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March 5, 2015

Kashmir: People’s Aspiration Must Be Respected

By Dr. Ghulam Nabi Fai   

The people of Jammu and Kashmir, who are larger in number than 123 currently independent nations and 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 of 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 recognized by the United Nations. It was upheld equally by India and Pakistan when the Kashmir dispute was brought before the Security Council.  Since, on 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 of self-determination under impartial auspices and in conditions free from coercion from either side. The agreement is embodied in the resolutions of the United Nations Commission for India and Pakistan explicitly accepted by both Governments. It is binding on both Governments and no allegation of non-performance of any of its provisions by either side can render it inoperative.  

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 of 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 not fight over it; 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 be a plot to deny the people of Kashmir the substance of self-determination while providing them its form.  It would amount to telling them that they can choose independently but they cannot choose independence.  It would make a mockery of democratic norms. 

This is not a novel view of the Kashmir question.  When India first brought the issue to the United Nations, its representative, Sir Gopalaswami Ayyangar set out three options for Jammu and Kashmir: (a) accession to India, (b) accession to Pakistan and (c) independence.  The possibility of the third option is reflected in the wording of more than one resolution of the Security Council.  Those adopted on March 14, 1950 and March 30, 1951 refer to " the final disposition of the State of Jammu and Kashmir (to be) made in accordance with the will of the people expressed by the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations."  The phrase “final disposition" is inclusive; it has a wider meaning than "accession to India or Pakistan".  The Security Council used this expression not for convenience of drafting but because it would not be justified in foreclosing any option for the people of the State.  These resolutions, which were adopted after the conclusion of the agreement between India and Pakistan, do not detract from the binding nature of that agreement as far as the obligations of these two parties are concerned. But they do imply a recognition of the inherent right of the people of Kashmir to decide their future independently of the contending claims of India and Pakistan. 

The idea of independence for Kashmir, if not for all its zones, has in fact never been beyond the mental horizon of its people.  Demand for it, however, was either suppressed or somewhat muted because of two factors.  The first was the cold war, which generated the fear that an independent Kashmir would be a likely victim of foreign aggression, subversion or intrigue. The second was the supposition that small states would not be able to sustain their independence. 

Both these inhibiting factors have now disappeared. The cold war has ended. Scores of states, individually smaller in size and population than Kashmir, have taken their rightful place as fully sovereign members of the United Nations. This explains the resurgent support for independence among all the strata of the population of Kashmir. 

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 neighbors. Indeed, it would provide them a meeting ground. In this respect, Kashmir could make a contribution to the stabilization 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 sub-continent 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 of Jammu and Kashmir. All the former provinces, states or territories which today are included in India or in Pakistan became legally parts of one or the other through a process which harmonized with the expressed will of their people; none was dragged into a union against its wishes. Kashmir is the sole exception. Among all the territories known collectively as India under British rule, Kashmir is the only one which was never provided the opportunity to decide its own status or affiliation. What, therefore, applies to Kashmir does not apply to, for example, Assam or Tamil Nadu in India or to Sind or Baluchistan in Pakistan. This is also plain from the fact that both India and Pakistan solemnly accepted an international obligation regarding Kashmir which neither as a sovereign state would accept regarding any of its constituent units -- the obligation to withdraw their forces from the territory. The demilitarization of Kashmir, which is the first demand of the people of Kashmir and 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, by establishing their relations on the firm basis of good-neighborliness and cooperation in facing their common problems, by giving to each a recognized frontier, 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 annexationism 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 is the Secretary General of World Kashmir Awareness.