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Kashmir Problem ---International And National Perspectives And India's Interests

V.Nageswara Rao           

Introduction

            The trite statement that the Kashmir problem is a colonial legacy is only a half-truth. While the origins of the problem may be traced to the British machinations of "divide and rule", the ramifications of the issues spreads much wider and deeper. The very birth of Pakistan in the aftermath of communal riots and with the congenital deformity of a "truncated" nation (Jinnah's words) with East Pakistan and West Pakistan separated by thousands of miles of Indian "enemy" territory, had all the seeds of strife, hostility and conflict. A mere look at the atlas would tellingly bring out the fact of the geographical disparities in the territorial sizes between India and Pakistan. India is considered as the “big brother”. The sheer size of its territory, army, resources and economy is such India will find it hard to convince the smaller States of the subcontinent otherwise. The psycho-dynamics of the situation is that India will be conclusively presumed to harbour “hegemonic” ambitions.

            When British India was partitioned on communal lines, the Muslim majority areas were to go to Pakistan. But, the five hundred and odd Princely States were given independence and they were left to decide for themselves whether they wanted to continue as independent States or opt to merge with India or Pakistan as the case may be. Junagarh was a Princely State with a majority of Hindu population but ruled by Muslim ruler whereas Kashmir was a Muslim majority State with a Hindu ruler. In the case of Junagarh, Jinnah argued that the decision should be that of the ruler and not of the population. What was sauce for the goose was sauce for the gander and, as the noted jurist Johnson observes, Jinnah was hoist by his own petard. The same rule should have been applied to Kashmir also. But Pakistan attempted to take over Kashmir through infiltration and force in 1947 and the Maharajah wanted India to go to his rescue with military help. India expressed its inability to send its troops in the absence of accession by Kashmir. The offer of accession by the Maharajah was accepted by India on 27 October 1947 and India sent its troops into Kashmir to repel aggression by Pakistan. It was India which referred the matter to the UNO and the UNO appointed a Commission to arrange cease-fire and negotiate a settlement of the dispute. The Commission did so w.e.f. 1 January 1947 and passed a resolution that provided for the cease-fire, withdrawal of troops by Pakistan and the determination of accession through a plebiscite in Kashmir. But the resolution remained a dead letter as Pakistan did not withdraw from the so-called "azad Kahmir"and, for that reason India also did not hold plebiscite. The UN Military Observer Group for India and Pakistan (UNMOGIP) was set up to monitor the cease-fire but of late the Group has become dysfunctional. The standoff between India and Pakistan continues on the so-called Line of Control (LOC) with frequent firing across the line by both sides.

           Both India and Pakistan have advanced arguments based on International Law. India argues that: (1) The Kashmir problem is, right from its inception, a creation of infiltration and intervention by Pakistan. It is a basic principle of International Law that States should refrain from such acts. (2) Accession to India is final and its validity did not depend on any opinion poll. (3) Pakistan is actively abetting and aiding cross-border terrorism in Kashmir and in other parts of India. (4) The entire Kashmir, including the "occupied" Kashmir, is an inalienable part of India.

            On the other hand, Pakistan argues that (1) Accession to India is not final as India agreed for plebiscite. (2) Kashmiri people have the Right of Self-determination of Peoples which right is also recognized by the Charter of the United Nations as one of its purposes (Art 1, para 2). (3) Kashmiri insurgency is a freedom struggle and Pakistan only expresses its solidarity with the aspirations of the Kashmiri people. (4) India should enter into negotiations with Pakistan and the Kashmiri people for the settlement of the problem.

            It would be worthwhile to discuss in detail some aspects of the arguments advanced by both by India and Pakistan.

Right of Self-determination of Peoples

            Art 1 of the UN Charter deals with the “Purposes” of the Charter and provides in Paragraph 2 that one of its purposes is to “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. Chapter IX of the Charter deals with “ International Economic and Social Cooperation” and in Art 55 refers to the “creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. The reference to self-determination of peoples in the above two provisions of the Charter was made, obviously, in the context of “developing friendly relations” and “the creation of conditions of stability and well-being” and of “equal rights” of nations. Hence the reference to self-determination is taken to mean the right of the people to choose their form of government without intervention from other States. In this sense, the right of self-determination of the peoples is the juridical correlative of the duty of all States not to interfere in the internal or external affairs of other States. As the Charter is based on the principle of “sovereign equality of all its Members” (Art 2(1)), people of every State have the right to decide for themselves the means and instruments of their development and no other State has the right to dictate or interfere.

