To enjoy the capacity to conclude international agreements and treaties, a government [or a ruler] needs to possess a genuine and effective sovereign status which is possible through actual control over the state territory. In other words, the requirements which are necessary for the recognition of a government. The preponderant international practice on recognition of governments is based on the principle of effectiveness or according to Oppenheim, a renowned international legal scholar, and jurist, a government can represent a state when it is actually in control of the country, enjoys the habitual obedience of the bulk of the population, and stakes a claim of reasonable expectancy of permanence. In other words, three conditions need to be fulfilled to satisfy the principle of effectiveness, namely, actual control over the territory, effective exercise of authority over the majority of the population, and reasonable expectations of the government’s staying power.
When we apply these conditions to the circumstances on the ground at the time when Maharaja Hari Singh signed the instrument of accession (a point that remains contested), we discover that hardly any of them is fulfilled. Thus, as far as the first requirement of actual control of the country is concerned, we see the following picture. The entire province of Poonch, except for the city of Poonch, was controlled by the rebels as was the case with Mirpur and Kotli. The local militia in the Gilgit Agency had successfully seized control from the Maharaja’s representatives, actively seeking accession to Pakistan. The Maharaja’s forces had by 26 October failed to recover the Agency. On 24 October, a new entity called Azad Kashmir was established. The Maharaja was able to hold on only to Jammu and Ladakh without military assistance from outside the state. Despite the presence of Patiala troops since 17 October in the capital, the Maharaja was fleeing from Srinagar where he was staying before he signed the Instrument of Accession. There is a clear recognition of this fact in the letter of accession that the Maharaja wrote to the Indian Governor-General in these words:
“With the conditions obtaining at present in my State and to a great emergency of the situation as it exists, I have no option but to ask for help from the Indian Dominion….if my state has to be saved immediate assistance must be available at Srinagar.”
The fact that the Maharaja had no hold over the state and was in the process of flight is acknowledged by other sources as well. Thus V.P.Menon, the secretary of the Indian Ministry of States, who was present in Srinagar on 24 October where he had gone on a fact-finding mission, has observed as follows:
“The Maharaja was completely unnerved by the turn of events…the first thing to be done was to get the Maharaja and his family out of Srinagar…I advised him to leave immediately for Jammu and to take with him his family and his valuable possessions…The Maharaja had taken away all the available cars and the only transport available was an old jeep”
In light of the foregoing events that Maharaja was in flight from his territory, the first condition relating to actual control of the territory is not fulfilled.
As far as the second condition which relates to the effective exercise of authority over the majority of the population is concerned, it depends on two things, namely rulers’ grip on power and secondly the effectiveness of the machinery entrusted with the implementation of the governmental authority. Regarding the ruler’s grip on power, we have already seen above that the Maharaja clearly lacked it as he was fleeing with his entire family and valuables from Srinagar where the fateful events were taking place. Regarding the effectiveness of the implementation machinery, it had completely broken down as Menon admits in his testimony when he states that
‘‘There were practically no state forces left”
Consequently, one may conclude that the Maharaja lacked effective power to enforce his authority over the majority of these people.
As far as the third condition about the reasonable expectation of the government’s or ruler’s staying power is concerned, it is doubtful if the Maharaja had any chance of survival without the Indian military assistance. The latter makes no bones about it in his letter of Accession when he states in unambiguous terms that:
“If my state has to be saved immediately assistance must be available at Srinagar”. In other words, the third condition is equally not fulfilled.
In the light of the foregoing analysis, one may conclude that the Maharaja lacked the capacity to accede as he had for all practical purposes been overthrown. Consequently, the Instrument of Accession that he made was null and Void.
If accession by the Maharaja is the principle argument on which India stakes her claim to Kashmir, my analysis of the circumstances surrounding the signing of the Instrument of Accession suggests that the accession of Kashmir to India was neither complete nor legal, as Delhi has vociferously contended for over seventy-six years. The circumstances surrounding the signing of the Instrument of Accession by the Maharaja of Kashmir in 1947 raise serious questions about the legitimacy and completeness of the Instrument of Accession. The principles of effective control, authority over the majority of the population, and a reasonable expectation of staying power, which are essential for recognizing a government’s sovereignty, were not met at the time. The Maharaja was in the process of fleeing his territory, had lost control over significant portions of the state, and had no effective machinery to implement his authority. These factors cast doubt on the legal and complete nature of the accession. Therefore, the complex history and unresolved issues surrounding Kashmir underscore the need for continued diplomatic efforts to address this longstanding dispute.