Policy imperatives on Kashmir

October 30,2016

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The recent uprising in Indian-Held Kashmir did stimulate an assertive response in Pakistan on Kashmir but it is largely based on political and diplomatic activism and not on the sound legal bedrock policy that Pakistan enjoys in the case of Kashmir. Given this void, some key policy imperatives are suggested here — largely based on the proceedings of a roundtable discussion recently held at the Institute of Policy Studies in Islamabad in which this scribe was also among the panelists.

At present, Pakistan’s response on Kashmir is largely based on political and diplomatic activism which needs to be transformed into a narrative strategically packaged with politico-diplomatic activism, coupled with sound legal underpinnings of the case. Since Pakistan enjoys genuine locus standi on the case and has always remained on the vantage point, it could effectively capitalise on the historo-legal position on the issue to impress upon the world community to play its role to resolve the dispute.

The indigenous, political and peaceful character of the recent mass uprising in IHK provides sound legal bedrock basis to project the case of Kashmiris’ right to self determination before the world community. Pakistan needs to capitalise on this important dimension.

In the current scenario India may attempt to sabotage the indigenous nature of the uprising. Such moves need to be preempted. The incident of Isis-flag raising in a procession may be an attempt to play with the sensitivities of the West.

In addition to issuing statements calling for UN mediation, Pakistan may consider specifically writing a series of letters to the Office of the UN Secretary General, referring Articles 99 and 100 of UN Charter, and bring the attention of the office to the situation in IHK.

Letters can also be written to all 15 members of the UNSC to play their role and avert the situation. On legal grounds, the concerned members may be sensitised that failing to do so is non-compliance of UNSC Resolution 1373 and UN Resolution 1267.

The lawfare moves by India to dilute Pakistan’s legal standing on the issue need to be recognised and responded to. India is persistently trying to distort the self-determination struggle, accusing the Kashmiris of terrorism and dubbing freedom-fighters as terrorists in terms of the UN resolutions. By such moves India tries to project before the world that the genuineness of the Kashmiris’ struggle has lost its shine and the presence of the Indian Army in Kashmir and the use of force against civilians is legitimate as they have associations with proscribed non-state actors, referred to in UNSC resolution 1373.

A legal team on Kashmir is the need of the hour to project the Kashmir cause afresh across the world and make jurisprudential efforts to sensitive the world community. It needs to be remembered that the legal space Pakistan acquired in the early years on this issue was due to the strong legal narrative presented by the then leadership of Pakistan.

There is a paucity of scholarly legal literature on the Kashmir conflict which needs to be filled up with consolidated academic efforts by Kashmiri scholars, the AJK government and the government of Pakistan. Chairs on Kashmir Studies in renowned universities around the world can be established.

Pakistan’s response to change the demography of Kashmir and reduce the state’s Muslim majority is fact based. However, Pakistan has other more sound legal grounds to thwart India’s bid to change the demographic character of the state: According to international law, the presence of the Indian Army in IHK comes under the purview of Occupying Framework. The fourth Geneva Convention says when an occupying army holds the possession of a territory; it has to administer itself in accordance with certain parameters. One of those significant parameters is not to bring demographic change and not to allow third party, outsiders, to buy land from the natives. Even Article 35-A of the Indian constitution discourages buying land inside Jammu and Kashmir. According to Article 370 of the Indian constitution Indian citizens can neither become state subjects nor buy land in IHK. Moreover, the recent landmark judgement by the Srinagar High Court is also super significant; the court ruled that Article 370 was beyond any amendment whatsoever.

Pakistan enjoys sound legal ground in terms of the principle of self-determination vis-a-vis the Kashmir dispute. Self-determination is usually associated with people living in their own territory and occupied by an extraneous power. The struggle for the right of self-determination cannot succeed without territorial disputes. In Kashmir, (just as in Palestine), we have this unique combination. Pakistan needs to strengthen this debate.

Indian atrocities in IHK are not mere human rights violations; they go against the norms and standard practices of international humanitarian law. Human rights do not apply in conflict but humanitarian law does. So the Ministry of Foreign Affairs must take a firm stand that there are human rights violations as well as violations of international humanitarian law.

Pakistan can contest India’s argument regarding Kashmir being a bilateral dispute under Article 103 of the UN Charter which maintains that “in the event of a conflict between the obligations of the members of the UN under the present charts and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

The writer is an academic based in Islamabad.

Email: mawaisbinwasigmail.com


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