By Gyan Basnet
The territorial debate over Jammu and Kashmir has been a serious international problem for more than 60 years: it has caused relations between India and Pakistan to become extremely strained. The continued hostility between these two countries over the territory is a real threat to world peace and security, especially in the South Asian region.
The debate has already resulted in several wars with heavy loss of human life. The UN Security Council has repeatedly warned of the continuing danger, and it recognizes that the long promised plebiscite is essential for the inhabitants of the disputed territory to choose their own future. It is still not clear whether Kashmir should be a part of India, or Pakistan, or both, or whether it should be an independent territory.
Three conflicts and many more diplomatic tensions have already resulted from events in Kashmir and, since both India and Pakistan have nuclear weapons, the need to find a solution to the dispute has become immeasurably more urgent.
Today serious questions must be asked regarding the welfare of the Kashmiris, whose lifestyle has been shattered by the continuing dispute. As sufferers through no fault of their own, do they not deserve the right to choose their own future? Should Kashmir not be treated as a disputed territory belonging to nobody but the people of Kashmir? Where are our moral values nowadays? Are "democracy", the "human right to self-determination", and "fundamental freedoms" nothing more than just a hollow talking points? If they are not, why do we not see these values practically applied in this very instance?
Roots of the debate In 1947 India won its independence from Britain. The majority Indian National Congress had wanted a unified, secular, multi-ethnic and democratic state: the All-Indian Muslim League had demanded a "two nations" solution catering separately for Hindus and Muslims. The result of preliminary elections in 1946 had in effect confirmed the existence of two nations, and the Indian Independence Act divided former British-ruled India into two independent dominions of India and Pakistan on August 15, 1947.
At the time of independence India’s 562 princely states, of which Jammu and Kashmir was one of the foremost, were given the option of acceding to either India or Pakistan. For most the decision was simple and based on geographic and religious considerations.
However, the Maharajah of Kashmir was initially undecided. He was himself a Hindu like most inhabitants of Jammu, but overall in Jammu and Kashmir 77% of the population was Muslim. A small Pakistani invasion of Kashmir was sufficient for the Maharajah to make a decision, and on October 26, 1947, Jammu and Kashmir acceded to India.
There followed a brisk war between India and Pakistan on Kashmiri territory before the United Nations stepped in and drew a ceasefire line down the middle of the old state. Pakistan disputed India’s claim to Kashmir insisting that the accession to India had been against the wishes of the people of Kashmir.
In 1948, India brought the issue to the UN Security Council, which on April 21 noted "with satisfaction that both India and Pakistan desire that the question of accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of free and fair plebiscite". The UN Security Council called on India and Pakistan to create the proper conditions for such a plebiscite.
On August 13, 1948, the UN Commission for India and Pakistan (UNCIP) passed a resolution calling for the withdrawal of Indian and Pakistani forces and for Kashmir’s accession to be determined through a fair and free plebiscite. Mr Nehru, the Indian Prime Minister, accepted in principle, but no plebiscite materialized. Instead, Delhi attempted to solidify its position in Indian-controlled Kashmir and made no attempt to comply with the wishes of the Kashmiri people. At the same time Pakistan firmly positioned its forces facing Indian troops along the ceasefire line.
In July 1949 India and Pakistan signed the Karachi Agreement establishing a revised cease-fire line. As a result, on March 30, 1951, the UN Security Council decided that its Military Observer Group would supervise the ceasefire. India and Pakistan were, however, unable to agree on conditions for a plebiscite. The Security Council called again for one in Kashmir in 1951 and yet again in 1957, but conditions were still not conducive.
At the end of 1971, fighting broke out again between the two countries over Kashmir and was ended by the Shimla Agreement specifying that the parties would determine the future of Kashmir at a later date. Today the occupation of Kashmir by India continues with its deployment of over seven hundred thousand military personal.
Granting free choice
The scope of any right to self-determination has traditionally had two aspects - external and internal. The external right to self-determination enables a people to decide its status in the world and to be free from any foreign interference that might affect that status. The internal right to self-determination gives a people an effective voice in reaching the decisions that impact on the political, economic, social and cultural conditions that directly affect their lives.
