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Partition of British India and Kashmir’s accession

By Dr. Ghulam Nabi Fai

In 1947, Great Britain partitioned its South Asian colony India, into two new independent countries: ‘Hindu’ India and ‘Muslim’ Pakistan. The status of the colonies 565 princely states was impacted greatly as a result of this partition. These small states which previously had no allegiance to either dominion, following Viceroy Lord Mountbatten’s recommendation had to choose between these two new nations.

The ‘Princely state of Jammu and Kashmir,’ one of the largest of these princely states was constituted under the treaty of Amristar in 1846. Historically, Kashmir is known for its diversity and varied nature. Its physical environment and culture have been shaped by this diversity, and its peoples’ distinct individuality and identity formed by it. The regions of Kashmir include primarily Hindu Jammu, the principally Muslim Kashmir valley, and Ladakh, a largely Buddhist region. Kashmir is the north-western region of the Indian subcontinent. Historically the term Kashmir was used to refer to the valley lying between the great Himalayas by the Par Panjal Range.

Today Kashmir refers to the larger area that includes the Indian-administered regions of the Kashmiri Valley and Jammu and Ladakh. Kashmir contemporarily also consists of the Pakistani administered regions of the northern areas and Azad Kashmir which borders China. The ruling prince of Kashmir, Mahraja Hari Singh, seeking to pursue independence was reluctant to pay allegiance to either domain.

This was until a revolt arose against him by Muslim Kashmiri tribes in favour of accession to Pakistan with the help of Pakistani tribesman. The Maharaja sought India’s help in pulling out these invaders, and was forced to ask for Indian military aid in exchange for Kashmir\’s accession to this new Hindu state. The instrument of accession was signed on October 27, 1947.

Although Kashmir’s accession to India was and continues to be criticized widely, as it is seen as violating the principle of self- determination, it was in fact catered for under the two British acts of parliament that partitioned India. The Government of India Act 1935 and the Indian Independence Act 1947(i).

United nation’s interventions

The United Nations was involved in the conflict between Pakistan and India just months after the partition of British India. India brought the issue of Pakistani interference in Kashmir before the U.N. Security Council on January 1, 1948. Under article 35 of the U.N. charter, India alleged that Pakistan had assisted in the invasion of Kashmir by providing military equipment, training and supplies to the Pathan warriors.

In response, Pakistan accused India of involvement in the massacres of Muslims in Kashmir, and denied any participation in the invasion. Pakistan also raised question about the validity of the Maharaja’s accession to India (ii), and requested that the Security Council appoint a commission to secure a cease-fire, ensure withdrawal of outside forces, and conduct a plebiscite to determine Kashmir’s future (iii).

The Security Council adopted a resolution establishing the United Nations Commission on India and Pakistan (UNCIP), to act as the mediating influence, and to undertake fact finding missions under article 34 of the Charter(iv). Shortly thereafter, the Security Council adopted another resolution in support of Kashmir’s right to self-determination, and in recognition for the need for a plebiscite (v).

The plebiscite would be conducted under the supervision of an administrator appointed by the U.N. Secretary General and certified by UNCIP. The resolution also called for withdrawal of armed Pakistani tribesmen and instructed India to reduce her forces. The Commission was informed that both countries had made the situation very complicated as Pakistani regular troops were already inside the borders of Kashmir and that the tribal invasion plus the Indian intervention had evolved into a larger state of war between India and Pakistan.

On August 13, 1948, UNCIP adopted a significant resolution, which consisted of three parts: the resolution called for a cease-fire between the opposing forces (vi), required Pakistan to withdraw its troops and use its best efforts to secure the withdrawal of armed tribesmen, and provided that the evacuated territory would be administered by local authorities after the withdrawal of Pakistani forces and tribesmen, India had to reduce its forces.

The resolution restated the principle that the future of Kashmir should be determined by a vote of its people. The commission clarified this resolution by stating that the issue of Kashmir’s accession should be determined by a plebiscite after the execution of the first two parts of the resolution (vii). Both parties agreed upon the cease-fire line in 1949. This enabled the U.N. to finally send a Military observer Group to supervise the line (viii).

Despite its efforts, the UNCIP was disbanded in favour of individual U.N. Representatives. These representatives worked to negotiate a plebiscite in Kashmir until 1953 but their efforts proved futile. The U.N. remained active in the Kashmir issue for many years, and the Security Council frequently renewed its call for a plebiscite (ix).

Internationally, United Nations resolutions have no legal enforcement. The relevant resolutions of the Security Council were also not binding under article 25 of the U.N. Charter, rather they were recommendations made under article 38. The resolutions adopted by UNCIP were also not binding, as UNCIP member Josef Korbel said in 1949, one “had to keep constantly in mind that UNCIP was an Agency of good offices having no power to impose its decisions.” The U.N. would also intervene to arrange cease-fires during the wars of 1965 and 1971.

