The PM of India’s assertion that “Kashmir is an integral part of India” needs to be supplemented by some observations from the viewpoint of the people of Kashmir. This deserves to be borne in mind by all those who wish the conflict to be justly resolved once and for all.
When the Kashmir dispute erupted in 1947-1948, the United Nations took the stand that the future status of Kashmir must be ascertained in accordance with the wishes and aspirations of the people of the territory. The U.N. Security Council adopted a resolution on 21 April 1948 which was based on that unchallenged principle. So the idea that ‘Kashmir is an integral part of India’ is in contravention to India’s international obligations.
Any such suggestion is an insult to the intelligence of the people of Kashmir.
The people revolted against the status quo and status quo cannot be an answer? Also, Kashmiris wish to emphasize that their land is not a real estate which can be parceled out between two disputants but the home of a nation with a history far more compact and coherent than India’s and far longer than Pakistan’s.
No settlement of their status will hold unless it is explicitly based on the principles of self-determination and erases the so-called line of control, which is in reality the line of conflict.
Secondly, under all international agreements, agreed by both India and Pakistan, negotiated by the United Nations and endorsed by the Security Council, Kashmir does not belong to any member state
And if ‘Kashmir is not an integral part of India’ then Kashmiris cannot be called separatist or secessionist. Because Kashmir cannot secede from a country – like India – to which it has never acceded to in the first place.
In a poll conducted jointly by major news outlets on Aug 12, 2007: CNN-IBN and Hindustan Times in India and Dawn and News in Pakistan, a majority of those polled in Kashmir Valley (87% to be precise) preferred freedom (Azadi). The Azadi means the rejection of the idea that ‘Kashmir is an integral part of India.’.
However, there is but one fair, just, legal, and moral solution to Kashmir which was provided by the United Nations. The procedures contemplated at early stage of the dispute at the United Nations for its solution may be varied in the light of changed circumstances but its underlying principle must be scrupulously observed if justice and rationality are not be thrown overboard. The setting aside of the UN resolution is one thing; the discarding of the principle they embodies is altogether another. So the settlement has to be in accordance with the wishes of the people; impartially ascertained; in conditions of freedom from intimidation.
Kashmiris are open to a constitutional dispensation that answers all of India’s legitimate national security and human rights concerns. With regard to the former, they are willing to explore permanent neutrality for Kashmir along the model of the 1955 Austrian State Treaty and a renunciation of war or the threat of force in international affairs along the model of Article 9 of the Japanese Constitution. They are willing to consider abandoning a military force like Costa Rica, Haiti, and Panama.
Moreover, they hold no objection to providing community quotas in government offices along the lines of the 1960 Constitution for the Republic of Cyprus to safeguard against invidious discrimination of any religious or ethnic group, i.e., Pandit, Buddhist, Sikh, and Muslim alike.
With good faith by all parties common ground leading to a final settlement of the Kashmir tragedy can be discovered.
And an appointment of a special envoy by the United Nations or by President Obama, like Bishop Desmond Tutu will hasten the way of peace and prosperity in the region of South Asia.
Dr Fai can be reached at firstname.lastname@example.org
by Dr Ghulam Fai/ March 1, 2015
The people of Jammu and Kashmir, who have a defined historical identity, are at present engaged in a massive, indigenous and non-violent struggle to win their freedom from the foreign occupation of their land. This struggle is not motivated by bigotry or ethnic prejudice, for its sole aim is the right to self-determination of the people, irrespective of their religious affiliations and ethnic preferences.
The applicability of the principle of self-determination to the specific case of Jammu and Kashmir has been explicitly recognised by the United Nations. It was upheld equally by India and Pakistan when the Kashmir dispute was brought before the Security Council. Since with the establishment of India and Pakistan as sovereign states, Jammu and Kashmir was not part of the territory of either, the two countries entered into an agreement to allow its people to exercise their right to self-determination under impartial auspices.
It is commonly thought that the resolutions limited the choice of the people of the State regarding their future to accession to either India or Pakistan. Though understandable, the impression is erroneous because the right to self-determination, by definition, is an unrestricted right.
By entering into the agreement, India and Pakistan excluded, and rendered inadmissible, each other’s claim to the State until that claim was accepted by the people through a vote taken under an impartial authority. They did not, as they could not, decide what options the people would wish to consider. No agreement between two parties can affect the rights of a third: this is an elementary principle of law and justice which no international agreement, if legitimate, can possibly flout.
To put it in everyday language, it was entirely right for India and Pakistan to pledge to each other, as they did, “Here is this large territory; let us make its people decide its status.” But it would be wholly illegitimate for them to say, “Let one of us get the territory. Let us go through the motions of a plebiscite to decide which one”. That would not be a fair agreement. It would amount to telling them that they can choose independently but they cannot choose independence. It would make a mockery of democratic norms.
It must be pointed out that an independent Kashmir would not be a Kashmir isolated from India and Pakistan. On the contrary, it would have close links, some of them established by trilateral treaty provisions, with both its neighbours. Indeed, it would provide them a meeting ground. In this respect, Kashmir could make a contribution to the stabilisation of peace in South Asia which no other entity can.
There is only one standing argument against an independent status for Kashmir. It is being contended that the emergence of another sovereign entity in the subcontinent would encourage secessionist tendencies in both India and Pakistan and lead to a collapse of their existing federal structures. The argument may be based on genuine fear or it may be only a stratagem to avoid a just solution of the Kashmir dispute; in either case, it can be faced rationally. When so faced, it proves to be untenable because it ignores two vital considerations.
The first is related to the sui generis nature of the question regarding the final disposition of the State. All the former territories which today are included in India or in Pakistan became legally parts of one or the other through a process which harmonised with the expressed will of their people. Kashmir is the sole exception which was never provided the opportunity to decide its own status. What, therefore, applies to Kashmir does not apply to, for example, Assam in India or to Balochistan in Pakistan.
The demilitarisation of Kashmir, to which both India and Pakistan are committed legally and morally does not, therefore, mean secession and cannot encourage separation either. Kashmir cannot be regarded to have seceded from what it never acceded to in the first place.
The second consideration which the argument ignores is that Kashmir can emerge as independent in the context of the implementation of an international agreement to which both India and Pakistan are parties. By removing the perennial cause of conflict between them, the process would encourage their mutual respect for each other’s territorial integrity and strengthen their internal cohesion. Only reliable conditions of peace and not annexation constitute an effective safeguard against disintegration.
No solution of the Kashmir problem will be just or viable if it ignores the intense and popular sentiments of the people. Justice and pragmatism require that no one of the conceivable options for the people should be excluded.
Dr. Fai can be reached at 1-202-607-6435