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Kashmir’s legal framework

Kashmir’s legal framework

2018-02-27T00:01:44+05:00 Durdana Najam

Kashmir has a history of legal frameworks around United Nation resolutions. In 1948, when India launched a complaint with the United Nations Security Council under Article 35 of the UN Charter. Charging Pakistan with aiding and abetting tribal invaders into Jammu and Kashmir, which the complaint pointed out had been acceded to Indian Union through an Instrument of Accession signed by their ruler. Three SC’s or United Nations Commission in Pakistan resolution – April 21 and April 13 1948 and January 4, 1949 – gave an international legal framework to the Kashmir dispute. In all the three resolutions it was demanded of Pakistan and India to withdraw their forces from Jammu and Kashmir. In the first and third resolutions both the countries were asked to conduct impartial plebiscite to determine the will of the people that whether they wanted accession with India or with Pakistan or wanted independence. As inertia developed around SC resolutions another option viz., the Dixon Plan was initiated. It replaced UNCIP in 1950 and proposed “Regional Plebiscite.” This plan too failed. In 1951, after the termination of UNCIP, UNSC passed resolution 91 and established United Nations Military Observer Group in India and Pakistan (UNMOGIP) to monitor the ceasefire line.

The last UN resolution was moved in the wake of 1971 war between India and Pakistan. The Soviet Union vetoed the resolution. Later the Simla Peace Accord in 1972 changed the pattern of interaction of both the countries. India’s stance over Kashmir hardened with an insistence that the issue would be resolved bilaterally with zero international intervention. This brought UN’s involvement in Kashmir affair to a virtual end. India’s stance to resolve Kashmir issue hardened with the signing of the Simla Agreement. Following the agreement, India insisted on maintaining the Kashmir issue at the bilateral level with no international intervention. Pakistan, however, maintained that the agreement noted that ‘the principle and purpose of the Charter of the UN shall govern the relations between the two countries.’ Bhutto argued in the National Assembly debate in 1972 that the UN Charter’s supremacy over international disputes could not be overlooked.

In the Simla Agreement the ceasefire line was changed into the Line of Control (LoC). From the Indian perspective this change had turned the status of the border from temporary to a de facto permanent border. For India this also meant an end to the mandate of the UNMOGIP. Pakistan, however, kept supporting its continuation since it maintained that Kashmir was still a disputed issue. Ever since 1972 India had not reported to UNMOIP whereas Pakistan continues to do so. The former UNMOGIP chief Major General Hermann Loidolt described Kashmir as a ‘Tormented Country,’ and blamed India and Pakistan for playing games with Kashmir.

Although Kashmir has been profiled in the UN as a territorial dispute between India and Pakistan and as a struggle of the people of Jammu and Kashmir for the right of self-determination, India, as early as 1950, had absolved itself of the plebiscite promise, on the pretext that after the creation of the Constituent Assembly in J&K and the adoption of the constitution, declaring it the integral part of India, the people of Kashmir had accepted to remain within the Union of India. Pakistan, however, insists that Kashmir is a disputed territory that needs resolution.

For the last 70 years Pakistan has been conveying to the Kashmiris living in IoK that they are not alone in their fight for freedom. We have been celebrating Kashmir’s freedom struggle by observing different days when speeches are made, processions are taken out, human chains are formed, prayers are held, and a new resolve to solve the Kashmir issue is revoked. A message is sent across the globe that the movement to free Kashmir from Indian atrocities is alive. But the million-dollar question is: has our voice reached the global corridors of power. Is an ordinary Pakistani also concerned with Kashmir conflict or has it become simply a policy issue?

The shift in South Asian politics is seeing China emerging and this could intensify contestation in the region. Afghanistan’s turmoil is not abetting by any measure, making the US presence in the region all the important. With China on the rise, the US would hardly consider it wise to leave the region, and there could not be a better place to stay on, than Afghanistan. India, having become a favourite nation of the US to counter China, has been successful to tilt the US narrative against Pakistan because of the latter’s alleged experience of double dealing from Pakistan. India’s position on Kashmir in the context of Pakistan as a country producing and exporting terrorism has only hardened India’s approach towards the freedom fighters. It has been observed that when a serious conflict is neglected it transforms into a struggle more intense and difficult to manage. The conflict of Northern Ireland in 1983, Sri Lanka in 1983, Palestine in 1987 and Kashmir in 1989 are examples of this mutation. Suppression, having taken a deadly turn because of the use of all sorts of legal and physical aggression such as the pallet guns by India has only solidified the resolve of the freedom fighters.

The structure of the Kashmir conflict, the general pattern of attitude of the international community and the strategic decision made by leaders, have played a decisive role in giving shape to the way the peace efforts have progressed and foundered. The recent pattern of blaming and not sitting at the dialogue table is all the more disturbing. The security, economics and internal coherence of both the countries are not linked with Kashmir. Had that been the case, the process of dialogue would not have stopped. On the surface, it looks that neither India nor Pakistan has interest in uniting under the umbrella of UN resolutions and both of them are exploiting people’s emotions.

Barbara Crossett, an American correspondent who happened to be with Rajiv Gandhi hours before he was assassinated, quoted the Indian leader as saying: ‘but I know who could have solved these problems with us—General Zia. We were close to finalizing agreement on Kashmir, we had the maps and everything was ready to sign. And then he [Zia] was killed. ‘

Whenever it may happen, the solution to Kashmir would eventually be found in Kashmir. Neither Pakistan nor India will give up on their side of Kashmir. Other than LoC there is no other solution to Kashmir. Undivided, independent or neutralised Kashmir is not in the interest of both the countries. From Zia to Musharraf, even the military dictators, had to work out the Kashmir solution around the LoC. For any such agreement both the countries have to come out of their preconceived and forced notion of unity with Kashmir. Political leadership in both countries, particularly in Pakistan will need to persuade the military that force is not an option for the liberation or neutralisation of Kashmir, hence a minimal role of the military. Let engagement, dialogue and diplomacy prevail for a possible compromise and peaceful future. The role of the International community cannot be ruled out. Unfortunately over many years the international world has been seeing the human rights violation in Kashmir without qualms. This insensitivity must end to give the Kashmiris their right to self-determination.

 

The writer is a freelance journalist based in Lahore.

durdananajam1@gmail.com

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