province of Pakistan. A dispute has arisen over the issue of drawing a line between the two countries. It seems insignificant but there are important concerns at play relating to access to sea resources, which includes minerals, fish and other marine life.
This dispute can be traced back to the pre-independence period, around 1908, when an argument ensued between rulers of Kutch and Sindh. This issue was resolved in 1913 by the government of Bombay through a ruling which brought into existence the B-40 map of 1914.
In 1926, seven demarcations in the form of pillars were erected which showed the agreed upon boundary between the state of Kutch and Sindh. As per this agreement the boundary followed a longitudinal point called Border Post (BP) 1179 and from there ran parallel to the mouth of the Creek and then followed the eastern side of the creek. This was also known as the Green Reband.10
Around 1937-38, the Government of India published a map by the Surveyor General which affirmed that the East end was part of the border. In 1947, post-independence, the Eastern edge was converted into the concluding portion of an international border between India and Pakistan.
The Rann of Kutch arbitration took place in 1965 in which India failed to include BP 1175 on the grounds that it was not disputed thus there was no arbitration on the matter. Pakistan still maintains this position. Later in 1969 when the award was in the process of being implemented, India expressed reservations about the pillars, but this was ignored due to it not being included.
In 1972 and onwards, the 1982 Law of the Sea Convention was being negotiated which highlighted sea resource access, and India at that point started to raise issues regarding the demarcations of Sir Creek. India also stated that the border should now run from the western side not the eastern side which was inconsistent with their earlier stance. Pakistan rejected this claim and relies on the resolution maps of 1913-14 and the 1937 map of the Surveyor General of India. Pakistan till date believes that the issue was resolved and no dispute exists as India failed to bring forward any issues during the Kutch Arbitration. An option both parties had was to follow the Thalweg principle which means a line should be drawn in the deepest navigational point, which India denied.
Present day negotiations about Sir Creek are undertaken as per obligations under Article 76 (Continental Shelf), Article 74 (Exclusive Economic Zone) and Article 15 (Territorial Sea) of the 1982 Law of the Sea Convention. If both parties fail to reach an agreement, then Article 15 of the Convention will be invoked.
The author has given several talks on the significance of delimitation of Sir Creek including at the Naval War College of Pakistan. The author during the Interim Government in 2013, as a Federal Minister of Law, called upon the Chief of Naval Staff to lend support towards fast tracking the revisions in the Maritime Act in an effort to strengthen Pakistan’s claim over the concave coastline of Sir Creek.
▪ The Princely State of Junagadh
Junagadh is a district in the Indian state of Gujarat, located in the Kathiawar region extending to the coast of the Arabian Sea. At the time of partition, Junagadh enjoyed the status of a Princely State and was given a choice to join India or Pakistan or remain independent.11 The State of Junagadh, while completely surrounded by Indian territory, could only be accessed through the Arabian Sea. 
Lord Mountbatten, at the time of partition declared that the Princely States would be independent to decide for accession irrespective of geographical contiguity with India or Pakistan. However, later Lord Mountbatten emphasized that geographical contiguity should be observed. Theoretically, the State of Junagadh could have retained contact with Pakistan through sea and air in a manner similar to East Pakistan.
On August 15, 1947, Nawab Mahabat Khanji III, the then ruler of Junagadh signed the 'Instrument of Accession' to Pakistan. Following the culmination of the agreement, the Nawab of Junagadh visited Pakistan to discuss procedural details concerning accession. On November 9, 1947, India advanced its armed forces towards Junagadh and occupied the territory by force. The Nawab of Junagadh who was visiting Pakistan was unable to return. Quaid-i-Azam Muhammad Ali Jinnah approached the United Nations on the behalf of Pakistan for redressal of the matter, however, no progress has been made to this day. 
The author has worked extensively over the past ten years with the current Nawab of Junagadh, Muhammad Jahangir Khanji, on matters with respect to the current status of the State of Junagadh, assets and other matters. Upon extensive deliberation, it was established that the current status of the Nawab of Junagadh is that of a Sovereign in Exile, and that is how Pakistan continues to treat him. 
As per the Nawab of Junagadh, Muhammad Jahangir Khanji, the occupation of Junagadh by India is a violation of the Vienna Convention on Law of Treaties, 1969.12 He stated that “[t]he Junagadh state possesses the law of accession with Pakistan which meets all the criteria of accession under the Vienna Convention on Law of Treaties. The accession document is important as it is strong and lawful evidence. The instrument of accession is an international agreement, concluded between states in written form governed by international law in a single instrument. The issue will be legally alive as long as instrument of accession was intact.”13
