UN mandate and Kashmir self-determination – A Reality Assessment
In a lengthy and passionate article, “Adding new Hurdles to Deteriorating Peace Process” (The Hindu, 31-08-2015, p.11), the Hurriyat Conference (M) chairman, Mirwaiz Umar Farooq, pitches a fervent appeal for making all the Kashmiri activists partners in the peace process as it is the Kashmiri people who, in the first place, bear the brunt of the consequences resulting from the conflict between India and Pakistan. In the same breath, he squarely lays the blame for the failure of the August 23-24 NSA-level talks exclusively at the door steps of India. But in his anxiety to reinforce the appeal being made the learned Mirwaiz overlooks a few historic developments besides betraying his Pakistani predilection.
To begin with, it is an erroneous assumption to think that Hurriyat and/or other Kashmiri organizations should be part and parcel of all the talks held on Kashmir. And the NSA talks 2015 are precisely conceived as a bilateral event with terrorism as its main agenda evidently to sort out issues of terrorism between India and Pakistan. It is not to be seen as a multilateral process nor is it proper to seek to convert it into one such. This is exactly what India wanted to convey to Pakistan. Worse, Pakistan sought to subvert the agenda mutually agreed upon at Ufa by the Prime Ministers of both countries by replacing terrorism with the ‘K-issue’ as its main agenda. In the event, the Ufa agreement lists terrorism as the 1st item of the talks agenda and does not so much make a mention of the ‘K-issue’. This latter can only be brought up as ‘an outstanding issue’ mentioned under the third and last item of the Ufa agreement and not as the main issue. In short, what India was doing all the time is, NOT DRAWING REDLINES, but asking Pakistan to respect the sanctity of talks by conforming to the terms of the joint agreement reached at Ufa. Thus, the failure of talks is to be squarely attributed to the sabotaging action of Pakistan. It is indeed very strange that Mirwaiz has entirely overlooked the Pakistani side of the story!
In so far as ascertaining the “Will of Kashmiri” people, there are certain cobwebs to be cleared. The first one of them, and more often than not the legitimacy claimed for such a demand, is the UN resolution of August 13, 1948. Part-III of that resolution does state “… the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people”. Unfortunately, most of the votaries of Kashmir self-determination retain just this phrase and ignore that it is contingent upon acceptance of the truce agreement. And Part-II A of the Truce Agreement of the same resolution clearly lays down the condition that Pakistan withdraw its troops or such troops that it is supporting/representing from the Kashmir territory followed by, as stated in Part-II B, reduction of Indian troops to the minimum required so as to create conditions for ascertaining the will of Kashmiris, following the modalities evolved tripartitely with the UNCIP. This implies:
i) In the event, Pakistan never withdrew its troops. It pretends as if the territory under its occupation is non-negotiable where as the UN resolution applies only to territories not under its control! – palpable case of perfidy. So the first and foremost task of the separatists or the votaries of self-determination is cut out. If they reclaim their legitimacy from the UN resolution, they should first agitate against Pakistan and force this latter to withdraw its troops from the entire territory of Jammu & Kashmir as delimited during the reign of Raja Hari Singh before the invasion of Pakistani raiders and tribesmen.
ii) The second point is Pakistan has generously ceded parts of its occupied Kashmir territory, when the resolution to the issue is still pending, to China! This needs to be recovered as well and the votaries of Kashmir self determination should pressurize Pakistan to do so. It is only upon thus restoring Kashmir’s territorial integrity in its original contours that the issue of self-determination gets legitimacy. Without doing this spade work, continuing to blame India amounts just confusing the issues and even playing into Pakistani hands.
iii) Notice also that the UN did not see its resolution on India and Pakistan as binding. Otherwise, it would have no difficulty whatsoever in forcing Pakistan, a small, newly formed State, to withdraw its and its allied forces from the Kashmir territory and could have moved into devising modalities of ascertaining Kashmiri will that would have paved the way for resolution of the issue. It thus appears that UN interest in this matter is more formal than substantial. This begs an explanation. In fact, two motives can be attributed to such a ‘half-baked’ action by the UN.
a) It is easy to see that the non-enforced UN resolution maintains the two countries at a state of perpetual conflict, more so if it is also assumed that Pakistan is tipped off in advance as to the position it should take vis-à-vis the UN mandate. The resolution thus stops Pakistani advancement, but does not attempt to recover the territory illegally occupied by it and restore the same to Kashmir, thereby leaving the fountain head of conflict untouched. Such a situation affords, it hardly needs to be emphasized, commercial, economic, diplomatic advantages to powerful countries like the UK and the US besides giving them a measure of control over these emerging and poverty-stricken countries.
b) Secondly, the resolution is basically flawed. In common parlance, it can be said to be bad in law. For, it does not take into account the basic right given to principalities to merge into either of the two newly created dominions of India and Pakistan. That is, the UN resolution treats the Kingdom of Kashmir as if it were a mere territory disputed by the two dominions and not as a Kingdom with definite borders and ruled by a King who has the right and discretion to exercise to join one or the other dominion. In the event, it treats Raja Hari Singh’s Treaty of Accession as if it were a piece of scrap paper! This is fully untenable as it is not keeping with the principle of accession constitutive of partition modalities.
