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.
Kashmir: A Victim of the Influence of Major Powers
India-Pakistan relations are constantly tense and India-Pakistan history is full of struggles and rivalries. The problems between the two countries have emerged on the international scene recently when the Indian state decided to abolish autonomy in Jammu and Kashmir and apply full control of the Indian state over the region. The area is known to be the center of a dispute between India and Pakistan over land claims and border demarcation.
The Indo-Pakistan conflict over Kashmir is classified as one of the most dangerous in the world. India and Pakistan are nuclear states. The Kashmir conflict began in 1947 and did not end today, after Kashmir was a former independent region in the Himalayas. Kashmir lies in a strategic area on the Himalayas, bordered by India, Pakistan, China and Afghanistan; it is a region of cultural diversity and contains the most important Eastern religions such as Islam, Buddhism and Hinduism. The region of Kashmir is one of the most beautiful regions of the world and fertile agricultural land with a lot of natural resources, but the political instability and security has ruined the economic situation and the lack of tourists and investors.
Historically, Kashmir has been a Hindu religion, but the connection between Kashmiri people and Afghan families has led to the spread of Islam. Kashmir was ruled by the Mongols from the 16th to the 18th centuries, after which Kashmir returned to be an independent state. However, strong British influence in that period robbed the sovereignty of that country by selling land and people, who are mostly Muslims, to a Hindu warlord, Gulab Singh, for 7.5 million rupees.
This “contract of sale” was quickly legalized in the Amritsar Treaty. Since then Singh has declared himself “Maharaja of Jammu and Kashmir”, and imposed on the local population by force Hindu culture and its religious principles. He burned mosques and overthrew anyone who begged himself to oppose his rule and stand up to Hindu principles. After Maharaja “Gulab Singh” took over the rule of Jammu and Kashmir Maharaja “Hari Singh”, who completed the same path of his predecessor in a land where the number of Muslims at the time 94%.
The severe repression of the people of Jammu and Kashmir in cooperation with the British prompted them to raise their voice in the face of the Maharaja and his allies in 1931. On 25 October 1947, after violent confrontations between the Maharaja and the population, the Kashmiri people won and the Maharaja was expelled. Maharaja sought support from India after Britain stopped supporting him.
The British colonial policy divided the area there on a religious basis. Most of the Muslim lands have been annexed to Pakistan, and the Hindu-majority lands have been annexed to India. In 1947, Indian military forces returned to Kashmir by force against weak Kashmiri resistance and little support from Pakistanis.
At that time, Pakistan began to support the rebels and the separatists from India, which led India to complain to the Security Council accusing Pakistan of supporting the rebels in Kashmir. Pakistan has responded that India is trying to promise Kashmir sovereignty, but it is working to annex Kashmir and bring Maharaja Hari Singh back to power. In 1948, the Security Council sought a mutually satisfactory solution, dividing Kashmir territory, one part called Azad Kashmir or Free Kashmir is supervised by Pakistan, and another part is Jammu and Kashmir and is supervised by India
The never-ending wars between India and Pakistan over the Kashmir issue prompted India in 1974 to conduct six nuclear experiments. This means that India has become a nuclear state and is capable of destroying every enemy, namely Pakistan. This has pushed Pakistan to become a nuclear power by acquiring nuclear weapons. In 1988, India and Pakistan signed a non-aggression pact. Military science suggests that the Asian region is the most dangerous on earth and capable of destroying mankind. India, Pakistan, China, Russia and Iran are nuclear states. Religious conflicts and territorial disputes are accelerating the nuclear war. According to the Pentagon, the next nuclear war between India and Pakistan will claim at least 12 million deaths and more than 7 million wounded from the region.
India, as a big country and a major nuclear power in the Asian region, will not concede to Pakistan in this Kashmir conflict. But India is demanding the entire territory of Kashmir, i.e. Pakistani Kashmir and Chinese Kashmir and this is impossible to achieve, and the conflict is increasing today through the legal measures taken by the Indian state to annex Jammu and Kashmir to the sovereignty of the Indian state and wrest autonomy. Therefore, the solution to this issue remains through diplomacy and negotiations because the weapons, force and many wars in that region did not lead to any positive result.
