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Kashmir issue, International Law and Conflict Resolution

Kashmir issue, International Law and Conflict Resolution

By: Nayyar N Khan

Historically Kashmiri people were granted the right to citizenship on 20th April 1927 per State Subject Notification No. IL-84, 1927. The credit unquestionably goes to Maha Raja Hari Singh, the then ruler of Jammu Kashmir State. It is interesting to note that Kashmiri people earned the right to citizenship (termed as Kashmiri nationals) 20 years before the end of Britain colonial rule in sub-continent and subsequent emergence of two nation states India and Pakistan (1947). With the announcement of end of colonialism and ensuing withdrawal of Britain from sub-continent amid uncertain circumstances due to the horrific and appalling upshots of WWII. The government of Jammu Kashmir offered a standstill agreement to both India and Pakistan for mutual and respectful co-existence. Pakistan, in practice signed the standstill agreement with Jammu Kashmir State, while India on other hand did not follow the same suit. There had been an indigenous movement by Kashmiri people for their basic democratic and political rights since the third decade of 20th century and before the materialization of the design of division of sub-continent on the basis of so called two NATIONS THEORY. So historically people’s movement in Kashmir for political and democratic rights in Jammu Kashmir and division of sub-continent are two entirely different chapters of political history of the region, though have been propagated to create a linkage by some factions and particularly the later by ruling class of the region. With the withdrawal of British colonialism from sub-continent and its division on religious grounds accompanied by politically charged environment of sub-continent, the demands of people in Jammu Kashmir got momentum and they enhanced their indigenous movement for political, democratic and economic rights. The element of violence from both sides (State and agitating masses) resulted in the mayhem and bloodshed.

Pakistani State officials took the advantage of uncertain conditions of Jammu Kashmir (1947) and very deceitfully entered the mercenaries to fight the non-Muslim ruler of Jammu Kashmir, thus violating the provisions of standstill agreement at one hand and sabotaging the indigenous political and democratic movement of the people on other hand. Maha Raja Hari Singh found himself of losing control on the situation and decided to ask for military help from India to fight an invasion from Pakistani side. In a letter dated October 26th 1947 addressed to Lord Mountbatten (the then Governor General of India) Maharaja Hari Singh clearly stated that he wanted Jammu Kashmir to be an Independent state by having friendly relations with both India and Pakistan. But the Dominion of India very cleverly took the advantage of his weak position and put forward the conditions to accede India, if he wanted the military assistance. Thus on 27th of October 1947, the indigenous movement of people for basic democratic and political rights ended into war between India and Pakistan for the ownership and proprietorship of entire Jammu Kashmir. The horrendous and atrocious incidents of war between India and Pakistan (1947) left no stone unturned in the brutal victimization of people of Jammu Kashmir from either side. After a United Nations Security Council Resolution (1948), a ceasefire line was drawn thus dividing the State of Jammu Kashmir under Pakistani and Indian administered parts. Later on, same year United Nations Commission for India and Pakistan (UNCIP) announced certain procedure to ask for the final will of people of Jammu Kashmir through a free and fair mechanism of plebiscite to determine the future of Jammu Kashmir State. Both India and Pakistan, in practice, agreed to pull out their armed forces as per requirement of UNCIP resolutions. But with the passage of time the above promises and pledges instead of being honored trailed off somewhere in the twofold lingo of diplomatic officials (Indian, Pakistani and UN Officials).

The ferocious dispute over Jammu Kashmir has continued for more than six decades, resulting in countless deaths, loss of properties and honor and with people in Jammu Kashmir facing the daily life of military occupation and ongoing militia operations. While the hostility decreased in Indian administered Jammu Kashmir recent years since the beginnings of a peace process in 2004, it had flared up again in the summer of 2009 and the region remains highly wobbly and volatile. The profoundly entrenched views each side hold; the involvement of different domestic and international groups and governments; the fragility of political, economic and social stability in all the countries concerned and the larger conflict surrounding water resources and land, limits the possibilities of reconciliation, making this one of the longest-running intractable conflicts in the world. The unresolved political conflict of Jammu Kashmir is posing a continuous threat to the peace, security and stability of entire South Asian region. South Asia is a turbulent, complex region with a prominent place in the global map of ethnic conflict. It is characterized by multi-ethnic societies with striking internal divisions along linguistic, regional, communal and sectarian lines, externally linked to one another across national boundaries. Even though it has a common cultural background and shared political experience, many groups have been fiercely fighting with each other, challenging the national governments and frustrating their nation-building efforts. All these conflicts and violence are occurring in South Asia despite the fact that the Gandhian principles of non-violence originate from this region, teachings and preaching of suffis, sadhos and saints based on communal harmony and world’s largest democracy, India, has a central place in South Asia. Then, what is the missing link to achieve peace in this most volatile region, despite interest from all sides and the long-term engagement from the international community?