Raja Hari Singh
Now, enforcing the mandate would inevitably mean reopening the entire issue and facing up to the charges of fudging at the highest international level. This would mean not just losing the commercial and economic benefits but also loss of image both for the world body and its strategists.
Given this state of affairs wherein both UN resolution as well as Pakistani position turns Kashmir territory into a battle ground by completely ignoring Kashmiris as a people, the task of genuine and committed Kashmiri is cut out. They should ponder over the following points:
a. Finding, in the first place, Kashmir’s territorial integrity. The best chance they have for realizing this is only by enlisting Indian participation.
b. Decide what respect to accord to the Treaty of Accession signed by their own ruler to save the kingdom from the alien onslaught. They should understand that some 350 such principalities acceded to India and living satisfied with their Indian identity. Moreover, such an accession is legally and constitutionally binding. But the people of the state always have a choice to go the way the Khalistan movement has gone in the neighboring state of Punjab. Indeed, it is under such circumstances that the Hurriyat or other votaries of Kashmir self-determination need to come face to face with the government of India.
c. Consider if an independent Kashmir is a viable proposition at all, not in economic terms, but in militarist and security terms. Given the strategic location of the state of Kashmir, an independent Kashmir is always exposed to the risks that it was subject to in 1947-48 when Pakistan wanted to overrun this state. Or the other alternative would be to live like a client-state under the umbrella of powerful countries like China and USA. And, it is not unthinkable that China may, in the course of time, be tempted to turn an “independent Kashmir” into another Tibet.
d. Of course, Kashmiri self-determination could also mean merging with Pakistan. But it requires swallowing Kashmiri national pride to prostrate before an aggressor whose actions are primarily responsible for 67 years (and continuing) of bleeding and lack of peace. Not to forget is the way Pakistan treats its own people as exemplified by the Bangladesh episode.
It may not be out of place to remind here that India could easily have liberated Kashmir if it has exercised its military option to the full extent. This could have been done in the 1947-48 itself and again, manifestly, in 1971. The reason why Pundit Nehru sought UN intervention in 1948, following Kashmir King’s appeal for help, is that India needed to enter Pakistani territory to drive away the tribesmen armed and encouraged by Pakistan to attack Kashmir territories. This he could have done without appealing to the UN. Yet, given the devastating suffering entailed by partition and the consequent bad blood that flew between the Hindu and Muslim communities, Nehru probably thought it wise not to provide another pretext to Pakistan’s propaganda machinery to present Indian endeavor to liberate Kashmir as a defiant Hindu attack on Muslim community and thereby further vitiate relations between the two communities. This should give a measure of sensitivity and concern that India has for Muslims. Thus, it is not without reason that Muslims in a number equal to Pakistan population chose to remain in India.
The 1971 case is too obvious to require any elaborate explanation. Indian troops marched almost up to Rawalpindi, held thousands of Pakistani prisoners of war and held also vast sectors of land in their hand. It could have easily imposed a bargain vis-à-vis Pakistan occupied areas of Kashmir. Still it refrained from doing so testifying to the world that it fought a war in self-defense, not to alter the equation between itself and Pakistan by force, notwithstanding the help it rendered to the beleaguered East Pakistan. Religiously inclined Kashmiri activists of Self-Determination should note this.
It is therefore necessary that those proud Kashmiris that seek self-determination for their state understand that this is not the right moment for such demands. The genesis of Kashmir has been that first it is necessary to secure Kashmir’s status and its territorial integrity. And this can only result from the Indo-Pak engagement, be it through talks or military means. To that extent the issue would remain a bilateral issue. Only then comes up issues like Kashmir’s stand vis-à-vis their ruler’s decision to accede to India versus self-determination wherein Kashmir representatives get prominent and irrevocable role to play.
Finally, there is no reason to believe that Kashmiri pride or Kashmiriat would in any way lose its grandeur by being part of India for after all by History and Culture Kashmir has always been part and parcel of Indian ethos.
By Dr. Codadu Pratap