The Genesis of Kashmir Conflict (cont)
 

Pakistan's role in Kashmir:

Pakistan attempted twice without any success to take Kashmir by force in October 1947 and again in July 1965. It is worth noting in 1947, Kashmiris irrespective of their religious affiliations fearlessly opposed Pakistan's interference in the state to defend their ideology against the two-nation theory.

Pakistan's duplicity towards Kashmir became first obvious when she sent her tribal invaders on 21 October 1947 to annex Kashmir-- what was at the time technically an independent and Sovereign State. And later backed off by failing to comply with the first condition of the UN Resolution of 13 August 1948.

It was also Pakistan on December 22, 1949 that proposed an amendment in the text of the first UN Resolution, which had already been accepted by both India and Pakistan. The proposal was that “the future of Jammu and Kashmir" be replaced by "the question of accession of the state of Jammu and Kashmir to India or Pakistan".

This (amendment brought by Pakistan) became the basis for the UN to recognise Kashmir as a regional dispute between the two countries. Thus depriving the people of Kashmir from moral and financial support of the UN and the international community!

Obsessed with greed for territorial gains, Pakistan for the third time in 1989, started to fish again in the troubled waters of Kashmir. However, on this occasion Pakistan successfully engineered a mass armed revolt in the valley against India. Pakistan by igniting the religious and emotional sentiments of Kashmiri Muslims turned the growing anti-India tide in her own favour.

Given Pakistan's historical and religious links with Kashmir, it is not difficult to understand why the disgruntled section of Kashmiri people were so easily lured to gun.

No sooner militancy gained its foothold in the valley, the first target became the minority Pandit community of Kashmir. The inevitable mass exodus of Kashmiri Pandits that followed shook the very foundations of Kashmir's centuries old traditions of religious tolerance and communal harmony gave it a religious twist of a holy war.

With militancy dominating the political scene in Kashmir, insurgency and counterinsurgency operations led to massive human rights abuse. The culture of gun  transformed a nationalistic Kashmiri struggle into a terrorist movement without taking the people of Kashmir any closer to a solution.

UN Resolutions on Kashmir:

Those who know and understand the political and constitutional history of Kashmir realise that a reference to UN Resolutions on Kashmir by Pakistan is merely a stunt than a stand, to dislodge India from Kashmir through a plebiscite.

Pakistan's own vulnerability becomes obvious if one looks more closely at her drumbeat of UN Resolutions and right of self-determination for Kashmir.

Firstly, it was Pakistan who failed to comply with the first condition of the UN Resolutions calling for a complete withdrawal of Pakistani forces from all parts of the state as a precondition to plebiscite. This failure of Pakistan to comply with the UN Resolution is in itself an answer to her demand for a plebiscite in Kashmir.

Secondly, there is very little enthusiasm among Kashmiri people for a plebiscite, which would confine them to exchange life under Indian ownership for life under Pakistani ownership.

Thirdly, there has been a sea of change in the region since the UN Resolutions were first passed. Kashmir's accession to the present day Pakistan-- one of the world's poorest countries, ranking 132 out of 173 in terms of human development, is a very unattractive option.

It is most important for the Kashmiri people to understand that UN Resolutions on Kashmir are not mandatory like those in the case of Iraq; they can only be implemented if India and Pakistan wish to do so. The first UN Security Council Res. 47 (1948) and all the subsequent resolutions on the subject of Kashmir, were adopted under Chapter VI of the UN Charter and did not have mandatory effect, they are just recommendations.

The UN Resolution stands as confirmation that Kashmir's definitive accession to India depended on the later fulfillment of certain conditions, most importantly ratification by the people of the state.

India maintains that Maharaja's conditional Accession of Kashmir to India was ratified in February 1955, by the elected state constituent assembly of Kashmir (twelve nodding goats according to Kashmiris) . But the Constitutional experts would argue that this was in violation of the stand taken by India in the Security Council.

The people of Jammu and Ladakh regions of the state have always made it clear that their future lies within the perimeters of the secular Indian Union. This is reflected by their non-participation in the present movement, which has gripped the valley of Kashmir since 1989. Similarly, there is hardly any perceptible political or armed struggle in the regions of Kashmir under Pakistan's control.

Those who harp on implementation of UN Resolutions on Kashmir know very well that both India and Pakistan failed to honour them in the first instance; as they are not mandatory the UN cannot enforce them. Thus it seems any reference to the UN Resolutions is a major hindrance in Indo-Pak attempts to resolve the dispute. They are both fighting to preserve their national prestige.

Right of Self-determination:

With the way, the UN system has been recently viewing right of self-determination the people of Kashmir would need to understand the current views regarding right of self-determination within the framework of international law. "According to the UN the right to self-determination does not mean the right to secede, if the Parent State is an independent one, a de-colonised one".

According R.Edrisinha, of the Faculty of Law, Colombo University, the UN has defined self-determination in such a way that it means devolution of power, regional autonomy and minority rights rather than secession. In fact, these bodies have explicitly decried secession.

According to Rosalyn Higgins, judge in the International Court of Justice "peoples'' have the right to self determination, but "peoples", for her means the entire people of a state, composing distinctive groupings on the basis of race, ethnicity and religion.

If one looks at the most favourable interpretation of the right of self-determination as given by Rosalyn Higgins, the case for Kashmir's right of self-determination as a "people" will not stand under the international law, since Kashmiri demands for right of self-determination are confined to a section of the Muslim population of the valley alone. While the people of Jammu and Ladakh regions have stayed aloof. Similarly, the people of Northern Areas and Azad Kashmir have quite differing views about their future constitutional relationship with Pakistan.

Therefore, it seems pursuing the option of right of self-determination taking into account the ethnic, cultural, linguistic and religious diversity of the erstwhile princely state of Jammu and Kashmir, will lead to further division of the state with devastating consequences for the entire region. A vast majority of Kashmiri people would oppose any further division of the state on religious or ethnic lines.