Through a form of external self-determination many African and Asian countries successfully achieved decolonisation during the second half of the twentieth century. However, it was internal self-determination that enabled the people of Kosovo and East Timor to decide their own destiny and self-governance. Since self-determination is the component of human rights that grants free choice and equality to peoples, it must be allowed to play a vital role in determining the future for the people of the Kashmir.
Theirs is disputed territory, and the only way to solve the conflict is to grant them an opportunity to decide their own destiny. Plebiscites or referendums are the legal mechanisms most widely used to enact effect self-determination, and a plebiscite would be the appropriate means of solving the Kashmir dispute.
The right to self-determination is part of customary international law that imposes binding obligations on all nation states. It establishes a positive right for suppressed peoples eventually to experience and enjoy the full range of human rights.
The Kashmiri people’s entitlement to self-determination as an inherent and fundamental human right is already guaranteed by international legal instruments and precedents. Kashmir has a definable territory with a history of independence or self-governance, a distinct culture, and the will and capability to restore self-governance and reliance. In fact, as a long established princely state, Kashmir’s territory has been defined for hundreds of years with an equally long history of self-governance.
This situation did not change during the period of British colonial rule. The Kashmiri people should be granted the right to self-determination on the grounds that their territory is disputed, that they are a suppressed people, that they have a long history of self-governance, and that they have the support of the international community as needed.
There can be little doubt that international law and practice support the right of the Kashmiri people to self-determination, and the international action taken in East Timor provides a relevant precedent. The international legal status of Kashmir is uncertain, as was that of East Timor. Moreover the Security Council has already determined that the people of Kashmir should exercise their right of self-determination as it also did in East Timor.
However, if these two similarities provide insufficient legal justification and precedent for international action in support of the Kashmiri people’s right to self-determination, then other grounds recognized in East Timor - the fact that the East Timorese had experienced huge human-rights violations and were unrepresented in the existing state - undoubtedly have parallels in Kashmir.
The action taken, therefore, in East Timor should be repeated in Kashmir. To guarantee the Kashmiris' right to self-determination through a plebiscite would certainly stabilize the political unrest in the region and end the Indian occupation of Kashmir.
The future actions
Today Pakistan argues that India ignored the UN resolution calling for a plebiscite. India retorts that Pakistan never withdrew its forces from Kashmir pursuant to the resolution requirement and that the Shimla Agreement negated the 1949 UN Commission for India/ Pakistan resolution.
If the Kashmiri people are not allowed to decide their own future, this crisis will continue, and the inherent dangers will increase. Abandoning any permanent claim to Kashmir may be difficult for India, but it is a very necessary first step.
Genuine negotiation, backed by international pressure, is therefore essential to achieve a final settlement. The Kashmiris have now suffered Indian occupation for almost 60 years during which time the occupation forces have been known to commit human-rights atrocities comparable with more renowned trouble spots around the world. A solution to the Kashmir problem is therefore long overdue, and the world community needs to urgently help bring peace to this war-torn region and its people.
Rejection of self-determination in the case of Kashmir can only prolong a conflict that could have severe international consequences. Two South Asian neighbors are locked in a major arms race: both have nuclear weapons and could use them if the dispute is not resolved.
To avoid such a grave crisis, a concerted political effort is urgently required to find a viable solution. That solution must involve both sovereign nations together with the Kashmiri people and their representatives in the international community. A four-way choice should be put to the people of Jammu and Kashmir - accession to India, accession to Pakistan, independence, or a power-sharing agreement.
The Kashmiris' right to self-determination is morally and legally justified: if ignored ‘Kashmir will remain a flashpoint of global concern in a militarized and nuclear subcontinent.’ A free and fair plebiscite demands all-round political commitment and withdrawal of the armed forces of both sides.
Animosity would undoubtedly remain, but only after the players allow and accept the Kashmiri people's decision on self determination, can there be hope for the potential of peaceful relationships on the sub-continent.
Dr Gyan Basnet who holds a PhD and an LLM degree in International Human Rights law at Lancaster University, UK is a researcher in International Human Rights Law and an Advocate in the Supreme Court of Nepal.