The Genesis of the Kashmir Dispute

 
 
 
genisis of the Kashmir Dispute

Preamble

The dispute over Kashmir between India and Pakistan remains yet to be solved. The matter lies at the heart of every Pakistani national who feels the pain and plight of the Kashmiri people and acknowledges their right to self-determination. As the Indian government continues to inflict human rights violations, Pakistan is making substantial efforts to highlight the Kashmir issue on the global stage and bring attention to the grave human rights abuses in the region. This blog presents the genesis of the Kashmir dispute. After mentioning the early stages and evolution of this dispute, the blog will also present some viable future policy options for Pakistan.

Introduction

The issue of Kashmir lies at the centre of India-Pakistan rivalry and has long been a bone of contention between the two countries on several fronts. The dispute started after the partition of the Subcontinent in 1947 with Pakistan and India both claiming rights to the entirety of the princely state. Over time, the dispute escalated into three wars and several armed skirmishes between India and Pakistan.  Princely states were allowed to join either of the two independent countries at the time of partition, but although Kashmir had a clear Muslim majority coupled with its economic, cultural, and geographic contiguity with the Muslim majority area of Punjab, certain political developments during and after the partition resulted in the division of the region. Although the matter had been taken up to the United Nations (UN), and several other efforts to resolve the dispute have been made in the past, no solution has worked due to the two countries not being ready to revise their positions. The recent unilateral decision of India to revoke Article 370 which provided autonomous status to the disputed region has been strongly condemned by Pakistan on all diplomatic fronts. Efforts are now geared towards highlighting the gross human rights violations being conducted in the region to rekindle debate on the issue, ultimately inviting the world to accept the right of self-determination for the Kashmiri people.

Maharaja Hari Singh’s Accession: A Conditional Acceptance

Jammu and Kashmir was one of the princely states throughout the Indian subcontinent. Although the majority of its population was Muslim, the ruler was Hindu. In 1947, Maharaja Hari Singh, the princely ruler, was apprehensive to join either of the two states until the British had left the subcontinent. But due to the attempt of invasion by the Pathan tribesmen from Pakistan’s northwestern regions, the maharaja, in an attempt to prevent this invasion, sought necessary military support from the Indian Governor. India made sure that unless the princely state formally accedes to India, no military assistance would be provided. Under this condition, Maharaja Hari Singh signed the Instrument of Accession on 26th October 1947. Lord Mountbatten, the then Viceroy, conditionally accepted this accession on the basis that once peace and stability had been restored, a plebiscite would be held to determine the true will of the Kashmiri people. Accordingly, India provided its military assistance the next day and was able to retake two-third of the princely Jammu and Kashmir state from the invasion of the Pakistani tribesmen. Meanwhile, India claims that the accession was unconditional whereas Pakistan terms it as fraudulent.

United Nations Security Council Resolutions

India brought the Kashmir issue to the United Nations (UN) in 1948 as the two countries agreed to a ceasefire on the 1st of January 1949. Many resolutions have been passed under UNSC on the Kashmir dispute namely resolutions 39, 47, and 91. These resolutions cannot be termed as recommendatory only as during this time, the practice was not to mention the title of the chapter under which the resolution was passed. The content and substance of the resolution would determine the nature of implementation. The resolutions of UNSC passed in respect of the Kashmir dispute belong to this era of UNSC practice. In resolution 39, a UN Commission for India and Pakistan (UNCIP) was established and authorised to investigate the dispute of the fact’s submitter for a resolution to the UNSC. This step clarifies that the resolutions were not of a recommendatory character. In Resolution 47, the mandate of UNCIP was extended and additional powers were conferred on it. A clear and elaborate programme was laid down for the activities of the commission. The resolution also addresses the governments of India and Pakistan and directs progressive demilitarisation. It also called for the establishment of a provisional government.

This resolution led to the Cease-Fire Line Agreement (Karachi Agreement 1949). Later developments confirm that the resolutions were binding in nature and were operationalised in a manner that could only be imputed to binding resolutions. Another way of confirming their mandatory nature is to view these resolutions as decisions of the UNSC. The relevant portions of the said resolutions were binding on India and Pakistan under Article 25 of the UN Charter which provides as follows, “The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. In a broadcast to the Indian nation on November 2, 1947, independent India’s first Prime Minister, Pandit Jawaharlal Nehru, said, “Let me make it clear that it has been our policy all along that where there is a dispute about the accession of a State to either Dominion, the decision must be made by the people of the State. It was in accordance with this policy that we added a proviso to the Instrument of Accession of Kashmir. We have declared that the fate of Kashmir ultimately has to be decided by the people. That pledge we have given, and the Maharaja (Maharaja Hari Singh) has supported it, not only to the people of Kashmir but to the world. We will not, and cannot, back out of it.” – (White Paper on Jammu and Kashmir, p. 45)

Recent Developments in Kashmir

India continues to assert its sovereignty over the entire region of Kashmir whilst Pakistan maintains that it is a disputed territory. The status quo cannot be considered a solution and Pakistan insists on a UN-sponsored plebiscite.  India revoked Article 370 in August 2019 through a Presidential decree, clarifying its stance to the Kashmir issue as colonization. The article was enacted in 1949 on the basis of relations between India and the disputed state of Kashmir. Under the article, India could exercise powers in four matters: finance, defence, communication, and foreign policy. It also allowed Kashmir a separate flag and authority to make and enact different laws-related to property and citizenship for the Kashmiri people. Another article, Article 35-A, was introduced through a presidential order in 1954 and forbade outsiders to settle, buy land, hold local government jobs, or win an educational scholarship, or marry in Kashmir. Often referred to as the Permanent residential law, it was first put in place by Maharaja Hari Singh in 1927 to bring demographic changes in Kashmir to a halt and leave ‘Kashmir for Kashmiris. Revocation of these articles has reignited the issue on the International media as several protests in Kashmir have led to gross human rights violations being carried out in the name of upholding security and peace. Pakistan is persistently making efforts to highlight the plight of the Kashmiri people and call the world to realise the right of self-determination for the Kashmiri people.

A Ray of Hope

Pakistan should approach the UN with absolute confidence that it remains the responsibility of the UNSC to implement its binding resolutions. Whether Pakistan has the political clout to have the resolutions enforced remains another matter, but from a legal point of view, Pakistan’s policymakers should be clear among themselves that the UNSC resolutions on the Kashmir dispute should not be de-emphasised on the grounds that they are simply recommendatory. Calling on the world to realise this will remain the key focus of Pakistani efforts to solve the Kashmir dispute. Pakistan’s commitment to the Kashmiri people is unwavering in its strength as Kashmir is not only the jugular vein of Pakistan but also the hope and plight of millions of Muslims residing in the valley as they look to their brothers for support and strength. 

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IMARAT Institute of Policy Studies

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