Kashmir conflict is a maleficent inheritance from the British raj. India and Pakistan went to fisticuffs to settle this dispute. Following their first war on Kashmir, both India and Pakistan accepted ceasefire from January 1, 1949 under supervision of UN observers. No UN resolution incorporates India’s view that maharajha had acceded to India. It is said that the accession instrument stands `stolen’. There is a United Nations’ resolution that forbids India- occupied Kashmir `assembly’ from acceding to India (authenticating royal accession). The main resolutions on Kashmir are: (a) United Nations’ Commission for India Pakistan Resolution dated August 13, 1948. Para 75 (Serial110) in Part III of this resolution states ` The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the truce agreement, both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured. (b) UNCIP Resolution dated January 5, 1949 Para 51 (Serial 1196) states ‘The question of accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite’.
Since both parties agreed to a plebiscite, the question of sanctions never arose. Besides, India approached the United Nations under Chapter VI (Pacific Settlement of Disputes), not Chapter VII (Acts of Aggression).On Nov 2, 1947, Nehru declared in a radio broadcast that the government of India was “prepared, when peace and order have been established in Kashmir, to have a referendum held under international auspices like the United Nations.” I am quoting from Chaudhri Mohammad Ali’s The Emergence of Pakistan. Till 1953, India was, at least verbally, committed to the plebiscite. But, in subsequent period, she had been making frantic efforts to warp the UNO and woo the USA in her favour. For instance, during temporary absence of Pakistan’s rep, India tried to get the `India-Pakistan Question’ deleted from the UN agenda. India based her plea on Security Council’s informal decision, dated July 30, 1996, about deleting dormant questions. The Question was deleted during the Pak rep’s absence, but was restored to agenda upon his arrival.
Again, at India’s behest, US Congressman Stephen Solarz elicited the statement from Bush-administration high-level diplomat, John H. Kelly, that plebiscite was no longer possible in Kashmir.
Here is an extract of Solarz’s grilling questions and the gullible answers thereto.
Mr. Solarz: What is the position of the United States with respect to whether there should be a plebiscite?
Mr. Kelly: First of all we believe that Kashmir is disputed territory…
Mr. Solarz: Well, how did we vote upon that resolution at the U.N. back in 1949?
Mr. Kelly: In favor, Mr. Chairman.
Mr. Solarz: Right. So at that time we favored a plebiscite. Do we still favor a plebiscite, or not? Or is it our position now that whether or not there should be a plebiscite is a matter, which should be determined bilaterally between India and Pakistan?
Mr. Kelly: Basically, that’s right, Mr. Chairman.
Mr. Solarz: So we are no longer urging a plebiscite be held?
Mr. Kelly: That’s right.
To India’s chagrin, John R. Mallot, the US State Department’s point man for South Asia in 1993, corrected Kelly’s faux pas. He told the House Foreign Affairs Sub-Committee on Asia and the Pacific on April 28, 1993 that John Kelly ‘misspoke’ in 1990 when he said that the United States no longer believed a plebiscite was necessary in South Asia. Mallot clarified that Kelly made his comment after ‘continued grilling’ by the panel’s (pro-India) chairman, Stephen J. Solarz of New York.
Avid readers may refer to Solarz-Kelly conversation and corrective policy action taken by the US State Department in Robert G. Wirsing’s book India, Pakistan, and the Kashmir Dispute, published by Macmillan Press Limited, London in 1994. They may also see Mushtaqur Rehman’s Divided Kashmir: Old Problems, New Opportunities for India, Pakistan and the Kashmiri People (London, Lynne Reinner Publishers, London, 1996, pp. 162-163).
Kashmir is a simmering nuclear tinderbox. There is no UNO resolution incorporating India’s volte face that India-occupied Kashmir has acceded to India through the so-called state assembly’s resolution. Till recently, the USA viewed Kashmir as a disputed state. It clarified there is not an iota of change in US policy on Kashmir what’s its current position?
Despite lapse of over 70 years, India has not fulfilled its promise of a plebiscite in Kashmir.
India’s attitude negates the cardinal principles in inter-state relations, that is, pacta sunt servanda `treaties are to be observed’ and are binding upon signatories. If disinterested, India should wriggle out of bilateral and multilateral agreements by pleading that the UNO resolutions stand antiquated under another principle clasula rebus sic stantibus _In the case of a `fundamental change of circumstances’, that existed when a treaty was concluded, a party to that treaty may invoke this fact as a ground for termination or suspending operation of a treaty.
The principle stands codified in Article 62 of the Vienna Convention on the Law of Treaties. Para 3 of the Convention, codifying the principle of rebus sic stantibus, states `If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty, it may also invoke the change as a ground for suspending the operation of the treaty’.
India should tell the International Court of Justice that the Simla Agreement of 1972 has superseded the UNO Resolution of 1948 (envisioning exercise of the right of self-determination) on the basis of the principle `lex posterior derogat priori, later treaty abrogates the earlier one’. The principle is enshrined in Article 59 of the Vienna Convention on the Law of Treaties, which provides as follows: ‘TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY IMPLIED BY CONCLUSION OF A LATER TREATY. 1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and: It appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty: or a) The provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time…’.
But, to India’s chagrin, even Simla Accord accepts the UN resolutions. The UN observers are still on duty on the line of actual control. They submit annual report to the UN’s secretary general. This report identifies Kashmir as an international problem. India could not get the dormant `India-Pakistan Question’ deleted from the UN agenda (as informally decided by the Security Council on July 30, 1996).
Paragraph 1(i) of the Simla Agreement provides, `the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries’. Right of self-determination is a recognised right under the UNO charter and conventions. It is now not only a political but also a legal right.