Accordingly, the Instrument of Accession is an important legal instrument. It is an International Agreement, concluded between states, in written form, governed by international law. Therefore, the legal status of the Nawab of Junagadh is that of Sovereign in Exile – someone who has lost the possession of his territory but retains the legal document. Simply put, the Nawab has the registry but not possession of the State of Junagadh. Hence, the official map of Pakistan still reflects Junagadh as a territory of Pakistan, as a recognition of the Nawab of Junagadh’s Sovereign in Exile status. 
▪ Jammu and Kashmir
Kashmir is a 85,800 square miles long strip of land situated in the northwestern Indian subcontinent and has been a subject of dispute between India and Pakistan since 1947 following partition. The region is divided amongst three countries. Pakistan administers the Northwestern faction of the State which comprises Azad Kashmir and Gilgit-Baltistan. However, it should be noted that the entire Gilgit-Baltistan is not assumed to be part of the erstwhile state of J&K as several intervening developments need to be factored in.  The Central and Southeastern section i.e., Jammu & Kashmir and Ladakh are under the illegal occupation of India whereas, the Northeastern portion including Aksai Chin and the Trans-Karakoram Tract fall under the control of China.14
Prior to partition, Jammu & Kashmir was a Princely State under British rule, and as such was given the choice to remain independent or accede to either India or Pakistan.15 The then ruler of Jammu & Kashmir, Maharaja Hari Singh, initially chose to remain independent and did not accede to either dominion by August 15, 1947. The Maharaja purportedly signed an ‘Instrument of Accession’ to the dominion of India in October 1947, following disturbances and civil unrest within the State.16 The Governor General of India, Lord Mountbatten, in his response dated October  27, 1947, accepted the accession on the condition that "as soon as law and order [was] restored in Kashmir and her soil cleared of the invader the question of State's accession should be settled by a reference to the people."17
An armed conflict erupted between the two newly sovereign states of Pakistan and India whereby India approached the United Nations asking it to intervene. The United Nations recommended holding a plebiscite to settle the question of whether the state would join India or Pakistan.18 However, the two countries could not come to an agreement to demilitarise the region prior to the referendum being held. In July 1949, India and Pakistan signed an agreement to establish a ceasefire line,19 which was formalized as the Line of Control by India and Pakistan under the Simla Agreement, 1972.
Historically, Indian Illegally Occupied Kashmir held a special position within the Union of India as per Article 370 of the Constitution of India whereby the State of Jammu and Kashmir had significant autonomy over all matters except foreign affairs, defence and communication.20 In a legislative move, on August 5, 2019 India revoked Article 370 and Article 35-A thereby abolishing the special status of Jammu and Kashmir, and including it within the territory of India.
With regards to the treatment of IIOJ&K by India pursuant to its actions on August 5, the Research Society of International Law has written extensively on the legal implications for Kashmir dispute. The Legal Memorandum on the Legal Status of Jammu and Kashmir21 produced by RSIL is a remarkable appraisal of the illegality of the moves undertaken on August 5, 2019. The same is still widely referred to by academics and policymakers. Additionally, the Center of Excellence of International Law at the National Defence University, Islamabad has, under the supervision of the author, produced more detailed papers on a variety of concerns such as Building a Legal Case for War Crimes in India, Counter-Lawfare on Kashmir: The Case for a New Legal Narrative, and Legal Analysis of the Citizenship (Amendment) Act, 2019 and the National Register of Citizens of India.
Conclusion
After having issued the map, Pakistan needs to also document the claim in a legislative instrument that may take the form of amendments to the Constitution of Pakistan, or through any other appropriate legislative changes.  This is important because a legislative instrument by India on August 5, 2019 is far more wholesome, comprehensive and detail oriented, authorizing several successive steps and also effectively takes over the title of IIOJ&K and even asserts title over Gilgit-Baltistan and Azad Jammu & Kashmir. 
The said assertion of title needs to be neutralized by a similar move from Pakistan. It will be of great significance if the new political map is followed up by an effective legislative move.  India, by way of contrast, reversed this order and first made a legislative move that was later followed by the issuance of a map. On the other hand, Pakistan has found it convenient to issue a map first, however, there is a great need for an executive action followed by a comprehensive legislative move.


