India and the Kashmir dispute

COMMENTARY / INSIGHT

India and the Kashmir dispute
India’s position on Kashmir is contrary to international agreements as well as to the position held by the UN

Muhammad Abdul QadeerMuhammad Abdul Qadeer

MAY 16, 2018

During a recent interview to The Indian Express, Indian Army Chief, General Bipin Rawat sent out a message to Kashmiri youth that “Azaadi isn’t possible. It won’t happen.” He warned that India would fight those with ‘full force’ who seek ‘Azaadi’.

His comments follow a new round of clashes between Kashmiris and Indian Security Forces in which at least five civilians and five fighters were killed in Indian Occupied Kashmir (IOK). The killings have triggered strong protests in the valley after thousands took to the streets and hurled stones at the Indian Security Forces, demanding the withdrawal of Indian troops from the state. The situation highlights worsening situation in IOK.

Meanwhile, Pakistan calls upon the United Nations to play its role to stop the killings of Kashmiris and in enforcing their right to self-determination. Pakistan demands the implementation of UN resolutions on Kashmir which declares the status of Jammu and Kashmir (J&K) as ‘disputed’ and call for a ‘free and impartial plebiscite’ as the final solution. Ironically, these resolutions had been accepted by both India and Pakistan.

However, if we look back into history, the Indian leadership was convinced during the 1950s that a plebiscite in Jammu and Kashmir was not in India’s favour. Not only did they renounce the plebiscite, but they also started calling Kashmir an ‘integral part’ of India. In 1954, the Constituent Assembly of Jammu and Kashmir ratified Maharaja Hari Singh’s accession to India terming it ‘final’ and ‘irrevocable’. Three years later, in 1957, the Constituent Assembly approved its own constitution in an effort to legitimise the accession. The United Nations Security Council rejected this ratification calling it illegitimate through its resolution 1951 thereby reaffirming ‘plebiscite’ as the only solution where Kashmiris could decide whether to join India or Pakistan.

In 1972, a year after the Bangladesh war, India and Pakistan, in an effort to resolve their differences, signed the Simla Agreement. Under the agreement, both sides pledged that until ‘the final settlement of any of the problems between the two countries… neither side shall unilaterally alter the situation,’ and also called for a final settlement of the Kashmir dispute. This time both sides resolved to settle their differences through direct negotiation.

Since then, India continues to emphasise that the Simla Agreement binds both countries to settle their differences bilaterally and rejects third-party mediation or UN involvement in the Kashmir dispute. It maintains that the Simla Agreement prevents Pakistan from doing so.

However, at the same time, Delhi also argues that Kashmir is an ‘integral’ and ‘non-negotiable’ part of India. It insists that by voting in successive state elections, the Kashmiris have confirmed their accession to India.However, India’s position is contrary to the international agreement as well as to the position held by the UN which through its several resolutions has declared that the question of accession of Kashmir to India or Pakistan would be decided through “plebiscite”.

With regards to a plebiscite in J&K, the government of India has long maintained that Pakistan did not fulfil the required preconditions. It maintains that plebiscite was “conditional upon Pakistan fulfilling parts (I) & (II) of the United Nation’s resolution of 13 August 1948, which required Pakistan to withdraw its troops and to secure the withdrawal of both tribesmen and Pakistani nationals and that India would withdraw the bulk of its forces once the UN Commission confirms that the tribesmen and Pakistani nationals and Pakistani troops are being withdrawn.”

The government of India believes that Pakistan never fulfilled these commitments and argues that because Pakistan did not withdraw its troops from the state, normal conditions under which a plebiscite could be held were never created. India maintains that due to Pakistan’s refusal to accept the preconditions, its offer for plebiscite ‘lapsed’ and was ‘overtaken by events’.

Although the UN’s involvement would require the consent of both India and Pakistan, it is necessary to recall that no bilateral agreement, including the Simla Agreement, can supersede a UN agreement

However, the Indian argument is contrary to the real principles of a plebiscite as determined by the United Nations 13 August 1948 resolution. The resolution suggested that once Pakistan would begin to withdraw its forces from Kashmir, the UN Commission would secure an agreement with India on the stages of withdrawal of the bulk of Indian forces.

