Aurang Zaib

The Kashmir dispute, on multiple occasions including the recent stand-off, brought Pakistan and India on the verge of full-fledged war. Indigenous freedom struggle has been challenging Indian barbarities since partition, however, India’s attempt to paint freedom fighters as ‘terrorists’ and blaming Pakistan for supporting the ‘terrorism’ in the aftermath of the 9/11 incident is a facade to hide the reality. The most recent attack on Indian forces in Kashmir in Pulwama serves as a vivid example of India’s blame game against Pakistan.

Why Kashmir?

Ironically, most of the states deemed terrorism as the major reason behind the latest India-Pakistan confrontation. USA and China, though adopted neutrality, but ensured India of their support against terrorism. Similarly, Theresa May called PM Imran Khan and termed terrorists groups as the apple of discord between the two neighbors. International Media did highlight the conflict but ignored the Kashmir dispute, which is the real bone of contention between the two nuclear powers. Thus, at the International level, India appears to be succeeding in diverting the focus from Kashmir towards terrorism despite the fact that India is committing gross Human Rights violations in the occupied region. As a consequence, indigenous freedom struggle has gained momentum particularly after the killing of Burhan Wani.       

Pakistan, on the other hand, has been supporting Kashmir’s right to self-determination ever since its inception.  According to the 3rd June 1947 plan; princely states in the united India were given three options i.e. accession to Pakistan, accession to India and independence. The states of Junagarh, Manawadar and Hyderabad Deccan were annexed by India, as majority of the population was Hindu as well as the geography of the states favored accession with India. The fact that their rulers being Muslims intended to coddle with Pakistan did not matter in the annexation and that is why we do not see a dispute on these between Pakistan and India. However Kashmir is an entirely different story, where the maharaja was a Hindu himself but a heavy majority (90%) of the population was Muslim and the leader acceded to India, against the will of the populace, triggering an unending dispute. Hence, Pakistan’s locus standi on questioning the accession is quite unambiguous.

Pakistan demands that the Kashmiris should be given the right to decide their fate. To the region’s misfortune, India doesn’t corroborate with it and contends that the 3rd June 1947 plan gave the choice to the head of the princely states and not the inhabitants. Furthermore Pakistan contends that the accession is illegal because according to the article 49 of the Vienna convention of the law of treaties,

“Any agreement signed after the use of force or threat is invalid according to the principles of the charter of the UN.”

Article 49, Vienna Convention of the Law of Treaties

History guides us by telling that the Indian army was present in Srinagar at the time of accession and so the accession of the state by its Maharaja to India under such circumstances is null and void.

The Reason Behind Hostilities

The real reason behind the previous as well as recent Indo-Pak conflicts is the negligence of Kashmir’s Right to self-determination. According to the earlier UN Security Council resolutions, a denouement was reached which was to hold a fair plebiscite under UN auspices. In 1951, India claimed that democratically elected representatives of the valley gave their decision in the favor of India, a move bitterly opposed by Pakistan which demanded that the plebiscite should be held on the basis of adult franchise and Kashmiri population should be given the right to decide its fate and not their representatives. The demand is backed by the covenant of 1966 which declares that all peoples have the right to self-determination. By virtue of that right they autonomously determine their political status and independently pursue their economic, social and cultural development. Indian government on the other hand has remained reluctant to give Kashmiris their very basic right, i.e. freedom.

Simla Legalities

Pakistan and India signed Simla Agreement in 1972 bury the hatchet after a bloody war a year back. The agreement instead of de-escalating tensions by making advance towards resolution, rather gave rise to a plethora of problems. The agreement excludes any third party, even the United Nations, from intervention, including UN unless the two countries mutually decide otherwise. Vienna convention on the law of treaties which is based on the well-known Roman law principle expressed in the maxim “pacta tertiis nec nocent nec prosunt”, signifies that “agreements” neither impose obligations nor confer rights upon the third parties. Thus the dispute was turned into bilateral according to which without the consent of two parties no third party can intervene.

Simla agreement was signed by Indira Gandhi and Zulfiqar Ali Bhutto in order to normalize the relations between two countries but soon after the agreement Indian government began to exceed limits and started human rights violations in the valley. Pakistan’s attempt to highlight the matter in the United Nations was lambasted by India which claimed that Kashmir could not be taken into UN after Simla Agreement. The point is, according to the article 2 of the Simla agreement, it is enshrined that the principles and purposes of the Charter of United Nations shall govern the relations between two states. So, this article also confers right on the United Nations to meddle into this conundrum and settle the dispute between the two major powers of the region.

Where From Here?

Since 1972, no mutual understanding has been reached as the negotiations have been entirely unsuccessful and the dispute still persists with massive human rights violations by the Indian forces in Kashmir. Kashmir is a nuclear flashpoint which keeps triggering hostilities between the two nuclear powers and therefore, Status quo is not an option. The first world war erupted due to a minor territorial dispute when Austrian archduke was assassinated In Bosnia by Serbia. Similarly, one of the reasons behind the second world war was appeasement of Germany by Britain and allies. In the contemporary scenario, realizing the primea facie of India, the major powers are either unwilling or unable or perhaps both to pressurise India to seek a settlement of the matter. World powers hesitate from interfering and playing their required role, in the dispute, as this antagonizes India, which is a rising economy and a great military power.

The sanctity of International Law must be protected in order to prevent future wars and the International Community has a major role to play in this regard which needs to ensure that no state is lent impunity. The onus is on United Nations as well to seriously look into the matter as the Simla agreement in its article 2 states that the principles and purposes of the charter of United Nations shall govern the relations between two states. Due to Kashmir imbroglio, both stake holders are advancing in arms race whose repercussions can be harmful. As long as the dispute exists, regional stability will be at stake. Without resolution of the dispute, there is no guarantee to secure the region from an impending nuclear disaster.

About The Author
Aurang Zaib is a student of International Relations at Quaid-i-Azam University, Islamabad. His areas of interest are security and foreign policy. He tweets @AZ_Uthwaal

The views expressed in this article are solely those of the original author and do not necessarily reflect or represent the views of Rationale-47. 


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