The United Nations’ Military Observers’ Group on India Pakistan came into existence between 1949 and 1951 to maintain sanctity of the ceasefire line drawn between India and Pakistan after the war of 1947-48. The first group of United Nations military observers arrived on 24 January of 1949 to supervise the ceasefire. The UN spends US$ 40 million each year to keep them up.
India is wary of their presence. It asked them to vacate their residence at 1/AB, Purana Qila Road, Connaught Place, Delhi – 11000; from where it has been functioning since 1949 (India asks UN team on Kashmir to leave Delhi, Reuters July 9, 2014). It even harassed `Three members of the United Nations Military Observers Mission for India and Pakistan (UNMOGIP) had a close call along the restive Line of Control (LoC) in Azad Jammu and Kashmir after Indian troops shot at and injured two locals who were briefing them on the situation prevailing in the wake of ceasefire violations’ (Indian troops fire across LoC in presence of UN observers, 2 injured, March 14, 2018).
India-Pakistan dialogues never progressed towards solution of the Kashmir tangle. Both countries stick to their iron-clad legal closets. India’s former foreign secretary, J.N.Dixit was of view that both countries should think beyond legal rigmarole. He says, `It is no use splitting legal hair. Everybody who has a sense of history knows that legality only has relevance up to the threshold of transcending political realities. And especially in inter-state relations…so to quibble about points about points of law and hope that by proving a legal point you can reverse the process of history is living in a somewhat contrived utopia. It won’t work’ (V Schofield, Kashmir in the Crossfire).
There are a plethora of alternative solutions 🙁 a)Freezing the Territorial Status Quo. This solution offers the Kashmiris south of the LoC both Kashmiri ID cards and Indian passports. Likewise, it offers those on the north of the LoC, Kashmiri ID cards and Pakistani passports (Marc Weller. and Staffan Wolff (eds.), Autonomy, Self-Governance and Conflict Resolution, New York, Routledge Taylor and Francis Group, 2005, pp. 41-42). (b) Andorra Model. Andorra was a unique co-principality- (without any arbitrator), ruled by the French chief of state and the Spanish bishop of Urgel for 715 years. Through a constitution, enacted in 1993, the government was transformed into a parliamentary democracy with both French and Spanish heads of states jointly wielding executive powers (as well as defence) as co-principis. When this solution was first proposed by Hurriyat Conference (in 1974), President Musharraf supported it. However, all sections of the Indian media termed this solution ‘Pandora’s box’. (c) Sweden-Finland Aland-Island Model.
Swedish nationals in Finland controlled the Island. They wanted to unite it with Sweden. But, Finland did not allow them to do so. With League of Nations appointed as an arbitrator in 1921, the island was given the status of an autonomous territory. Finland retains nominal sovereignty over the island with obligation to ensure linguistic rights (Swedish language) as well as culture and heritage of Aland residents. The island enjoys a neutral and demilitarised status with its own flag, postage stamps and police force. On December 31, 1994, Aland joined the European Union voluntarily. Aland is a self-governing entity, created without use of force, catering for conflicting interests of rival communities. (d) Italy-Austria South Tyrol Model. South Tyrol was part of Austria. It was inhabited by three linguistic groups (70% Germans, 26% Italians, and 4% Ladin). It was annexed by Italy in 1919. German majority rebelled against Italianisation.
An agreement between Austria and Italy provided autonomy framework, vouchsafed by Paris Peace Agreement, 1946 (also known as Gruber Degasperi Agreement). Under the South Tyrol Package of 1969, Austria exercised mandatory protective function vis-à-vis Italy for the Austrian and Ladin minorities in South Tyrol. The package was meant to pave way for peaceful co-existence of German- and Ladin-speaking communities of South Tyrol, particularly in the multi-ethnic province of Bolzano. The package collapsed and gave way to a settlement in 1992 with the United Nations as the arbitrator. The revised package still recognizes Italian sovereignty but allows greater autonomy of legislation and administration, recognition of cultural diversity, minority vote on issues of fundamental importance, and proportional ethnic representation. (e) National Conference Autonomy Formula (2001). The formula envisages return to 1953 position, abrogation of all central laws imposed on the state, and an informal co-federal relationship between the parts of Kashmir. (f) Chenab Formula. According to this formula the River Chenab will form the separation line between free (Azad) and occupied parts of Kashmir. Some writers have discussed Indus-basin-based formula, akin to it. (g) Kashmir-Study-Group Formula: It envisages division of the state into two self-governing entities, enjoying free access to one another. The entities would have their own democratic constitutions, citizenship, flag, and legislature (sans defence matters jurisdiction). Defence would be the joint responsibility of India and Pakistan. (h) Northern Island model. In a video talk to an audience in New Delhi bill Clinton favoured it (India Today, March 17,2003, p. 24).(i) Misc. Sami parliamentary model, Italy-Yugoslavia Trieste model, Basque leader Jose Ibarretxe ideas, Caledonia island (discovered in 1774) sovereignty sharing Noumea agreement (1999).
The question is will any of the above solutions fit in with warped crucible of India’s subconscious framework? Indian army chief says India should talk to Pakistani generals on Kashmir. For, any agreement with generals will be sincerely implemented. India regards all civilian rulers as army puppets and cobras in India’s backyard.
Pakistan’s prime minister himself says he and army are on one page. Given Imran is an army or Establishment’s poster boy, as India claims, why she is chary of talking to him.
Besides being a geographical dispute, Kashmir dispute has a human rights dimension.
Pending a final settlement, softening the borders a la Mehta appears to be need of the hour to mitigate suffering of the Kashmiri. For some time, the divided Kashmiri families used to exchange gifts across a bit softened border.
If no solution is hammered out, then, still, there are two solutions- a nuclear holocaust or, perhaps, divine intervention.