There is one other key factor behind the failure of the U.N. to resolve the Kashmiri issue. This was the prejudicial attitude and competing interests of four of the five permanent members of Security Council. The US’s suspicions of India’s commitment to the non-alignment movement, alongside India’s relationship to the USSR and China’s support of Pakistan, ensured that any decisions made were constantly vetoed.

Self – determination and the resolution of the conflict over Kashmir

The principle of self-determination stipulates the right of every nation to be a sovereign territorial state. It affords to each population the right to choose which state it wishes to belong to, often by plebiscite. The principle of Self-Determination is commonly used to justify the aspirations of minority ethnic groups. The principle equally grants the right to reject sovereignty and join a larger multi-ethnic state.

With regards to the Kashmir conflict, it is clear that Kashmir offered an ideological problem for both India and Pakistan. For Pakistan the Muslims of Kashmir had to be part of Pakistan under two nation theories (x), and for India, the failure of a Muslim majority state to survive within its system put under strain its secular vision. While considering the basic principle behind self-determination, as article 1(2) of the Charter of the United Nations 1945 states: ‘The purposes of the United Nations are…to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace…’

We must also recognize that the doctrine of self-determination is also part of two more international human rights treaties: the International Covenant on Civil and Political Rights (xi), and the International Covenant on Social, Economic and Cultural Rights (xii). Common article 1, paragraph 1 of these Covenants provides that: ‘All people have the rights of self-determination, by virtue of that right they freely determine their political states and freely determine their economic, social and cultural development.’

The people of Kashmir under international law have the ability to determine their own political future. History clearly shows us that the conflict in Kashmir is one for self-determination. The positions undertaken by both Pakistan and India, however, have negated any possibility of self-determination. The international community’s attitude toward the Kashmir plebiscite has been to ignore it and maintain the status quo. This stance however, due to the militarization and nuclear emergence of these nations has been forcibly accessed due to the increased danger of the situation. Recent alterations in regional politics, along with changing world views on terrorism, may hopefully open the door for an enduring resolution to the Kashmir conflict.

A question arises concerning the suitability of a plebiscite as the legal option to secure self-determination in Kashmir. The straightforward solution would be the implementation of the United Nations’ resolutions regarding Kashmir. The United Nations’ Security Council determined in 1948 that the people of Kashmir should exercise their right to self-determination through an independent plebiscite.

These resolutions also recognized the disputed state as the unfinished upshot of partition, and its right to accede either to India or Pakistan.Early on in the Kashmir conflict, both India and Pakistan argued that the appropriate solution lay in a plebiscite, and both claimed that a plebiscite would illustrate the will of the people. The U.N.’s 1949 plebiscite instructions became increasingly doubtful, however after the Simla agreement (signed in 1972), both India and Pakistan agreed that bilateral negotiations would be the best way to bring an end to the conflict.

Yet despite their desire for a bilateral solution, a third option still existed. It was the one favoured by The Jammu and Kashmir Liberation Front and the All Parties Hurrriyat Conference (xiii). While other groups and political parties both within and outside Kashmir have consistently stated their support off and abidance to a free and fair plebiscite on Kashmir’s future, conducted under the auspices of the United Nations, India, Pakistan and China categorically refuse it.

If one looks at the contemporary development of international law with respect to self-determination, particularly with regards to East Timor, there exist three principal arguments to be made in support of international enforcement of the right to self-determination in Kashmir.

Like East Timor, Kashmir’s international legal status is uncertain. It is unclear whether Kashmir today exists as part of India, Pakistan or both. Again similarly to East Timor, the Security Council has outlined the right of self-determination to the Kashmiri people through an independent plebiscite. However, the constant threat to peace that exists in Kashmir serves as a hurdle to achieving this right.

In East Timor, the Security Council pursuant to its powers under chapter VII of the UN charter authorized an International Force for East Timor (interfet) to preserve the freely expressed will of the people. Threats to international peace are arguably greater in Kashmir than they were in East Timor. India and Pakistan have fought three wars over Kashmir, and the nuclear capabilities of both countries add to the dangers of elongating any chances for peace.

The evident relationship between systematic human rights violations or lack of representation within an existing state and the desire for secession clearly supports calls for international intervention in order to serve the interests of stability and peace according to the charter of the United Nations in Kashmir. So UN intervention in support of the right to self-determination is justified through the example of East Timor.

As mentioned above, all international human rights bodies unequivocally agree both that human rights are systematically denied in Kashmir and that Kashmiris should be given the opportunity to exercise their right of self-determination. The conflicts in East Timor and Kosovo are comparable to Kashmir in this respect, and the legal framework applied in each case may provide similarly applicable solutions for Kashmir.

Human rights violations in Kashmir

The preamble to the Universal Declaration of Human Rights states: ‘Whereas it is essential if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’ Furthermore, article 1 of the Universal Declaration of Human Rights declares: ‘All human beings are born free and equal in dignity and rights. They are endowed with reasons and conscience and should act towards one another in a sprit of brotherhood.’ In addition under international law, all peoples have a right to self-determination.