India’s Constitutional Revocation and Prevalent Security Environment of Kashmir
During Prime Minister Imran Khan’s first ever visit to the US on July 23, 2019, President Trump had offered to mediate the outstanding Kashmir issue between India and Pakistan. This move was greatly appreciated by Pakistan with President Trump publicly stating that Prime Minster Modi had requested him to mediate between the two countries over Kashmir during the sidelines of 2019 G20 Summit held in Osaka in June this year. With President Trump’s offer to mediate at such a crucial time, the issue has once again achieved global significance. Moreover, President Trump’s mediation offers, and India’s recent move constitutionally revoke the special status offered to Kashmir would likely have serious implications within the prevalent security environment throughout the region.
India has often rejected such offers claiming Kashmir as its internal matter. Taking a step forward, on August 5, 2019 the government of India revoked the special status of the Kashmir region that has been previously granted under Articles 370 and 35(A) of the Indian constitution through a presidential order. Referred to as the Jammu and Kashmir Reorganization Bill that was later approved by parliament despite the opposition’s criticism. Under Article 370 of the Indian Constitution the Kashmir region had been awarded special constitutional rights and a ‘so-called’ autonomous status of decision making. Following the abrogation of Article 370, the Kashmir region would be divided into two ‘Union Territories’ i.e. Jammu and Kashmir and Ladakh governed by the Indian central government.
The timing of this constitutional abrogation might have been influenced by President Trump’s offer of mediation between India and Pakistan that was reiterated by the US President despite India’s rejection. This abrogation was also part of the Bhartiya Janata Party’s (BJP) election manifesto as promised by Prime Minister Modi during the 2019 general election. By fulfilling this electoral promise, Mr. Modi is trying to assert that Kashmir is entirely an internal matter for India and that it would not allow any third country to interfere in the Kashmir issue irrespective of its relations with India.
Based on this notion India is inclined to project this political and constitutional change as its internal matter. By revoking the special status of this disputed region, India also intends to change the demography of Kashmir as much of the current population is Muslim. India has been involved in various tactics to change the demographic structure of Indian Occupied Kashmir (IOK) which includes a steady stream of Hindu migrants relocating and settling in masse from other parts of India in this predominantly Muslim region.
This trend is also evident in the region’s population numbers. In 1947 for instance, the Muslim population of IOK was about 79 per cent. As of 2018 this figure has been reduced to 68 per cent. In this regard the abrogation of Article 35(A) would likely intensify this trend as in the future, non-residents of Kashmir would be able to purchase property in Kashmir and would become permanent residents with a right to vote.
The security environment of Kashmir has been at stake in recent years due to India’s desire to oppress the freedom movement militarily. During Prime Minister Modi’s first term from 2014-2019 the Kashmiri freedom struggle has seen greater military suppression, especially since 2016 when a prominent freedom fighter Burhan Wani had been brutally assassinated. However, it seems that India has still not succeeded in achieving its desired objectives. After a landslide victory in the 2019 elections and with Mr. Modi once again in office as Prime Minster, the military suppression of the freedom movement in Kashmir has further intensified. Recently, India has deployed an additional 38,000 paramilitary troops in the region to join more than half a million troops and paramilitary forces already present. Along with this increased military presence in Kashmir, India has also been involved in continued aggression across the Line of Control (LoC) as evident by its use of prohibited ‘cluster bombs’ against the civilian population. These could have seriously provoked Pakistan to respond in an offensive way and might have resulted in another February 2019 episode.
At the present, Indian aggression along the LoC poses a major threat to peace in the region. India might believe that it could carry out a limited attack or ‘surgical strike’ against Pakistan which would stay below Pakistan’s nuclear threshold as evident from the February 2019 military engagement and the recent attacks along the LoC. India has repeatedly attempted to dominate the escalation ladder as was shown in the recent escalation instance the recent escalation following the Pulwama attack. Prime Minister Imran Khan has warned about the possibility of a ‘false-flag operation’ in Kashmir carried out by India for which Pakistan might be blamed. Based on such blame India could launch a limited attack or a low intensity conflict across the LoC. Consequently, Pakistan would be left with no choice but to respond in kind to any such aggression by India.
