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On
5 August every year, Pakistan celebrates the remembrance of the annulment of
Article 370 by India in 2019 granting Jammu and Kashmir a degree of autonomy
within the Indian union. The chapter closed domestically on 11th December 2023
with the Supreme Court of India affirming the abrogation in a verdict which was
476 pages long. But this assertion that the status of Kashmir had been resolved
internally is getting difficult to uphold as the six years have passed. This is
not due to any court rulings but because of the current condition of the two
rivers which were not part of the constitutional debate in India and governed
by a different set of laws Jhelum and Chenab.
The
question before the Supreme Court was whether the Parliament of India could
repeal Article 370 of the Constitution. It has, and will not decide the status
of Kashmir as an internationally disputed territory. The interim Pakistan
foreign minister Jalil Abbas Jilani rebutted it flatly saying "Kashmir has
been on the UN Security Council agenda for more than 70 years" The ruling
led to the establishment of a working committee by the Institute of Policy
Studies in Islamabad which had maintained the subject of the territory was
never discussed during the hearing before the court and no statement was ever
issued and approved by the court. According to the principles of international
law including Article 27 of the Vienna Convention on the Law of Treaties and
the jurisprudence of the ICJ when a court of a given state asks itself a
domestic constitutional question, it may not turn a disputed territory into an
internal matter. The actual debate starts when it comes to the differences
between what is litigating in court and what is being said as resolved in
political talk.
This
gap has grown starker following the killing of 26 civilians in the
Indian-administered Kashmir town of Pahalgam on 22 April 2025. A day later India had said it will keep the 1960 Indus
Waters Treaty, which regulates a watercourse providing livelihood for nearly
90% of Pakistan's agriculture, in "abeyance" till the latter scrapped
its cross-border terrorism-supporting policy. The term does not exist in the
treaty. Prime Minister Narendra Modi reaffirmed his old dictum of "blood
and water cannot mix. The next few weeks saw some surprising releases of water
from the dams on the Jhelum and Chenab rivers, causing floods in the Kashmir
region of Pakistan. With respect to established rules of state responsibility
there is no basis for terminating or suspending obligations for dispute
settlement even in the event of retaliatory measures, which are still in force.
Article IX of the treaty contains a mechanism for terminating obligations for
dispute settlement. It was called by Pakistan.
The Permanent Court of Arbitration in June 2025 ruled that there is no legal basis for unilateral abeyance under the treaty and that the Court has jurisdiction. That was something India rejected as "illegal. In its subsequent ruling on the restrictions on “pondage” of rivers in May 2026, the same court sided with Pakistan on the interpretation of the treaty. Here India is not pursuing a domestic law case. It is tied up in court proceedings in an international forum of arbitration over which it has no control and over which it cannot unilaterally decide to send its case elsewhere.
This
isn't just a coincidence. Both India and Pakistan have reservations under
Article 36 of the Statute of the ICJ which exclude any disputes related to the
national security. These reservations were made in 2019 for India, and 2017 for
Pakistan. The ICJ has effectively been closed in this dispute, both by the
choice of the parties. What is left is treaty arbitration and that's where
Kashmir's impasse comes into the picture.
This
can be observed in the different regions within the country. According to
official figures provided to the Jammu and Kashmir Legislative Assembly in
April 2025, 3,512,184 domicile certificates were issued in the last two years
and 83,742 certificates were issued to those who didn't reside in the then
state. This demographic shift would be considered regular in any normal Indian
state, but it's seen as sensitive in Kashmir where Article 370 was long linked
to constitutional safeguards that impacted residents and settlement.
None of the above alone
brings back the UN resolutions of 1948, nor does any arbitral body have
jurisdiction to decide on sovereignty. But the cancellation of article 370 was
an Indian domestic legal claim which was presented as an international claim. The
fact that the water dispute was never out of the pale of international law but
that it just shifted rooms from Security Council deliberations and domestic
litigation to a treaty tribunal to which India cannot go back alone, was
revealed by the recent water dispute. Nothing can prove that Kashmir is yet to
be resolved than a river and an illegal ruling by an arbitrator, which New
Delhi itself has called so, and millions of people who yet await a resolution
which never came.
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