The Real Question | Sikander Shah

THE cancellation of the National Security Adviser talks between Pakistan and India some days ago could lead to a further worsening of relations between the two nuclear-armed states; border skirmishes have already occurred since then.

While security imperatives are genuine concerns for both states, it is undeniable that there can be no lasting peace or trust between the two states unless there is real progress on Kashmir. India has conflicting positions on Kashmir. Under the Shimla Agreement it agreed to work towards a final settlement of Jammu and Kashmir, but it also continues to argue that the region is an integral part of India.

Jammu and Kashmir, a princely state at the time of Partition, was a sovereign territory. A statement from the British Cabinet Mission in India in 1946 confirmed this, and Article 7 of the Indian Independence Act of 1947 dealing with lapse of suzerainty of the British Crown over the Indian states reaffirmed this fact. Thus, the Kashmiri people had a vested right of self-determination from the time of independence. This was further confirmed when the Security Council and the UN Commission for India and Pakistan reiterated this position through resolutions. To date, however, a plebiscite has not been held.

India ‘arranged’ local elections in India-held Kashmir in 1951, which were widely perceived as being fixed. As a result of these elections, a constituent assembly was instituted, which thereafter declared union with India. Subsequently, India publicly stated that such a declaration by the constituent assembly was equivalent to a plebiscite. This rationale was rejected outright by the Security Council which thereafter passed a resolution on Jan 24, 1957, declaring India’s actions as untenable.

The Kashmiris’ right of self-determination was further secured by the progressive development of customary international law in relation to this collective freedom. General Assembly Resolution 1514 (1960) firmly recognised the right of colonial people to self-determination; and General Assembly Resolution 2625 (1970) subsequently affirmed the right of internal self-determination, which the population of Kashmir has consistently been deprived of. Internal self-determination is the right of people to choose, with freedom, their form of government, state authority, and political leaders.

Under international humanitarian law as codified in Article 42 of the 1907 Hague Regulations, a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”. In this regard the recent statement from Sartaj Aziz, “If Kashmir is not an issue for India, why have [they] stationed 700,000 troops in Indian-occupied Kashmir?” has a more profound meaning: the statement reiterates Pakistan’s position on the continued occupation of Kashmir by India.

Regrettably, the occupation of the Kashmir Valley is additionally having an adverse impact on rights enjoyed by the people of Gilgit-Baltistan. This region is not legislatively represented in the federal parliament and the right of suffrage is not available to its population. Because GB was part of the state of Jammu and Kashmir as it existed at the time of independence, successive governments in Pakistan have been reluctant to accord its population full citizenship rights, out of fear that such a course of action might result in condoning Indian rule over territory it occupies and administers. This is likely the reason why Pakistan has also shown hesitancy in demarcating the LoC on official maps as the de facto boundary.

Many avowed pragmatists have argued that the impasse between Pakistan and India can only be overcome throu­­gh a series of trust and confidence-building mea­s­ures, which focus on the resolution of lesser disputes and/or on promoting trade. In this context, disputes pertaining to Sir Creek, the Indus Water Treaty and Sia­chen come to mind. The reality is that such an approach has been tried and has repeatedly failed. The cliché that only serious progress on the larger Kashmir issue will bring about improvement in ties and lasting peace in the region still seems like the most persuasive hypothesis. All other residual disputes will be easy to resolve afterwards.

A guarded yet head-on approach to resolving the Kashmir issue between the two neighbours with the support of the Kashmiris is a pragmatic solution that should be sought in the interim. This Kashmir-focused approach will serve as the impetus for building confidence and trust between all parties. In the end, however, it will be up to the Kashmiris how they plan to fully exercise their right of self-determination.

In conclusion, it was a mistake not to explicitly mention Kashmir at the Ufa talks, but cancelling the high-level NSA talks because Kashmir was not up for discussion was the correct decision taken by the government.

The writer is a former legal adviser to the Ministry of Foreign Affairs.

The Real Question | Sikander Shah

Published in Dawn, September 3rd, 2015

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