India’s abrogation of Kashmir’s special constitutional status and its military offensive in Kashmir could trigger another politico-military escalation between India and Pakistan within a year. India’s policy to forcefully make Kashmir an integral part of the Indian Union by annexing it through political and military means would serve a very dangerous precedent which would likely pose as a serious detriment towards the peaceful settlement of the Kashmir dispute. This change in the constitutional status of Kashmir would greatly limit the prospects for third-party mediation in the future especially for the United Nations, whose resolutions on Kashmir clearly provide a right of self-determination to decide Kashmir’s future. Unfortunately, the prevalent security environment in Kashmir is dominated by India’s aggressive behavior which ultimately would have long lasting implications for strategic stability throughout the South Asian region.
China- Pakistan: Centaur of Friendship
China has been always quotes as an all-weather ally to Pakistan. This mark is not been achieved in a day. Pakistan and China have always been close companions to each other whether its diplomatic or economic fronts. The “deeper than oceans” bond was initiated in 1951 when Pakistan was on the list of first countries who had recognized People’s Republic of China after it officially ended its ties with Taiwan, officially known as Republic of China. Ever since the two countries have actually proven themselves to be iron brothers. Whether it is socio-economic sphere or any issue of national, regional or global importance, the two have stood by each other through thick and thin.
This bond was further strengthened after Beijing launched its Belt and Road Initiative with China Pakistan Economic Corridor as its flagship project. CPEC had been no less than a soothing drug to the maltreated economy of Pakistan. China provided Pakistan with the much needed co-operation specifically in the areas of power generation and infrastructural development. Whereas Pakistan provided China with an alternative route for its trade across the globe that was shorter and beneficial from all aspects.
However, this resolve to cooperate is not limited to bilateral level. China has always supported Pakistan on issues of regional and global importance. This was even acknowledged by the Prime Minister of Pakistan on BRF this year too. He said, “I want to thank China and its leadership for their unwavering support for Pakistan.”
During the recent scenario where India unilaterally scraped article 370 and had illegitimately taken Kashmir under Delhi’s control directly, it was China who rendered its full support to Pakistan’s stance. According to a report of China Daily, China strongly opposes the Indian act of inclusion of Kashmir. China has also urged India to act in accordance with the bilateral ties with Pakistan and with China on the issues of administrative jurisdiction.
Nevertheless China had also assisted Pakistan in internationalizing the issue of Kashmir, rebuking India that it is not an “internal matter”. China had backed Pakistan’s request for holding a UN Security Council’s meeting to resolve the matter. The South China Morning Post, called Kashmir “a flashpoint in ties between the two nuclear-armed neighbors”.
Considering the volatile situation, UN Security Council met behind closed doors on Friday, August 16, 2019 with Kashmir Issue as the only agenda point. The meeting was called specifically for Kashmir for the first time after 1965. Chinese Ambassador, Zhang Jun later spoke to media and once again urged the two-parties to refrain from taking any unilateral action that can aggravate the situation and take measures to solve the issue in lines with the UN resolutions.
In 2018, Donald Trump had tweeted threateningly where he accused Pakistan of “nothing but lies and deceit” and fooling US leaders. Trump also announced that he would not provide any further aid to Pakistan. China once again came out to stand for its strategic partner. China urged the global community that the world should acknowledge Pakistan’s “outstanding contribution” as it has made huge efforts and sacrifices to fight terrorism.
Previously, China had defended Pakistan despite the rage, which the decision had received. In March this year, India had requested UNSC to brand Masood Azhar, the leader of an organization already banned by Pakistan, as a global terrorist. The move was vetoed by China, China’s Foreign Minister said that they need more time and decided to put a technical hold.
China had also stood by Pakistan when back in 2015 it supported Pakistan’s engagement with Nuclear Suppliers Group and expressed hopes for Pakistan’s attainment of membership. China’s Foreign Ministry Spokesperson Hua Chunying had replied to a reporter regarding Pakistan’s aspirations for NSG saying China wished to strengthen cooperation with Pakistan.
Despite the fact that in international relations there are not permanent friends but the bond which Beijing and Islamabad shares has turned the caps. This bond without any doubt is based primarily on mutual benefit and respect but there is more to it too. China supports Pakistan and had supported Pakistan even in times of despair. It took decades long cultural, diplomatic and economic understanding to carve this centaur of friendship between both nations. Islamabad needs to enhance its diplomatic understanding with Beijing as recent diplomatic bustle over Kashmir clearly showed the allies.
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