There is a confusion on the ownership of the Kashmir case. If one reads the UN package on Kashmir, Constitution of Azad Kashmir and article 257 of the Constitution of Pakistan, there is hardly any confusion. The jurisprudence of Kashmir case is either misunderstood or we misdirect ourselves. India and Pakistan may have agreed in June 1997 joint statement to disturb its core status and add Kashmir into eight outstanding issues, according to United Nations Kashmir continues to remain as “the greatest and gravest single issues in international affairs”.
Those who do not want to hear about UN Resolutions and regard it as history, can’t be dignified as Kashmir experts. They are hurting the Kashmir case and contributing to Indian strategy to wear away from the agreed merits of a UN supervised vote. UN has defined the Kashmir case and put in place an operational regime. It recognises that Kashmir have rights, integrity, security and self-determination. There has to be a free, secure, and impartial plebiscite.
According to Pakistani proposal we should have had a Plebiscite in the spring of 1948, that is in 3 months by March, April and May 1948 or according to British proposal, a Plebiscite should have been held from May 1948 to October 1948. The dispute is not on the principle of self-determination but on the procedure and process. Principle of equality of people and self-determination has been agreed by India and Pakistan and endorsed by the UN Security Council. Therefore history and dates are the Kashmir case.
There is a disagreement on the ownership of the case, when it comes to Government of Azad Kashmir. In fact Government of Azad Kashmir and the Government of Pakistan have entered into a partnership in Act 1974, to provide “for the better Government and administration…until such time as the status of Jammu and Kashmir is determined, through a free and fair plebiscite under the auspices of the United Nations as envisaged in the UNCIP Resolutions”. This partnership is according to the outsourced duties and responsibilities accepted under UNCIP Resolution. Therefore, the litmus test of discharging or failing to discharge the duties are the UNCIP resolutions. Government of Azad Kashmir has established her first contact with chairman of UNCIP on 8 July 1948. It seems to be the only formal contact ever since.
Those who do not want to hear about UN Resolutions and regard it as history, can’t be as dignified as Kashmir experts. They are hurting the Kashmir case and contributing to the Indian strategy to bring the issue away from the agreed merits of a UN supervised vote
Agreements made at the United Nations carry a support of 193 countries. The ultimate ownership is of all member nations of the UN to see that the principle of ‘equality of people’ and ‘self-determination’ are respected. India wants to distance from the UN jurisprudence on Kashmir. It has been making efforts to engage Pakistan in bilateral discussions, in order to enjoy a sense of dominance by virtue of its size and seemingly a successful diplomacy.
India is in favour of pushing and supporting Track II diplomacy. She finds it easy to monitor and discipline its contours. There is no harm in a Track II engagement. Its first disadvantage is that it is non transparent and carried in stealth. It could be helpful if it is used to advance the agreed UN mechanism on Kashmir.
Track II engagement on Kashmir should not be allowed to hurt the agreed UN mechanism on Kashmir. It should be used to streamline the existing impediments in the process and should be used to carry forward the democratic process of a UN supervised vote. It suits India to keep international community away and out of Kashmir equation. In the current situation it has helped India to gather valuable intelligence and gain time, in hiding her repression and violation of human rights in Kashmir.
If Government of India which has presented her case at the UN in full detail not for months but for years and years and has faced world’s best minds in her cross examination, has agreed and reaffirmed the right of the people of Kashmir to self-determination through a free, secure, and impartial plebiscite and has managed to dodge all these years, how would she ever feel obliged to the outcome of any Track II engagement on Kashmir. In fact, Track II engagement being non transparent could be used to misquote the intention of the parties. It could be used to send false signals to people of Kashmir, in particular to the strong constituency of Pakistan that UN could not help Kashmir so far and Pakistan too does not have any appetite to keep its foothold as a party to the dispute and as a member nation of UN, therefore it is advisable to sit with India for a quick fix.
It is generally believed in Kashmir that Sheikh-Indira accord of 1975 was the result of similar signals. People argue that Sheikh Abdullah was told from Islamabad that due to 1971 war, Pakistani help would not be there for a long time.
Track II diplomacy should not be used to whisper despair into the ears of the people of Kashmir and Pakistan. These people should be able to stand tall from all others in the understanding of the Kashmir case, comparative studies, and should not have any hint of self-indulgence. Their work should help India and Pakistan to understand that there is no substitute to rights and dignity, and security and self-determination of the people of Jammu and Kashmir.
The author is the President of JKCHR – NGO in Special Consultative Status with the United Nations. He is on UN Register as an Expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. He is a senior advocate of the Supreme Court. Author could be reached at [email protected]
Published in Daily Times, May 19th 2018.