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THE UN Charter does not allow reclaiming territory on the basis of historic claims. In 1945, it effectively declared that all international boundaries had attained finality and could not be altered on any pretext. Territories can no longer be acquired on the basis of occupation or aggression. Now states need to live within the territory they possessed when they signed the UN Charter.
This leads us to the monumental principle of the international legal order — non-intervention and non-interference. This same principle was codified in a few paras of Article 2 of the UN Charter and later elaborated in two UN General Assembly resolutions. Barring Kashmir and Palestine, no other state in the last 70 years since the UN Charter has been able to enlarge its territory by claiming title through occupation.
However, in the last few years, some states have begun to contemplate reclaiming territory on the basis of historical claims. This is worrisome. India, for example, is raising such claims through its political figures and some who hold government office. The slogan of ‘Akhand Bharat’ is an attempt to reclaim the territory of neighbouring states on the pretext that once they all partly constituted the Bharat that existed as a single territorial entity hundreds of years ago.
Such expansionist theories of religious parties and extreme elements can be ignored but if this narrative is beginning to be owned by state officials in India then it becomes a matter of concern not only for the neighbours but also the international community.
Do historic titles threaten the global legal order?
Reclaiming territory based on historic title would require the use of force — in utter disregard of the UN Charter. When the Bhartiya Jansangh, as the BJP was known earlier, passed a resolution in 1965 that “Akhand Bharat [would] be a reality, unifying India and Pakistan once we are able to remove this obstacle (separatist politics)”, it could be ignored because in 1965 this was a minority political view. But no longer. Now the BJP is in power and whatever statement its ministers or other holders of public office issue is to be taken as the government’s policy line. In other words, the Akhand Bharat narrative is elevating itself from a minority view to an official position. Indresh Kumar, a senior leader of the Rashtriya Swayamsevak Sangh, has claimed that Pakistan will become a part of India after 2025.
Compare this to Pakistan. There may be rhetorical speeches, but none of the major political parties have in their manifestos anything close to pledges to reclaim the territory of, say, the lost Mughal Empire. The narrative of destroying India or claiming any part of its territory is not owned by major political parties here. The slogan of making Kashmir part of Pakistan or helping Kashmiris exercise their right of self-determination is limited to the disputed territory of India-held Kashmir, but no government in Pakistan or mainstream political parties have adopted a position that puts forward claims to any union territory of India.
Israel is another case in point. It lays claims even to its neighbouring states on the grounds of historic and religious title. Neither of these grounds is recognised as an exception to the prohibition of expanding boundaries under the UN Charter. The manifesto of the Likud party lays such a claim to Jordanian territory stating that “The Jordan Valley and the territories that dominate it shall be under Israeli sovereignty. The Jordan river will be the permanent eastern border of the State of Israel.” Such a claim is contrary to the UN Charter to which Israel is a party. The Likud party, in its manifesto, has stated that the Jewish communities of Judea, Samaria and Gaza are the realisation of Zionist values.
The consequence of reclaiming title by India and Israel is that it is boosting the narrative of several non-state actors like the Taliban, IS etc. Their speeches and video and social media messages talk of establishing a khilafat in disregard of settled boundaries and of creating a transnational entity. No Muslim state has taken political ownership of this narrative nor encouraged it. Malaysia, Egypt, Saudi Arabia, Indonesia and Pakistan have actually treated this narrative as contrary to their respective constitutions and the international rules of law.
But that might just be changing. Turkey has started to react to Israel’s transnational and historic claims by voicing ideas of a revival of the Ottoman Empire or Sultanate of Usmania. Its president has criticised the Treaty of Lausanne which created the borders of modern-day Turkey and said that it left the country too small. News reports state that even new maps are being drawn showing the reclaiming of the territory of the Ottoman Empire.
Claiming territory beyond existing borders on the basis of historic title or religious basis is a slippery slope. It should be avoided.
The writer is a former caretaker federal law minister.
Published in Dawn, September 6th, 2020