Once this agreement would be reached between the UN Commission and India, Pakistan would then withdraw all its remaining forces from Kashmir. It is important to mention here that the UN resolution of 13 August 1948 had never called for the simultaneous withdrawals of all the Pakistani forces and the bulk of the Indian forces from Kashmir. The UN Commission had assured Pakistan that once it would ‘begin’ to withdraw its forces from Kashmir, there would be a relation between further withdrawals of all the Pakistani forces and the beginning of withdrawals of the bulk of the Indian forces from Kashmir.

In March 2015, the UN declassified an important UN Mediatory report on Kashmir. The report was submitted to UN Secretary General, U Thant in October 1967 by a UN mediator in Kashmir, Dr Frank P Graham. He noted in this UN Mediatory report that Pakistan had started to withdraw its forces from Kashmir. However, it did not withdraw its remaining forces from Kashmir because the UN Commission remained unsuccessful in reaching an agreement with India on required withdrawal of the bulk of its forces. This failure of the UN Commission and successive UN mediators to reach such an agreement with India became the main ground for the deadlock in the demilitarisation and ultimately the reason for Pakistan to not withdraw all of its forces from Kashmir.

The report also noted that Pakistan accepted and India rejected most of the basic proposals of the several UN mediators for resolving the deadlock in demilitarisation.

During the initial years of the conflict, India stood firm on the UN resolutions and rejected other bids for resolving the dispute. However, it later refused to fulfil the obligations of these very resolutions insisting that Pakistan had not fulfilled the preconditions prescribed in the 13 August 1948 resolution.

Then in the late 1990s, India began equating the Kashmiri resistance with terrorism and started accusing Pakistan of “supporting militants” fighting in IOK. This rhetoric gained further credence after the 9/11 terrorist attacks in the US by suspected affiliates of Osama bin Laden which led to the creation of a US-led international coalition to fight the global war on terrorism. In the wake of these developments, India was able to capitalise on the war on terrorism by portraying the fighting in Kashmir as Pakistani inspired terrorist activity. Thus, India was successful in maintaining the status quo in the Kashmir dispute as no progress could be made between the two countries in this regard. In the last two decades, India’s position remains consistent that Kashmir is an issue of terrorism.

There are now bleak chances that direct negotiations between India and Pakistan would produce any results. Expressing its readiness for bilateral discussions on the Kashmir situation and considering Kashmir a “non-negotiable and integral” part of India or maintaining that Kashmir is just an issue of terrorism defeats the very purpose of the discussion between India and Pakistan. Moreover,unilateral declarations by India that Kashmir is its ‘integral’ part is a ‘material breach’ of the Simla agreement.

According to the Article 60 of the 1969 Vienna Convention on the Law of Treaties, in case of a ‘material breach’ of a bilateral treaty by one of the parties, the other is ‘entitled to invoke the breach as a ground for terminating the treaty.’ A ‘material breach’ of a treaty occurs when there is a violation of a provision essential to the accomplishment of the purpose of a treaty.

In a hypothetical case, if at any stage Pakistan decides to withdraw from Simla agreement by invoking Article 60 and goes back to the UN where it all began, India would not be in a strong position to blame Pakistan for contractual infidelity as it has defaulted on its obligations on Kashmir.

Although the UN involvement would require the consent of both parties, it is necessary to recall here that no bilateral agreement such as Simla agreement can supersede UN agreement. UN resolutions on Kashmir are not only bilateral agreements but are also international agreements. Therefore, the UN remains obliged to fulfil its own resolutions for the holding of a plebiscite, particularly because direct negotiations have yielded no result.

The writer is a researcher currently working at the Strategic Studies Institute, Islamabad (SSII); Email:inbox.qadeer@gmail.com

Published in Daily Times, May 16th 2018.