The struggle over Kashmir is enduringly rooted in national identity, religion, and human rights. It has also influenced the politicization of Pakistan’s army, religious radicalism in both the countries, and nuclearization in both countries. Both India and Pakistan have gone to war thrice since 1947, but military escapades have yielded no solution to Kashmir dispute. After having repeated adventures from either side, it is time to come to the rational conclusion that it is a political subject and be resolved peacefully by political means. Although geographic and tactical location at the crossroads of South and Central Asia, Jammu Kashmir becomes more imperative strategic asset for the political might of India and Pakistan, therefore, both of them wanted to go to any extent to grasp and own the whole state of Jammu Kashmir. But at the same time Jammu Kashmir dispute is very truly embedded in basic human, political, cultural and economic rights of the Kashmiri people living across the LOC. It, therefore, becomes a principal subject of International relations and international human rights law. International institutions and key player states in international affairs are thus bound to take some positive measures to solve this long standing issue in accordance with the norms and principles of international law.

The norms and principles of international conventions and covenants are indisputably universal in nature and Kashmiri people have the very rights to question the violation of these rights in their own country. Although, nation states have a big say in the present day world political system, but International community should not give India and Pakistan a free hand to curb and violate the basic political, cultural and social rights of Kashmiri people just because they do not belong to any nation state. These principles apply to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, color and so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.”

Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others. It is the primary obligation of State parties and signatories to the Universal Declaration of Human Rights (UDHR 1948), International Covenant on Civil and Political Rights (ICCPR 1966) and International Covenant on Social, Economic and Cultural Rights, and afterwards addendum and protocols to these Covenants and Conventions to protect and safeguard these rights of their subjects. Subjects include both the core nation and her peripheries by virtue of International Human Rights Law. Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible. As the State of Jammu Kashmir is not a part of any core nation, however, it is the mutual responsibility of both India and Pakistan (being parties and signatories to the above mentioned Covenants and protocols) to respect the basic human rights of Kashmiri people under three administrative set ups (Gligit, Srinagar and Muzaffarabad) because these areas lie under the category of periphery to the core nations (till the final mature decision).

International community is focusing only on one dimension of the Jammu Kashmir conflict and they analyze and look at it through the prism and lenses of Indian and Pakistani claims over the ownership of Kashmir as a two-sided issue between two nation states. But there is a real dimension of this conflict and that is Indo-Pak verses Kashmiri people (Title of Kashmiri people verses claims of India and Pakistan). This very dimension deserves the backing and diplomatic support from international community as it is in accordance with the internationally respected and recognized norms and principles of people’s right to live freely and seek justice. Both the countries are exploiting the rich natural resources of Jammu Kashmir. Both are equally responsible for the loss of life, property and honor of people in Jammu Kashmir. Both have backed and corrupted their aides in their respective held parts to serve and act as their proxies to prolong the conflict. These tactics of prolonging the conflict in Jammu Kashmir by both India and Pakistan, has in fact made their own (mutual) international borders safer at the heavy cost of loss of property, life and honor of Kashmiri people.
The ongoing conflict between India and Pakistan over Kashmir should be analyzed as an 'enduring' rivalry, characterized by more than three major armed confrontations, low intensity military conflict, conflict duration of over six decades, and diverse efforts to manage the various phases of their overarching conflict. Indeed, the Indo-Pakistan relationship is one of the longest conflicts of this type

A comprehensive solution comprising a final settlement of the independence claims as well as the Indo-Pakistani rivalry is not likely to be attained in mediation between India and Pakistan due to the sheer convolution of the issues to be resolved, the profound depth of the secessionist aspirations of the Kashmiri people, and the dynamics of conflict resolution which are manifest in 'internal' conflicts in contrast to international ones. Separate but complementary efforts must be made between the Kashmiri insurgents, Pakistan and India. A third party intervention and mediation would certainly be an efficient and evocative tool towards the resolution of the longstanding Jammu Kashmir dispute.

Before a final settlement/accord of row as per aspirations and free will of the people of Jammu Kashmir living under three administrations and divided by Line of control (LOC), there are certain measures to be considered and taken by the international community to help the key stakeholders (Kashmiri people) in the process of Confidence Building measures (CBM’s). Honorable homecoming of Kashmiri Pundits to their native homeland will advance the confidence building process among the different fabrics of Kashmiri society and all the parties to the conflict must take it as the most important step. Divided families across the Line of Control must be given priority to reunite. Although, India and Pakistan agreed to a direct Bus Service between both the divided parts of Jammu Kashmir, and there has been a little comfort towards this end since 2006. But a lot more is needed to be done in this regard. Primarily, both India and Pakistan need to relax the bureaucratic hindrances while issuing travel documents to the divided families and an ease while carrying security checks. The best possible way is to transform the State Subject Document to a form of travel document, so Kashmiri people from either side of LOC could manage to travel easily in the due process. In the next phase this cross LOC travel mechanism should be opened to all the folks so that people- to- people contacts should be enhanced. These people- to- people contacts should be at all levels including, social, cultural, economic and political, so that the main stakeholders could understand each other in the best and ample way. Exchange of music and sports groups will help to create a better understanding. Good governance, political, social and economic development should be encouraged through participatory democracy in all the administrative regions of Jammu Kashmir to create a democratic, political and trustworthy milieu, so that the concluding decision of this longstanding conflict could be made in a more peaceful, diplomatic and mature way. .

(Writer is a US based political analyst, human rights activist and a freelance journalist. His major focus is International Peace and Conflict Resolution. He can be reached at globalpeace2002@hotmail.com)

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