Sunday, 6 November 2016

Kashmir: A settled unsettled dispute?

Kashmir has been in the news for a long time due to allegations of illegal occupation from both India and Pakistan and comprises one of the longest unsettled international disputes in history. I felt there requires to be clarity on the issue of what has actually happened in the past and how we arrived at where we are now. To understand the legality of the dispute one needs to consider various factors and most importantly, the United Nations Security Council Resolution 47. But before that, let us dive into history to see what caused the dispute in the first place.

Maharaja Hari Singh, then Kashmir’s erstwhile ruler had an option to remain independent or go with any of the two countries that were formed during the Independence from the British. Even before there was a decision in that regard Kashmir had witnessed armed violence and blocking of essential supplies in the Pakistani Punjab area. The forced displacement of Sikhs and Hindus from Punjab were already in motion before Kashmir had joined India. This led into religious conflict eventually and many Muslim coup d’etats were witnessed leading to the formation of an ‘Azad Kashmir’. Faced with no basic supplies and an overwhelming amount of armed violence, Kashmir willingly and legally acceded to India as can be seen from Arts. III and IV of the Jammu and Kashmir Constitution. India had sent its military to control the insurgency and worsening situation in Kashmir.

After the first Indo-Pak war in 1947, where Pakistan supported and supplied arms to insurgent groups, India expressed willingness to refer the dispute to the UN Security Council mediation under Art. 35 for maintenance of international peace and security. It is thus the fruit of this that UN Security Council Resolution 47 was adopted. Resolution 47 can be studied simply and was a three-step resolution to be precise if one has a clear reading of Part A of the Resolution. Firstly, it required the Pakistan Government to withdraw any Pakistani nationals not ordinarily resident in the State, including armed forces and tribesmen and stop providing material aid to the belligerent groups in the State. It is after this condition was satisfied that the Indian government was required to reduce the number of armed forces in the State but keep such forces so as to maintain the law and order of the State. India, was however entitled to take measures for the protection of minority groups in the State, namely the non-Muslims who had by then, already been forcefully displaced by the belligerent groups.

The third and most extensive condition was that there required to be held a plebiscite after the satisfaction of the two pre-conditions to determine whether Kashmir would accede to India or Pakistan. Unfortunately, the first condition was never met and Pakistan refused to not aid belligerent groups in hampering law and order and neither did they remove a single member of the army from Kashmir. Subsequently, Pakistan illegally ceded 5,180 sq. Km. in the Shaksgam valley to China via the 1963 China-Pakistan Border Agreement. Further on, in 1990, there was what was known as ‘ethnic cleansing’ in the Kashmir valley when all the Kashmiri Pundits were forced to flee their homeland. Thus, prima facie, it appears that not only has Pakistan not abided by the resolution, but gone against its whole letter and spirit. The argument that a Muslim-majority princely State should mandatorily join Pakistan is a bad argument since if religion was the sole basis of the divide, the Hindu-majority princely State of Umerkot should have been offered to India after it acceded to Pakistan in lieu of Kashmir.

India had long agreed for a plebiscite since the time of Jawaharlal Nehru, but Jinnah was fearful of losing territory and hence asked for the plebiscite to be conducted by the Governor Generals instead of the United Nations. It is unfortunately Pakistan that has blocked the right to self-determination of the Kashmiris by blocking Resolution 47. The use of force is considered illegal even in case of self-determination under Art. 2(4) of the UN Charter. However, the question of self-determination was also settled on 6th February 1954 when the freshly elected Jammu and Kashmir Legislative Assembly unanimously ratified Kashmir’s accession to India.

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