The debate over the territory of Jammu and Kashmir has strained relations between India and Pakistan for more than sixty years. The continued hostility between these two countries over the territory is a real threat to peace and security in the South Asian region and even further afield. The debate has already resulted in several wars with heavy loss of human life. 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.
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 scam? If they are not, why do we not see these values practically applied in this very instance?
When India was preparing for independence its 562 princely states, of which Jammu and Kashmir was one of the foremost, were granted the option of acceding to either India or Pakistan. For most, geographic and religious considerations made the choice simple. However, the Maharajah of Kashmir was initially undecided. He was himself a Hindu like most inhabitants of Jammu, but overall in Jammu and Kashmir seventy-seven per cent of the population was Muslim. A small Pakistani invasion of Kashmir was sufficient for the Maharajah to make a decision, and on 26 October 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 cease-fire 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 21 April 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.
A resolution by the UN Commission for India and Pakistan called for the withdrawal of Indian and Pakistani forces and for a fair and free plebiscite to determine Jammu and Kashmir’s accession. Mr Nehru, the Indian Prime Minister, accepted in principle, but no plebiscite materialised. 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 the Karachi Agreement between India and Pakistan established a revised cease-fire line. Consequently, on 30 March 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. So what should be done to this forgotten historic conflict?
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 effect self-determination, and a plebiscite would be the appropriate means of solving the Kashmir dispute.
International legal instruments already guarantee the Kashmiri people’s entitlement to self-determination as an inherent and fundamental human right. 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. 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 needed.
If the Kashmiri people’s right to self-determination continues to be ignored, the international consequences could be very severe. 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. 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. An all-round political commitment is needed in order to ensure a free and fair plebiscite with a consequent withdrawal of both Indian and Pakistani forces.
The Kashmiris have a morally and legally justified right to self-determination. Failure to grant that right will be to ensure the continued existence of a flashpoint in a nuclear-armed subcontinent. India will undoubtedly find it very difficult to give up its claim to Jammu and Kashmir, but it must do so first. Genuine negotiation, backed by international pressure, is essential to achieve a final settlement. The Kashmiris have now suffered Indian occupation for almost sixty years during which time the occupation forces have been known to commit human rights atrocities comparable with more renowned trouble spots around the world. It is urgent, therefore, that the world community assists in producing a long-awaited solution to the Kashmir problem that can bring peace to this war-torn people.
Dr Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Prominent Columnist, Researcher in International Human Rights Law and a Human Rights and Constitutional Law Lawyer in the Supreme Court and Subordinate Court of Nepal. Email: [email protected]