Daily Times

Para 34 in a joint statement issued in Beijing at the end of Prime Minister of Pakistan Shehbaz Sharif’s visit covers Jammu and Kashmir. It states, “The two sides reiterated that a peaceful and prosperous South Asia is in the common interest of all parties. They emphasized the importance of resolving all outstanding disputes through sincere dialogue. The Pakistani side briefed the Chinese side on the situation in Jammu & Kashmir. The Chinese side reiterated that the Kashmir issue was a dispute left from history that should be properly and peacefully resolved based on the UN Charter, relevant UN Security Council resolutions and bilateral agreements.”

Reference to Kashmir as usual has brought a swift reaction from India. New Delhi has called it “unwarranted”. Indian spokesperson has criticised “plans to build more projects in Pakistan Occupied Kashmir (POK), with possible extensions to Afghanistan, under the China Pakistan Economic Corridor (CPEC).”

Ministry of External Affairs (MEA) spokesperson Arindam Bagchi has claimed Azad Kashmir and GB as sovereign territories of India and maintained that the infrastructure projects are an attempt to “change the status quo” in POK. He said “CPEC includes projects on the sovereign territory of India under forcible and illegal external occupation… Any attempts to involve third parties in such activities are inherently illegal, illegitimate and unacceptable, and will be treated as such by us.”

Dialogue is the civilised instrument of resolving a dispute.

New Delhi has covertly referred to its action of 5 August 2019 and said that “The Union Territory of Jammu & Kashmir and the Union Territory of Ladakh are and always will be integral and inalienable parts of India. No other country has locus standi to comment on the same.” Does this Indian stand have merit? The answer is no. Indian claim in Jammu and Kashmir is a consequence of the title of the People of Jammu and Kashmir to self-determination. It has its jurisprudence. The Indian response has to reconcile the wishes of the people and there is a UN template to ascertain these wishes. It has to reconcile the Pakistani’s interest in the dispute as well.

The government of India, before making a reference to UN Security Council in January 1948, has accepted on 27 October 1947 that “the question of the State’s accession should be settled by a reference to the people.” At the 230th meeting of the UN Security Council held on 20 January 1948, presided over by Belgium, the Government of India conceded and said, “We hope to be able to convince the Security Council that once we have dealt with the Kashmir question, there will probably not be anything of substance which will divide India and Pakistan to the extent of endangering international peace and security.”

India has accepted that “The people of Kashmir are not mere chattels to be disposed of according to a rigid formula; their future must be decided in their own interests and in accordance with their own desires.”

Jammu and Kashmir or any part of it could not be called a union territory of India. The State Autonomy Committee Report published in July 2000 in Srinagar and adopted by both houses of the Jammu and Kashmir Assembly, has flagged that, “the accession of J&K State was limited only to the areas of Defence, External Affairs and Communication” and there was no “instrument of merger” with the Indian union. This limited accession has been surrendered by India at the UN Security Council on 15 January 1948, for an UN-supervised vote on it. It is also incorrect to say that “No other country has locus standi to comment on the same.” China, Pakistan and all the member nations of the United Nations have a locus standi on Kashmir. China highlighted the question of interest of member states on 24 January 1957. China has made it clear that “This dispute has another peculiar feature. From the very beginning, the Council began with an agreement between the two parties. In fact, before the two parties directly concerned ever appeared before the Council, the two parties agreed that the plebiscite should be the answer. What did the Council do? The Council tried to build a solution on this prior agreement that the two parties had before they came to this Council. So the idea of a plebiscite was not imposed by the Council on the two parties.”

The United States of America, on 15 February 1957, robustly declared itself on the question of Kashmir. It said, “The Security Council will always welcome any agreement which the parties themselves can reach on any basis which will settle the dispute, provided of course that, that basis is consistent with the principles of the Charter of the United Nations. Security Council had a ‘positive duty’ and ‘unless the parties are able to agree upon some other solution, the solution which was recommended by the Security Council should prevail.” A third example that countries have a locus standi to comment on Kashmir comes from the statement made by Argentina at the UN Security Council on 4 February 1948. Argentina has said, “This matter having been referred to the Security Council, the Council is perfectly free to decide as it thinks fit, on the sole condition that it acts within the framework of the Charter.”

A fourth example that countries have a locus standi on Kashmir comes from the Netherlands. It said, “The lack of agreement, therefore, does not concern the right of self-determination. It concerns the ways and means and procedures to establish the conditions for a fair expression of the will of the people of the State of Jammu and Kashmir who want to make their choice free from any kind of fear or intimidation.”

The China-Pakistan joint statement does not exclude India as a party to the Kashmir dispute. Nor do the people of Kashmir deny the Indian interest. India and Pakistan have their interests and constituencies. The two respective interests are a consequence of a reference to the people. We support the joint statement calling for the resolution “based on the UN Charter, relevant UN Security Council resolutions and bilateral agreements.” Dialogue is the civilised instrument of resolving a dispute. Kashmir case has its jurisprudence and a UN template. Indian response to the joint statement has no merit and is at war with the jurisprudence of the Kashmir case.

The writer is President Jammu and Kashmir Council for Human Rights.