            In fact, the right to self-determination is generally used in two altogether different contexts. First, the doctrine of self-determination is used in the context of decolonization. An example of this case is East Timor. Second, where certain under-developed territories are placed under the administration of developed States under the Mandates System of the League of Nations or the Trusteeship System of the United Nations, the administering States were supposed to help those territories to gain a level of development so as to enable them to eventually gain self-government and independence. One example of such territories is the South West Africa which is renamed as Namibia. It is in this context that Art 76, para (b) talks of “the freely expressed wishes of the peoples concerned” in the process of their progressive development towards independence. It is again in this context that the Declaration on the Granting of Independence to Colonial Countries and the Peoples adopted by the General Assembly of 1960 mentions the “freely expressed will and desire” in deciding upon their independence. East Timor, Marshall Islands etc. are some of the territories where referendum has been held under the UN auspices to ascertain the wishes of the peoples and decide the future of those territories. “Basic Facts About the United Nations”, a book published by the United Nations Department of Public Information in 1993 does not mention Kashmir in the list of such territories.

             On the other hand, if the right of self-determination is to be used and applied in situations like Kashmir, no State in the world would be free from demands from certain local elements either for greater autonomy not envisaged by their Constitutions or even, in the alternative, for secession. The right may be demanded by “peoples” either on the basis of residence in certain territory or ethnic, religious or other identity.  Northern Ireland and Chechynya are examples of such cases. It is clear that the Charter was not propounding the subversive doctrine of destabilizing of the territorial integrity of nations by granting to parts of States the right to redraw the map of those States in the name of self-determination.

            The question that might be raised in the context of Kashmir is whether India had undertaken to hold a plebiscite as a condition for accession to India declared by the Maharajah of Kashmir. Obviously, it could not have been a condition precedent as the accession by Maharajah was complete and effective as he did not make it a conditional one. The only question is whether India had undertaken that obligation voluntarily subsequent to accession. “Basic Facts About the United Nations”, the UN publication referred to above says that on 13 August 1949 the United Nations Commission for India and Pakistan

“made proposals on a cease-fire and troop withdrawals, and proposed that the accession of Jammu and Kashmir be decided by plebiscite. Both sides accepted….but the Commission was unable to reach agreement with the parties on the terms of demilitarization of the State before a plebiscite could be held.”

            From the above it is clear that both India and Pakistan agreed to hold a plebiscite as a part of package deal of cease-fire and troop withdrawals and plebiscite could not be held because the precondition of troop withdrawal did not take place. Thus, it is not that India alone agreed for a plebiscite and did not keep its word. Plebiscite was to be held by both India and Pakistan and it meant that it was to be held in State of Jammu and Kashmir as well as Pakistan Occupied Kashmir(POK). A referendum with the full deployment of armed forces on both the sides was not what was envisaged by the UN Commission. And that was in 1948, and much water has flown down the Indus since then. India and Pakistan have fought three major wars over Rann of Kutch in 1965, regarding Bangladesh in 1971 and more recently over Kargil. The 1972 Shimla agreement between Indira Gandhi and Zulfiqar Ali Bhutto has laid down a new framework for the settlement of all disputes by bilateral discussions and the agreement did not leave any space for the UN role in these matters. There is a vital change of circumstances after the 1948 proposals which have been overtaken by the subsequent events.

