What are Pakistan’s options?

What should be Pakistan’s response to the undemocratic steps taken by the Modi government regarding Occupied Kashmir? A balance has to be struck between preserving long-established historical positions which may be in the process of being overtaken by events, and crafting new positions bearing in mind practical ground realities. There are three broad areas that require consideration.

First, the Pakistani response should not focus on questions of legal interpretation of the Indian constitution. Much energy has been spent discussing the subterfuge of the Indian government and defiance of the letter and spirit of the Indian constitution. This is a matter of Indian law and ultimately the Indian Supreme Court will decide whether their government and legislature have acted lawfully under Indian law. From a Pakistan perspective this is irrelevant. Pakistan does not accept that the State of Jammu & Kashmir is a part of India. It does not accept the Instrument of Accession signed by the maharaja. Pakistan proceeds on the assumption that the entire State of Jammu & Kashmir is a disputed territory.

The position has a moral and legal premise. The moral premise is that the fate of Jammu & Kashmir should be decided by its people. The legal premise is that resolutions adopted by the United Nations Security Council confirm that both India and Pakistan have agreed that there will be a plebiscite in Jammu & Kashmir to determine its future. As a matter of international law, Pakistan and India are bound by these resolutions.

The Pakistan government’s decision to move the United Nations Security Council on this matter is sound. The thrust of the submission should be that India’s latest actions constitute a breach of commitments reflected in the Security Council Resolutions by converting a disputed territory with special status to a Union territory governed by Delhi. This will negate commitments enshrined in the UN Resolutions which contemplate a plebiscite of the entire state to enable the indigenous people of the State to determine their future.

Pakistan may also seek relief in the form of a fresh UN Resolution from the Security Council. The fresh resolution may note that India’s recent actions are not consistent with the status of Jammu & Kashmir as a disputed territory which is contemplated by existing resolutions. It may also require both parties to implement the promise of a plebiscite that was made to the people of the state. Given existing geo-political realities, any such new resolution is unlikely to be forthcoming.

If so, Pakistan must face two harsh realities. First, the practical reality that the resolutions of the Security Council on this matter are currently effectively meaningless. Second, the demographic reality that, given the actions by the Indian government, any future plebiscite may not be a true reflection of the will of the indigenous people of the state as contemplated in existing UN Resolutions.

This leads to the second area requiring consideration. Currently, Azad Jammu & Kashmir and Gilgit-Baltistan are administered by Pakistan but are not part of the federation. Until a plebiscite takes place as committed, Pakistan should consider admitting these areas into the federation of Pakistan under Article 1(3) of the constitution. This can be done by an act of parliament. The beauty of Article 1(3) is that an “area” can be admitted to the federation “on such terms and conditions” as parliament thinks fit. Parliament can clarify that admission of the area is subject to a future plebiscite and implementation of the commitments contained in Security Council Resolutions. This preserves the moral and legal premise of Pakistan’s position.

This is also important given that India's position is that these areas are part of the Union Territory of Jammu & Kashmir to be administered by Delhi. As India has removed the special status of Jammu & Kashmir controlled by it, Pakistan should also change the status of the areas controlled by it. This should only be done on the basis of resolutions or legislation of the relevant elected assemblies established for these areas. This will give a democratic foundation to the decision unlike the decision imposed by the central government of India on the State of Jammu and Kashmir. If we can’t give all of the citizens of Jammu & Kashmir a say in their future, at least we can give this right to those citizens in the areas that come under us.

Some may argue that any such step is tantamount to acknowledging the Line of Control (LOC) as the international border and will compromise Pakistan’s historical position on a plebiscite for the entire State of Jammu & Kashmir. The response to this is that the legislation can be drafted in a manner which does not amount to such a concession. Importantly, this will also lend legal support to Pakistan’s position that any crossing of the LOC is a violation of Pakistan’s sovereignty and is the equivalent of the invasion of a sovereign state. Currently, all Pakistan can say if India crosses the LOC up to the borders of the original State of Jammu & Kashmir is that India has entered a disputed territory being administered by Pakistan. Of course, as matter of international law, unilateral state action cannot alter international borders. But de-facto control combined with a claim of legal sovereignty is better than simple de-facto control.

The third area that requires consideration is the status of the Simla Agreement. Arguably, India has breached it through its latest actions by unilaterally altering the status quo in respect of an area subject to a pending dispute. In light of this breach, it may be considered whether this agreement should be formally terminated by Pakistan by notice to India. As a matter of law, an innocent party has an option either to affirm or end any agreement where there is a material breach by the counterparty. The Simla Agreement is very general and has for long been more honoured in the breach than in the observance. It has not assisted in resolution of inter se disputes and has in fact become an obstacle to progress. It is always used by India to insist on bilateralism when it does not want progress on a dispute but has not stopped India from seeking third party involvement or adjudication when it serves its interests.

Our government faces a serious challenge, resolution of which requires courage and innovation. There is little impact of old UN resolutions if the permanent members of the UN Security Council do not stand by them. Ask the Palestinians. Pakistan is not Palestine. It should seize the moment and respond firmly and creatively to the new realities it faces without prejudice to its historical legal and moral case.

Meanwhile, as the nation approaches its 72nd birthday, we should salute and pay homage to an anglicized barrister from Lincoln’s Inn who foresaw the dangers of majoritarian rule and carved out for us a country which we can call our own. He can look down on his moth-eaten nation from above and say, “I told you so”.

The writer is an advocate of the Supreme Court and a barrister at law.

Email: a.hosain@lma-eh.com