Facts, not principles

Kashmir is burning and as a consequence Pakistan’s relations with its eastern neighbour have touched the low water mark – for the umpteenth time. A solution to the problem is not in sight.

Down memory lane. The seeds of the Kashmir problem were contained in the Indian Independence Act 1947 – the document under which India was granted freedom as well as partitioned. The princely states, which had been under the British suzerainty, were given the choice to either accede to Pakistan or India or proclaim independence.

The act, however, didn’t specify the manner in which the option was to be exercised – that is, whether popular will or that of the prince would prevail. In the case of Jammu and Kashmir (J&K), a strategically located and predominantly Muslim state ruled by a Hindu prince, that turned out to be a dreadful omission.

When the maharaja signed the instrument of the state’s accession to India (in October 1947), the validity of the document was challenged by Pakistan on the ground that he wasn’t authorised to do so on his own and that the decision should have been left to the popular will. India, too, made the accession conditional upon subsequent confirmation by the people.

Again, it wasn’t made clear how popular will would be ascertained: directly through a popular vote or indirectly through the legislature. Hence, when in 1955, the J&K Constituent Assembly ratified the instrument of accession, Pakistan objected that the assembly didn’t have the mandate to do so. India, however, insisted that the ratification was valid.

Earlier, it was India that took Kashmir to the UN under Articles 34 and 35 of its charter; and it did so with a view to getting the part of the territory held by Pakistan vacated. The United Nations Security Council in a series of resolutions held that Kashmir’s accession to Pakistan and India would be resolved through a popular vote or plebiscite. In the words of the UNSC resolution dated April 21, 1948, “both India and Pakistan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite.”

In a word, the resolutions said that the state’s accession to India was far from being a past and closed transaction – a rebuff to New Delhi’s stance on the issue. That is why Pakistan has consistently called for implementation of the UNSC’s Kashmir resolutions.

That said, a sequence of steps were supposed to be taken by both Pakistan and India as a prelude to holding a plebiscite. At the top of the envisaged actions was demilitarisation of the territory, which was never done. The Indian stance was that Pakistan should withdraw first, as stipulated by the April 21, 1948 resolution. Pakistan, however, wanted the guarantee that the pull-out of its troops would be followed by that of India’s.

Ostensibly, Pakistan doubted that the world body would be able to secure the withdrawal of Indian forces. It seems that, for its part, the UNSC was also not much interested in getting its resolutions executed. 

As early as the mid-1950s, India backpedalled on the plebiscite, putting forward two reasons in the main: One, J&K’s Constituent Assembly had ratified the state’s accession to New Delhi (which, it argued, was a manifestation of popular consent). Two, Pakistan’s defence alliance with the US upset the military balance in the region making it necessary for India not to demilitarise Kashmir.

In 1957, India declared Kashmir to be its constituent and irrevocable part, meaning that the issue was no longer open to multilateral discussion. Since then the country has stuck to this stance.

The 1972 Simla Agreement with Islamabad, which provides that the two countries would “settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them” strengthened New Delhi’s position that the Kashmir problem ought to be settled only through bilateral means and that the UN resolutions have lost their relevance.

Pakistan counters Indian contention by referring to Article 103 of the UN Charter, which states: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

One can go on debating whether UN resolutions are still relevant to the Kashmir issue. Yet it’s hard to dispute that facts more than principles, and power more than law, is what settles issues between nations. As Thomas Hobbes once remarked, covenants without the power to enforce them are but words.

Even a glance at the relative strengths of Pakistan and India is enough to confirm that the latter is far ahead of the former: one is a stable polity and a rising economic power promising tremendous opportunities for investment and job generation; the other is marred by endemic political instability and a fragile economy. The one is wooed by the world at large; the other is suspected by friends and foes alike. The only parity is that both are nuclear powers.

Not surprisingly, New Delhi’s opinion on a matter of international importance such as Kashmir carries far more weight across the globe than that of Islamabad. This will continue to be the case until Pakistan catches up with India on matters of various elements of national power. Such practices as sending envoys to different countries to talk about the Kashmir cause will not be of much use.

As for the UN, its will to address any issue is as strong or weak as that of the permanent members (P5) of the Security Council, and they have not been forthcoming in having the Kashmir plebiscite staged.

Even China, one of the P5 and a long-time staunch supporter of Pakistan’s Kashmir position, has shifted its stance and favours a bilateral settlement of the problem. So at present the fate of the world body’s resolutions on Kashmir seems sealed.

New Delhi thinks it is capable of putting down the current wave of unrest in the state, as it has done in the past. What must be noted is that it will not be principles of international law or any democratic values that will eventually force India to take to dialogue with Pakistan. The only thing that will do it is the realisation that the situation in the restive state has gotten out of control.

Email: hussainhzaidi@gmail.com