This reflects most perfectly the law’s self-image as a guarantor of peace, human rights and democracy. If we look into the situation in Jammu and Kashmir, a general condition of lawlessness and mass human rights violations exist in both Indian-held Kashmir and Pakistani-held Kashmir.

Indian-held Kashmir

Human Rights Groups have uncovered in Jammu and Kashmir the internment of numerous persons held by military and paramilitary forces in long term unacknowledged detention and interrogation centres, and transit camps intended only for short-term confinement. Human rights activists fear that many of these unacknowledged prisoners are subjected to torture and some killed extra-judicially. There were attempts to restrict International human rights organizations and monitors from visiting Kashmir for investigative purpose (xiv).

Amnesty international and others have acknowledged how Indian forces have committed summary executions of Kashmiri civilians with total impunity. Atrocities such as shootings into unarmed crowds of demonstrators and firing on funeral processions occur regularly, despite the prohibiting of arbitrary deprivation of life under any circumstances under International human rights law. The government of India is a party to the International Covenant on Civil and Political Rights (ICCPR). Article 6 of the ICCPR expressly prohibits derogation from the right to life. Thus, even during times of emergency, no one shall be arbitrarily deprived of his life (xv). The ICCPR also prohibits torture and other forms of cruel, inhuman and degrading treatment.

Articles 4 and 7 of the ICCPR explicitly ban torture, even in times of national emergency or when the security of the country is threatened (xvi). The Indian armies special task force (STF), Border security force (BSF), and state sponsored paramilitary groups and village defence committee the principal government forces operating in Jammu and Kashmir (xvii), have systematically violated these fundamental norms of international human rights law.

Pakistan-held Kashmir

The situation is Pakistani-held Kashmir is somewhat different from Indian-held Kashmir. After Pakistani independence, the constitutional status of the Federally Administered Northern Areas (Gilgit and Baltistan), is also considered disputed territory. It was once a part of the former princely state of Jammu and Kashmir but now under Pakistan control.

These areas are neither a province of Pakistan nor a part of ‘Azad Kashmir.’ They are ruled directly from Islamabad through a Northern Area Legislative Council which is headed by Pakistan’s Minister for Kashmir Affairs. The Pakistani government’s appointed Chief Executive is the local administrative head. The Northern Areas Legislative Council meets only when Pakistan’s Minister for Kashmir Affairs convenes it.

The arbiter of Pakistan Kashmir policy (Pakistan military) insists that the Northern areas remain part of the disputed state of Jammu and Kashmir and that any demarcation of the region’s constitutional status will have to wait for a solution of the Kashmir dispute. As a result, the Northern Areas are not included in the Pakistan constitution and unlike the Federally Administrative Tribal Areas (FATA), are not represented in the parliament (xviii). Because of this lack of political representation, the people of these areas endure problems of sectarianism, unemployment, and lack access to information amongst other things.

Conclusion

This conflict is defined by an amalgamation of mutually reinforcing domestic and international factors. The International community must understand the needs of the post-Cold War era and reconsider the doctrine of self-determination. To this day people still suffer from the consequences of neo-colonial domination. The international community should not reject or ignore movements of self-determination. Such sentiments as in Kashmir have only lead to numerous human rights violations, and killings. The doctrine of self-determination must play a central part in any plan for the peaceful future of Kashmir.

The Negotiation table and International Law offer the best opportunity for the final settlement of the conflict. This process of dialogue must be as inclusive as possible. Anyone willing to participate, regardless of their political orientation, should be invited to the discussion table to participate. This will serve to avoid a situation whereby any group that is left out of the peace-making process and feels it has no stake in it, from continuing to intensify the violence. Taking into account the principle of self-determination, the international community has to assist and urge India and Pakistan into bringing stability to a volatile South Asia.

In the democratic vein of anti-colonialism it is time to give true self-determination to the Kashmiris. It is also time for India and Pakistan to resolve this long conflict through finding a genuine, feasible solution through cooperation with the international community. Dr. Ghulam Nabi Fai, World Kashmir Awareness Forum, He is the Secretary General of the “World Kashmir Awareness Forum” and the founding chairman of the London-based “Justice Foundation”, “International Institute of Kashmir Studies” and “Kashmir Press International”. Member of the Board of Directors, Istanbul-based “The Union of NGOs of the Islamic World” (UNIW).

Dr. Fai holds a Ph.D. in mass communications from Temple University, Pennsylvania, and an M.A. from the Aligarh University in India. Dr. Fai was invited to many international organizaitons including UN, OIC and the EU to give a seminar on human rights issues and Kashmir. In several occasions he represented Kashmir as a member of the “True Representatives of the People of Jammu & Kashmir”.

Dr. Fai has been a leading spokesman for the Kashmir cause for over four decades and has traveled to over forty countries lecturing on the subject. His articles appeared in The New York Times, The Washington Post, The Washington Times, Chicago tribune, Wall Street Journal, Financial Times, Daily Guardian, Plain Dealer, Baltimore Sun and many other foreign policy journals in the United States and around the world.

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