Iqbal Khan
Indian occupied Kashmir presents a typical case-study of an open ended international conflict gone awry, thanks to impotence of the United Nations. During the post World War II decolonization era, the phrase “right of self- determination” was as revered as the term “Human Rights” is these days. That is why one finds that all proposals for resolution of Kashmir conflict start from and end at granting Kashmiri people their right of self-determination through a UN supervised plebiscite. Nonetheless, situation in today’s Kashmir also perfectly fits into current buzz word- “International Humanitarian Law”.
An under duress submitted Instrument of Accession through a dubious letter by Maharaja of Kashmir and its conditional acceptance by the then Indian Governor Gen-eral, alongside over two d-ozen United Nations Security Council (UNSC) Resol-utions, Tashkent Declaration, Shimla Agreement, Lahore declaration and a number of multilateral and bilateral communiques acknowledge the disputed nature of Kashmir. While Pakistan’s stance on resolution of Kashmir dispute has been consistent, India has been shifting its goal posts quite often. International Human Rights watchers keep pointing towards employment of rape, extrajudicial mass kil-ling and use of indiscriminate/ disproportionate force in Indian Occupied Kashmir (IoK). New found craze of current Indian government is to erode and abrogate Article 370 of Indian constitution that gives special status to IoK.
Coupled with this is concerted Indian effort to deface the legal contour of Kashmir dispute through misrepresentations. Pakistan’s legal position is very strong, it only has to firmly stick to it, and pursue it with perseverance. Pakistan should ratchet up its effort to enhance international outreach and demand of the UN to undertake its obligations.
UNSG should be urged to appoint a person of Global standing for devising mechanism to resolve the dispute within the parameters laid down in UNSC resolutions, which had been accepted by both India and Pakistan; then five permanent members of the UNSC should engage India and Pakistan into meaningful talks for settlement of this lingering Humanitarian dispute.
Ever since passage of UNSC resolutions 38 & 47 of 1948-both duly accepted by India, a concerted Indian campaign continues to distance itself from these and dilute the necessity of a credible plebiscite. Knowing well that whenever matter of accession is referred to the people of Kashmir, India would lose, it has shifted its legal anchorage around “Instrument of Accession”.
While attaching the letter of Accession, Maharaja Hari Singh wrote to India’s Governor General Lord Mountbatten, presumably on October 26, 1947: “I have to inform your Excellency that a grave emergency has arisen in my State and request immediate assistance of your Government … With the conditions obtaining at present in my State and the great emergency of the situation as it exists I have no option but to ask for help from the Indian Dominion. Naturally they cannot send the help asked for by me without my State acceding to the Dominion of India. I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government”.
And while accepting the accession, Governor General replied a day later: “…Consistently with their policy that, in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that, as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people”. This “reference to the people” is the foundation stone of all UN undertakings on Kashmir.
Being sure that if the people were allowed to exercise their choice, the decision would not be in India’s favour, since the days of UNSCR 38 &47, India has made several policy level summersaults, on one pretext or the other.
Genesis of revisionist Indian narrative on Kashmir can be traced back to a resolution unanimously passed by both houses of India’s parliament in 1994. But even then, knowing the limitations, successive Indian governments have hardy made any attempts to act upon that resolution. During Modi era, India has turned noisier, but these tirades are mainly aimed at reinforcing pressure points publicly and to indicate that India also has claims on Pakistani-controlled Kashmiri territory that it is not willing to part away without corresponding quid pro quos.
Currently, violence along the Line of Control (LoC) and unrest within the Kashmir Valley are pitched-up. India has committed over 1,300 cease-fire violations during 2017-seven years’ high. Public disgruntlement amongst Kashmiri Muslims in IoK is quite high and inflammable. Indian military posts on Indian side of the LoC are being overrun by locals. Erratic Indian actions may have hyped Modi’s domestic support but have achieved nothing with regard to stemming the perpetual ready to erupt volcano.
Kashmir continues to be taken as a disputed territory by the UN, where General Assembly reaffirms it as such every year, and United Nations Military Observer Group in India and Pakistan (UNMOGIP) continues to be stationed on both sides. Organization of Islamic Countries (OIC) considers Kashmir as a disputed territory. Numerous Human Rights monitoring entities often keep pointing towards HR violations, India has persistently blocked the access of these entities to its occupied portion of Kashmir, while Pakistan welcomes such organizations to visit Azad Kashmir for a first hand feel of HR situation.
India is, by and large, fulfilled with the territorial status quo in Jammu and Kashmir, it has repeatedly indicated the intent “to discuss the disputed state with Pakistan as part of a comprehensive “composite dialogue”. India wants to make any settlement of Jammu and Kashmir as part of an overall comprehensive settlement.
The Congress leader Chidambaram has recently said that wisdom lay in actively working towards a political solution to the issues of the disputed region, where movement to attain the right of self-determination has claimed thousands of lives. He added that the Modi government was not keen on finding a solution to Kashmir issue while praising the efforts taken by Vajpayee and Manmohan Singh governments in the past. Chidambaram also prescribed a solution saying that the Centre should “promulgate Governor’s Rule in the state…announce that the Central government will hold talks with all stakeholders…appoint interlocutors to pave the way for talks…Reduce the presence of the Army and paramilitary in the Kashmir Valley and hand over the task of maintaining law and order to the state police…”
Article 370 of the Indian Constitution is a ‘temporary provision’ which grants special autonomous status to Jammu & Kashmir. Under Part XXI of the Constitution of India. All the provisions of the Constitution which are ordinarily applicable to other states are specifically inapplicable to IoK. However, it is being continuously eroded. For example, till 1965, J&K had a Sadr-e-Riyasat for governor and prime minister in place of chief minister. According to this article, except for defence, foreign affairs, finance and communications, Indian parliament needs the state government’s concurrence for applying all other laws. Though denuded of most of the contents related to autonomy, it still survives as a symbol of the distinct-albeit disputed- identity of Kashmir. Track record of settlement of any meaningful issue by India and Pakistan bilaterally is poor. Therefore, Kashmiri peoples’ case rests with the international community and structures of prevalent political World Order, theoretically led by the UN, but practically commandeered by the US. To President Trump:
People of Kashmir are neither asking for anything extraordinary, nor something against the international norms; they want to express their political will through a universally accepted democratic instrument; Kashmiris expect a couple of tweets on this please!.
