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Is Kashmir a Disputed Territory?
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Maj Gen Harsha Kakar | Date:30 Jul , 2016 0 Comments

Post the elimination of Burhan Wani, the Indian security forces have been working overtime to bring the situation in the valley under control. Throughout the crises, Pakistan continued to stoke fires by comments from its top leadership including its army chief. The observance of a black day on 19th Jul only added fuel to the fire. Statements from Nawaz Sharif asking for plebiscite and waiting for Kashmir to become a part of Pakistan, showed desperation on their side. The threats and support emanating from banned militant leaders of LeT and HM drove a wedge deeper into the relations. Indian response has been as per predicted lines, calling on Pakistan to desist from interference, as also accusing Pakistan of sponsoring terrorism and committing genocide on its own populace.

In Parliament as a part of the debate on Kashmir, the Home Minister directly accused Pakistan of fermenting the problem. It has always been known, not in India alone, but across the globe, that it is Pakistan which is behind the terrorism and violence which presently prevails in the valley and Afghanistan. Pakistan’s support to the Hurriyat and terrorist groups operating in Kashmir is well documented.

The major question existing today is whether Kashmir is legally part of an Indo-Pak dispute and if so which part, J and K or POK and Gilgit-Baltistan. Four wars have been fought, but to no avail. In each case Pakistan has only lost and forced to concede. The border continues to be termed as an LOC and remains active with firing from both sides. Presently neither country has the military capability of taking back its claimed areas.

The accession to India by Maharaja Hari Singh was final and irrevocable. The same accession document existed for all princely states as it existed for J and K. It was also ratified by the J and K assembly, which represented the public. Therefore, legally Pakistan has no claim. In fact, it was Pakistan’s hurried and illegal attempt of invading the state with its military and tribal militia which resulted in it speeding its accession to India. Thus they caused an action, which they now wish to undo.

Post Pakistan’s invasion of Kashmir and stabilization of the situation, India approached the UN which issued, resolution No 47 adopted on 21 Apr 1948, laying down the terms and conditions for dispute settlement. The UN resolution clearly stated sequential steps, for resolving the Kashmir tangle.

The first was that Pakistan withdraws its troops from POK, an action yet to be undertaken. The second was withdrawal of tribesmen and Pakistan nationals who entered for the purpose of fighting but remained, again ignored. Both were to be done to the satisfaction of a UN commission. Thirdly, POK was then to be governed by local authorities, or Kashmiri’s under an international commission. Once Pakistan completed these actions, then India was to withdraw bulk of its forces from J and K, not all, and in stages. Since Pakistan failed to implement its part, India could not contemplate even commencing its own part.

The final stage of the resolution was that once the military conditions were complied with, then the issue could be decided based on the will of the people. Pakistan’s fear that the will of the people would be towards India precluded them from taking the first step. Hence Pakistan’s demand for plebiscite today is outdated and illegal, as they failed to honour the UN resolution.

Post the nuclear tests conducted by both nations in 1998, the UNSC passed resolution No 1172 on 06 Jun 98. A paragraph of the resolution stated, “(the UN) Urges India and Pakistan to resume the dialogue between them on all outstanding issues, particularly on all matters pertaining to peace and security; in order to remove the tensions between them, and encourages them to find mutually acceptable solutions that address the root causes of all tensions, including Kashmir.” Hence, the UN supported the Indian stance of bilateral discussion, without any third party involvement.

Realizing that the UN resolution could never be implemented and its continuous demand was only rhetoric, Pakistan’s then President Pervez Musharraf stated in an interview to Reuters on 18 Dec 2003 that his country had ‘left aside’ the UN resolution on Kashmir and was willing for talks. In 2005, the UN Secretary General Kofi Annan stated that the plebiscite issue could neither be enforced nor self- implemented. Therefore, from 2006, the UNSC annual report has dropped the mention of J and K as disputed territory. Even the present UN Secretary General, Ban Ki-Moon has stated, “As far as the role of good offices is concerned, the UN normally takes initiative when requested by both parties concerned.”Most countries have since termed Kashmir as an internal issue of India, or at the maximum, a bilateral one. Hence, Pakistan’s beating its drums on Kashmir at the UN or in any international forum including the Organization of Islamic Cooperation (OIC) is hollow, as it has no legal standing in the international environment.

If analysed correctly, then POK and Gilgit-Baltistan is disputed, which India has the right to demand, since the entire state was acceded to it. Pakistan’s sole purpose of existence is J and K, hence if Kashmir is not raised regularly, then their government and army lose respect. The raising of the Kashmir bogie only plays to their own domestic galleries to save the government from being viewed as anti-national. Nawaz Sharif’s statement asking for plebiscite last week, was again to assuage internal compulsions. India, on its part, has been logical in stating that it is only a bilateral issue, as reiterated in the Shimla agreement.

Legally, India has the right to back the struggle of Kashmiri’s in POK and offer them moral and material (arms and ammunition) support since it continues to be under illegal occupation of Pakistan and their fight is justified. Pakistan’s actions of ceding areas to China is against International norm and should be questioned. India can strongly object to Pakistan even conducting elections in POK. India should seek regular visits of the UNHRC to POK and Gilgit-Baltistan to investigate on human rights abuses there. We should be raising the issue of POK, not them of Kashmir.

The Indian home minister’s comments that plebiscite is an idea whose time has long gone is correct. The plebiscite, if conducted, should have been done decades ago, by Pakistan fulfilling its accepted terms and conditions. Talks, if any, should be under our terms as we hold the cards. Finally, Kashmir is an integral part of India in every legal term and comments by any nation, should be ignored or termed as interference. The only solution, for India, is to initiate dialogue with as wide a variety as possible of the local population of Kashmir, with the aim of determining their aspirations, rekindling Kashmiriyat and developing the state, thus integrating it into the mainstream. The Hurriyat supported by Pakistan should be completely ignored in this entire exercise. India has to adopt a firm stand on Kashmir and PoK.


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The views expressed are of the author and do not necessarily represent the opinions or policies of the Indian Defence Review.

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