PTI, China and Articles of Settlement on Kashmir

Daily Times

OP-ED

PTI, China and Articles of Settlement on Kashmir

The new government will be faced with its first challenge at the 73rd UNGA session. It should prepare itself in accordance with the existing UN jurisprudence on Kashmir

Dr Syed Nazir Gilani

AUGUST 29, 2018

Governance in Pakistan has finally broken away from two families which have dominated the political sphere since the 1990s.Those of us who have seen, known or remember Zulfikar Ali Bhutto, Nusrat Bhutto and Benazir Bhutto would hesitate before we accept Bilawal Bhutto as our new leader.

Like Rahul Gandhi, Bilawal Bhutto has to learn from first-hand political experience. He is faced with a dissatisfied electorate that does not seem to be convinced of his ability to lead at this point. And with Maryam Nawaz in jail, it seems it will be some time before the political status quo’s new generation is able to rise to the top. Furthermore, if the new government delivers, Bilawal and Maryam will have to be silent spectators for a very long time.

Of course, in developed democracies there is no concept of politicians’ children taking over after their parents careers are over. The children or family members of Clement Attlee, Winston Churchill, Margaret Thatcher, John Major, Tony Blair, David Cameron and of others in the United Kingdom did not stake any claims to premiership. In Pakistan however, politics revolve around cult psychology, and political parties are treated as personal inheritance.

However, the leadership of the Pakistan Tehreek-e-Insaf (PTI) has successfully convinced the people of Pakistan to use their vote to usher in an era of change. As such, Prime Minister (PM), Imran Khan and his cabinet find themselves faced with numerous challenges.

One of the main challenges is the Kashmir dispute. Despite how crucial this matter is to the future wellbeing of our country, our political governments have mishandled Kashmir at numerous points throughout history. Now Human Rights Minister Shireen Mazari has prepared a conflict resolution paper on Kashmir. This may be one more mistake.

China has continued to support Kashmiris’ right to self-determination ever since it presided over the 269th Meeting of the UNSC on March 18, 1948 and submitted the Articles of Settlement on the Kashmir case. In 2009, China issued a visa to Kashmiri students on a separate paper, ignoring their Indian passports

The Kashmir problem in brief, is all about ‘equality of peoples’ and ‘self-determination’. Kashmiris have the right to self-determination, and India and Pakistan have their respective disputed claims. Another important factor is that the Indian and Pakistani governments have failed to articulate the manner in which the UN describes the Kashmir case and the will of the Kashmiri people.

The UN regards Kashmir as “one of the greatest and gravest issues in international affairs”. It has identified the Kashmir case based on, “rights and dignity”, and “security and self-determination”. At this point, Kashmir cannot accede to India. The provisional accession of October 27, 1947 was surrendered by India at the UN Security Council on January 15, 1948 for a UN supervised vote.

According to Pakistani proposals, a plebiscite should have taken place from March to July 1948 and according to British proposals, from April to October 1948. There is no dispute on the right of self-determination. Rather, the disagreement is about the procedure and process of holding a referendum.

The new government will be faced with its first challenge at the 73rd session of the UN General Assembly. It should prepare itself in accordance with the existing UN jurisprudence on Kashmir. For example, it should have a reliable understanding of the case and make a reference to Document III, which was submitted on January 15, 1948 “containing a statement of the particulars of Pakistan’s case with reference to both the matters dealt with in Documents I and II.” Pakistan has admitted that the “two Dominions have tried to seek a solution by the methods described in article 33 of the Charter”, but have failed. The bilateral engagement has continued and has failed. It is time that UN reorients its ownership of the case under article 103 of the Charter.

Britain and America may not be as forthcoming and enthusiastic as they were in taking the Kashmir case to ICJ in November 1947 and August 1951. However, there are other countries who have remained robustly involved in the debate on the Kashmir situation (later named the India-Pakistan Question). There is an urgent need to revisit the interests and obligation of these countries.

Argentina, China, France and Netherlands have played a crucial role during these debates. France has maintained that “once the Kashmir dispute has been settled, the solution of other outstanding questions between India and Pakistan will be greatly eased”. Netherlands has said that, “The lack of agreement therefore, does not concern this right of self-determination. It concerns the ways and means and procedures to establish conditions for a fair expression of the will of the people of the State of Jammu and Kashmir who want to make their choice free from any kind of fear or intimidation”. Over the years, we have ignored the broad spread of this support and this reservoir of support needs to be re-ignited.

The new government has to cultivate support from the permanent members of the UN Security Council (UNSC). China has continued to support Kashmiris’ right to self-determination ever since it presided over the 269th Meeting of the UNSC on March 18, 1948 and submitted the Articles of Settlement on the Kashmir case. In 2009, China issued avisa to Kashmiri students on a separate paper, ignoring their Indian passports.

Chinese Articles of Settlement are based on the principle that, “the Security Council should aim at the maximum agreement possible between the two delegations. There will be a margin of disagreement. So far as that margin is concerned, I hope that in the end the two parties will accept what the sense of fairness of the Security Council recommends.”

It is a comprehensive document of twelve paragraphs and could be updated in view of any development, inequity and other developments in international law. Paragraph eight has specifically addressed the rights of the all the people of the state. Paragraph 10 proposes an “Interim Government of Jammu and Kashmir, with a provision for adequate representation of all major political groups in the state”. It makes the present government in Srinagar non-representative as envisaged in the UNSC Resolution of March 30, 1951 as well.

China has made a serious case for ‘pacification’. There would be many more countries in the future that would in pursuance of their Charter obligations revise their policy on Kashmir and support the right of self-determination.

The writer is President of London based NGO JKCHR, which is in special consultative status with the United Nations. He is an advocate of the Supreme Court and specialises in Peace Keeping, Humanitarian Operations and Election Monitoring Missions

Published in Daily Times, August 29th 2018.