The writer is former Federal Law Minister President Research Society of International Law (RSIL) Advisor, Center for Excellence of International Law, NDU.
E-mail:[email protected]


1. Barrister Ian Brownlie, The Rule of Law International Affairs, vol 1, 156-161.
2. William Thomas Worster. The Role of Map in International Law. (2017). https://www.researchgate.net/publication/321636757_The_Role_of_the_Map_in_International_Law.
3. ibid.
4. ibid.
5. Superintendent, Land Customs Torkham (Khyber Agency) v. Zewar Khan (1969) PLDSC. 485.
6. The Constitution (Application to Jammu and Kashmir) Order, 2019.
7. Wirsing, Robert (1998), War or Peace on the Line of Control? The India-Pakistan Dispute over Kashmir Turns Fifty, University of Durham, International Boundaries Research Unit, pp. 9–11. https://www.dur.ac.uk/ibru/publications/download/?id=212.
8.  Karachi Agreement, (Cease-Fire Line Agreement) 1949.
9. Ahmer Bilal Soofi, “Can the Siachen Dispute be Resolved.” (Friday Times 1998). See also: Ahmer Bilal Soofi, “The option of judicial settlement over Siachen II.” (Friday Times 1990)
10. https://www.dur.ac.uk/ibru/publication/download/?id=177.
11. Memorandum on States’ Treaties and Paramountcy presented by the Cabinet Mission to His Highness the Chancellor of the Chamber of Princes on 12 May 1946; Section 7(1)(b) of the Indian Independence Act,1947.
12. Article 26 of the Vienna Convention on the Law of Treaties, 1969 – Pacta sunt servanda:
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
13. Iwanek K, 'Why Did Pakistan Lay Claim to the Indian Territory Of Junagadh?' (The Diplomat, 2020) 14. 'Kashmir | History, People, & Conflict' (Encyclopedia Britannica, 2020). https://www.britannica.com/place/Kashmir-region-Indian-subcontinent.
15. Memorandum on States’ Treaties and Paramountcy presented by the Cabinet Mission to His Highness the Chancellor of the Chamber of Princes on 12 May 1946; Section 7(1)(b) of the Indian Independence Act,1947.
16. Alistair Lamb, 'Excerpts From 'The Myth of Indian Claim To Jammu & Kashmir – A Reappraisal' (mofa.gov.pk 2019). http://www.mofa.gov.pk/documents/related/Myth.pdf.
17. 'Text of Lord Mountbatten’s Letter Dated 27 October, 1947 To Signify His Acceptance of the Instrument of Accession Signed by the Kashmir Maharaja' (mtholyoke.edu, 2019). https://www.mtholyoke.edu/acad/intrel/kasmount.htm.
18. UNSC Resolution 47 (1948) S/726. https://undocs.org/S/RES/47(1948).
19. Karachi Agreement, (Cease-Fire Line Agreement) 1949.
20. Article 370 of the Constitution of India, 1959.
21. Ahmer Bilal Soofi and others, ‘Legal Memorandum: The Status of Jammu and Kashmir under International Law.’ (2019).


 


 

Read 431 times


TOP