For several years now Pakistan and its dictatorial regimes have questioned the access of the state of Jammu and Kashmir to India by stating and restating it again and again that the state of Jammu and Kashmir is a disputed territory. By applying the same logic the identity of Pakistan and its existence as a sovereign political state can be asked by India and the Indian government by taking the logic from International Law itself.
As per the Vienna Convention of the law of Treaties of 1969 which is a international legal document a material breach of a bilateral or a multilateral treaty by one party entitlees the other party to terminate a treaty. Nder this case if applied on the Indian context the Partition of India Plan or the Lord Mountbatten Plan of 1947 as it is generally referred to too was an international treaty signed between the then British Government, the Muslim League and the Indian National Congress under which it was agreed that the British would leave India on the zero Hour at the midnight of 14th of August 1947 and the British India would be divided in two new sovereign states India and Pakistan.
On June 3rd 1947, Lord Mountbatten announced his plan. The salient features were: –
1) Mountbatten's formula was to divide India but retain maximum unity. The country would be partitioned but so would Punjab and Bengal, so that the limited Pakistan that emerging would meet both the Congress and League's position to some extent.
2) The Mountbatten Plan sent to effect an early transfer of power on the basis of Dominion status to two successful states, India and Pakistan.
3) A referendum was to be held in NWEP to ascertain wherever the people in the area wanted to join India or not. The princely states would have the option of joining either of the two dominions or to remain independent. The Provinces of Assam, Punjab and Bengal were also to be divided. A boundary commission was to be set up to determine the boundaries of these states.
The clause three of the agreement is significant where it is stated that the princely states would have the right to join India or Pakistan or remain independent if they wanted. This plan was accepted by all the three parties the British, the Muslim League and the Congress as all three of them were signatories to it. By signing it all the parties agreed to all the clauses and salient features of the plan as such it is implied that none of the parties would violate any of the clauses of the document. But the first to violate this case was Pakistan itself when it attacked the sovereign state of Jammu and Kashmir and wanted to annex it by force in 1948.
When Pakistan had attacked that state the sovereign ruler of that state had requested the Indian government for help and signed the deeds of merger with India which was also rated by the provincial assembly of the state of Jammu and Kashmir .As per the Mountbatten Plan of which The Muslim League was a signatory the princely states of India had the right to join India if it wanted and the state of Kashmir had exercised that option. This treaty between India and the state of Jammu and Kashmir came into existence because of the earlier treaty of the Indian Independence Act as such if the Mountbatten Plan is a international treaty so is the access of the state of Jammu and Kashmir with the state of India . If Pakistan can so shamelessly violate and refuse to accept the access of Kashmir with India. Then India can also question the existence and creation of Pakistan based on the case of the Vienna Convention that a material breach of a treaty by one party entitles the other party to terminate a treaty. Pakistan has violated this case since the beginning by not accepting that part of the Mountbatten Plan in relation to the princely states as it is clear from the case of Kashmir. As such India has every right to question the existence of Pakistan the day India does this then the state of Pakistan becomes disputed if the Pakistani logic on Kashmir is applied on them by India.
Secondly as per the Vienna Convention of the law of treaties of 1969 impossibility of performance of a treaty is also a valid ground for its termination. Article 61 of the Vienna convention says this. As per the impossibility performance test a treaty becomes invalid if one of the existing party parties or is incapable of implementing the treaty in practical circumstances. Pakistan by not implementing or by violating that cause of the Mountbatten Plan in relation to the princely states by trying to occupy the state of Jammu and Kashmir by force and annexing a part of its territory unlawfully has demonstrated to the world that was incapable of implementing the Mountbatten Plan in its letter and spirit as such the impossibility of performance of a treaty would apply in this case. In such a situation India has the right to nullify that part of the Mountbatten Plan which mentions about the creation of Pakistan.
It is true that Vienna Convention does allow treaties to invalidate the existence of sovereign states or changes of political boundaries between states but in this case this rule would not apply because Pakistan had violated the very clauses of that international agreement which had created the state of Pakistan . Since Pakistan was the initial violator as such it can not question the Indian role in relation to East Pakistan.
The government of Pakistan can appeal in relation to the princely state of Junagadh or Hyderabad. But then the Mountbatten Plan did talk about referendum, popular will or the Access of the princely state with the state of India or Pakistan in its clauses. India had exercised its option in relation to these two states under the Mountbatten Plan as the majority will of the people of these two states wanted to join with India. As such Pakistan can not question the Indian role in these two states.
Again the questionable identity of Pakistan can be asked by the concept of Maxim Rebus Sic Stantibus in the doctrine of International law. Which means if the fundamental or material circumstances under which a treaty is concluded, then this change becomes a basis for the avoidance or change or termination of a treaty.
Edward Collins writes in his book: International Law in a changing world, 1969: "It is widely recognized that if fundamental changes in the circumstances upon which a treaty rests to take place, these changes may be invoked as a ground for the termination of the treaty . The principle known generally as the doctrine of Clausula Rebus Sic Stantibus is based on the assumption that there is an implied clause in every treaty that provides that the agreement is binding only so long as the material circumstances on which it rests remains unchanged. "
Taking a leaf out of the doctrine of Maxim Rebus one can question the identity of Pakistan. Looking into the past misdeeds of Pakistan one can very well argue that there was fundamental changes in the circumstances upon which the Mountbatten plan was laid had changed the moment Pakistan Had attacked the then independent state of Jammu and Kashmir without any provocation from the side of Jammu and Kashmir. As such the material circumstances on which the Mountbatten Plan was based changed the moment Pakistan violated the case of the plan in relation to the princely states when it was tried to occupy Kashmir by force. As such taking assistance from this doctrine India can well dispute the existence Of Pakistan.
When the identity of Pakistan itself can be asked it would be advised for Pakistan to stop its claim of the State of Jammu and Kashmir once for all and hand over that part of the territory of the state of Jammu and Kashmir which includes the so called Azad Kashmir, Northern Areas and the areas seceded by Pakistan to China to India once for all which legally belong to India after the arrival of the state to India in 1948. It is advisory for the Pakistan President to initiate this process of handing over the illegal occupied Territories back to India instead of giving new plans in relation to the so called disputed state of Jammu and Kashmir. This is the minimum which Pakistan should do to wash out a part of its past misdeeds and if it really wants the peace process to be successful. The ball lies in the Pakistani Court now.