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Thursday March 28, 2024

Baseless claims

By Malik Muhammad Ashraf
May 10, 2020

Reacting to the instructions given to the government by the Supreme Court of Pakistan for holding elections in Gilgit-Baltistan under the Election Act of 2017, the Indian ministry of foreign affairs in a statement said that Pakistan or its judiciary had no locus standi on territories illegally and forcibly occupied by it as the entire union territories of Jammu and Kashmir and Ladakh and the areas of Gilgit-Baltistan were an integral part of India by virtue of its fully legal and irrevocable accession.

I think the readers deserve an insight into the history of the Kashmir dispute and the illegality of the Indian claims. It is relevant to point out that in the wake of the war that broke out between the two countries after the landing of Indian forces in Kashmir it was India which took the matter to the United Nations. The UNSC passed a number of resolutions calling for the settling of the issue through plebiscite in Kashmir under the auspices of the United Nations.

Subsequently, Jawaharlal Nehru in his several telegrammes to his Pakistani counterpart kept assuring him that India would fully abide by the UN resolutions. In a report to the All-India Congress Committee on July 6, 1951 he said: “Kashmir is not a thing to be bandied about between India and Pakistan but it has a soul of its own and an individuality of its own. Nothing can be done without the goodwill and consent of the people of Kashmir.”

Making a statement in the Indian parliament on March 31, 1955 he reiterated India’s commitment to plebiscite in these words “We had given our pledge to the people of Kashmir, and subsequently to the United Nations; we stood by it and we stand by it today. Let the people of Kashmir decide.”

When the general council of the All Jammu and Kashmir National Conference passed a resolution on October 27, 1950 to convene a session of the constituent assembly to decide the question of accession of the state, the UN through Resolution 91 repudiated the suggestion and declared unequivocally that the question of accession of the state could not be settled by any means other than a plebiscite held under the auspices of the UN. The legal status of Kashmir being disputed territory and its fate to be decided through a plebiscite held under the auspices of the UN remained.

In the wake of 1971 war between India and Pakistan, the Simla Agreement was signed and clause 6 of the agreement read: “Both governments agree that their respective heads will meet again at a mutually convenient time in the future and that in the meanwhile the representatives of the two sides will meet to discuss further the modalities and arrangements for the establishment of durable peace and normalization of relations, including the questions of repatriation of prisoners of war and civilian internees, a final settlement of Jammu and Kashmir and the resumption of diplomatic relations.”

Accepting the pendency of final settlement of Jammu and Kashmir was clearly a negation of India’s earlier claims of Kashmir being an integral part of it. Remember that India signed this agreement from a position of strength after having ensured separation of East Pakistan.

In the Lahore declaration signed between Vajpayee and Nawaz Sharif on February 21, 1999 both sides reiterated implementation of the Simla Agreement in letter and spirit and resolved that an environment of peace and security was in the supreme national interest of both sides and that the resolution of all outstanding issues, including Jammu and Kashmir, was essential for this purpose. It was again recognition of the fact that Kashmir was still an outstanding issue between the two states and a negation of the Indian stance.

According to former foreign secretary Riaz Muhammad Khan, the two countries made an effort to address the Kashmir issue in 2005-6. According to him as mentioned in an article he wrote, “It was [a] two-pronged approach: first, confidence-building measures across the Line of Control, which led to Muzaffarabad-Srinagar bus service and limited commerce in local goods; and second, an attempt through a discreet back channel for an interim solution which could ensure optimum benefit for the Kashmiris while protecting the essential interests of Pakistan and India. Kashmir was to be structured in self-governing sub-regions on both sides of the LoC similar to the approach recommended by Owen Dixon (UNCIP) for sub-regional plebiscites.

“The subregions could have had their own administration, police, security and legislator. The Kashmiris could freely move and engage in local commerce across sub-regions, and in that sense, the LOC would have lost relevance for them. These aspects were fully articulated. Some further work was needed on demilitarization and a joint mechanism to handle issues, in which, besides the Kashmiris, the two countries also had an interest. With the exception of Syed Ali Gilani, the other leaders of the All Parties Hurriyat Conference, who were twice briefed by president Musharraf, were positively inclined. The effort, however, stalled in early 2007, with the judicial crisis in Pakistan which unsettled Musharraf. Later in November 2008, the Mumbai terror attacks dealt a fatal blow to the effort.” The foregoing lines again insinuate that India accepted the existence of Kashmir dispute and the need for its resolution.

Finally, it needs to be mentioned that in the wake of Indian action to scrap articles 370 and 35-A of the Indian constitution changing the special status of the state and its subsequent annexation through the Jammu and Kashmir Reorganization Act 2019, the UNSC reiterated that the Kashmir dispute needs to be resolved in the light of the UN Charter and the relevant resolutions. As is evident, for the UN no material change has taken place in regard to Kashmir and the legal and moral obligations of the stakeholders to settle it through a plebiscite under the auspices of the UN. When that will be possible under the prevailing global circumstances cannot be predicted for sure.

The other factor to be considered is that even the people of IOK do not accept the Indian claims and are struggling to win their right of self-determination. Their struggle also de-legitimizes the Indian claims. They have lost one hundred thousand lives since 1989 and continue to bear the brunt of the brutalities of the Indian security forces.

The writer is a freelance contributor. Email: ashpak10@gmail.com