Appraisal

            Though it is in the interest of all the parties concerned to find ways and means of  a lasting solution to the Kashmir problem in the larger context of Indo-Pakistan relations, there is no immediate prospect of the resolution of the problem. The present scenario of the Kashmir dispute from its internal and international aspects is:

           (1) If India tries to solve the internal problem of Kashmir by focusing on economic development,           
                industrialization and generation of employment for the youth, Pakistan, Hurriat and militants
               will not like it as, in that case, they do not have any role to play.
          (2) If India tries to talk with Hurriat only, Pakistan and the militants will not like it. Militants have
               already threatened Hurriat leaders that they will be killed if they entered into a dialogue with
               India.
          (3) If India tries to talk with Pakistan only, the problem cannot be solved as local elements also
               must be involved. In any case, Hurriat and militants will feel marginalised.
          (4) Militants have an agenda that is larger than Kashmir and, in any case, the epicenter of
                militancy is not in Kashmir but mostly in Pakistan and partly elsewhere. In view of this fact
                and of the statement of Gen. Musharraf that it would not be possible for Pakistan to end cross-
               border terrorism, it would be naïve for India to expect that settlement of Kashmir dispute
               would usher in an era of peace to the people of this troubled region.
    
            General Musharraf has gone on record that (1) No Government can survive in Pakistan if it compromises on Kashmir. (2) Cross-border infiltration cannot be totally be stopped by Pakistan as the border is porous and thousands of Indian troops have not been able to do it.(3) Pakistan does not want the entire Kashmir which, in effect, means that India should hand-over Kashmir region to Pakistan and keep Jammu and Ladakh for itself. (4) LOC as international boundary is not acceptable to Pakistan. India cannot accept to this mischievous proposal as giving Kashmir to Pakistan amounts to a further division of India on communal lines and may set off a chain reaction. Even if the proposal is accepted, there is absolutely no guarantee that Pakistan will desist from fomenting cross- border terrorism. Pakistan cannot continue to aid and abet cross-border terrorism and ask India to stop it if it can.

            India has two options to deal with the internal and external problem relating to Kashmir. For the present, India should try to insulate the internal from the external aspect and focus its attention on the internal problem of Kashmir. India should talk to the various groups in Kashmir, though none of them, by itself, can be taken to represent the Kashmiris. The Central Government should learn from its past mistakes in this regard. The State and Central Governments should sincerely strive to develop the region economically and industrially and generate greater avenues for employment for the Kashmiri youth within and outside the State. Attempts should be made for greater integration of Jammu, Kashmir and Ladakh within themselves and with the rest of the country. This is an internal problem of India and, in this democratic process, Pakistan would not obviously have any role whatsoever.

            As far as the international aspects of the problem is concerned, for the present, it serves India better to stay put at the LOC and wait till a Government can emerge in Pakistan that is able and willing to enter into meaningful dialogue on all the issues between India and Pakistan. While this may be so in the short term, India should leave Pakistan to its fixation on Kashmir and try to strengthen other aspects of Indo-Pak relations, particularly, trade and economic relations. The 12-point proposals made on 22 October 2003 by Mr. Yashwant Sinha, the External Affairs Minister, is a right move in this direction. The twelve proposals were:

  1. Resume talks to restore civil aviation links.
  2. Discuss resumption of rail links, following aviation talks.
  3. Resume bilateral sporting meets, including cricket.
  4. Issue visas in cities outside the two capitals, to shorten travel.
  5. Permit individuals aged at least 65 to cross into India by foot. Earlier only groups could walk across while individuals could go on bus only.
  6. Run more buses between New Delhi and Lahore.
  7. Establish links between the coastguards of the two countries, before and after the fishing season.
  8. India and Pakistan should stop arresting each other’s fishermen within certain sea areas.
  9. Provide free medical treatment to the 20 Pakistani children.
  10. India and Pakistan should increase the staff of their respective embassies.
  11. Consider the starting of ferry services between Mumbai and Karachi.
  12. Start new bus services between Srinagar and Muzaffarabad, the capitals of the two Kashmirs. Another proposal could be the starting of a bus or rail link between Khkhropar (in Pakistan’s Sind province) and Munaba (in India’s Rajasthan State).

            India should also strengthen the SAARC as an economic union on the lines of European Union and should not allow it to degenerate into a forum for mutual recrimination between India and Pakistan. India ha a major role to play in this regard and exercise greater restraint. The countries of the SAARC region should encourage the multilateral cooperation to dominate over the bilateral problems. India should allow the economic rather than political forces to dictate the future course of events in the subcontinent, including Kashmir.

 

 
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