IIAS | IIAS Newsletter Online | No. 17 | Regions |South Asia
Kashmir and the United NationsNo matter the complexion of governments in India and Pakistan over the years, the dispute over Kashmir has remained the most contentious issue between the countries. Emergence of a nationalist-oriented coalition government in New Delhi in 1998 served to highlight the fragility of mutual confidence. India, introspective, and defiant following condemnation of its nuclear tests, appears in no mood to compromise or even consider a workable solution to the problem of the territory which is regarded by most Indians as an integral part of the republic. Pakistan, with a lack-lustre but idiosyncratic leader of a high-majority government, and ever suspicious of its larger neighbour, is not inclined to consider Kashmir in the context of Indian nationalism, and has adopted a robust stance bilaterally and internationally.
By Brian Cloughley
The United Nations Military Observer Group in India and Pakistan (UNMOGIP) has been stationed in Kashmir since January 1949. There have been suggestions that it be disbanded because India contends, concurrently and perhaps confusingly, that Indian-administered Kashmir is part of a State of the Republic but that discussions concerning the region should be bilateral between itself and Pakistan, excluding the UN and thus justifying the Mission's elimination. No such proposal has been made formally, but Indian diplomacy is pitched at claiming that UNMOGIP is moribund.
India's contention that the UN no longer has a part to play in the Kashmir dispute may be defensible in terms of altered circumstances since passage of UN resolutions relevant to the controversy; but it appears there is no premise on the part of the UN that would satisfy India's interpretation of affairs. There is a potential problem of induction inherent in the Indian stance, in that fundamental questioning of Article 34 of the UN Charter (that the Security Council 'may investigate any dispute . . .') might give rise to serious complications.
Nevertheless, there are reasons to examine the standing of the UN concerning Kashmir. The dispute has lasted for a half-century without there being a definitive approach to resolution, other than force of arms. It caused two wars; has given rise to an insurrection resulting in over twenty thousand deaths; and exists in a legalistic limbo in which the inhabitants are denied a voice in deliberations that might determine their future. The dispute, Alastair Lamb says, began 'as a contest over rights to a territory, not the struggle to establish the wishes of a people.' Yet it is a determination of the United Nations that 'We, the people' should 'save succeeding generations from the scourge of war,' and it is evident that the issue of Kashmir is the most likely catalyst for conflict in the Sub-continent. At a time when Pakistan and India are consolidating their nuclear and missile programs a focus on their major dispute would appear timely, and attempts to remove a probable conflict catalyst desirable and even urgent.
UN resolutions of 1948 and 1949 are clear in their intent that a plebiscite should be held 'to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan.' This was endorsed by Prime Minister Nehru in that '. . . my Government, animated by a sincere desire to promote the cause of peace and thus to uphold the principles and the prestige of the United Nations, have decided to accept the resolution.'
But the plebiscite arrangement, to which so many dedicated international figures gave their attention at the behest of the Secretary General, at no stage of negotiation by representatives or rapporteurs appeared likely of adoption by either country, albeit for different reasons. The report by Sir Owen Dixon of Australia is of special note as an admirable exercise in patience in addition to being a tour de force. Sir Owen summed up the situation in terms as pristine and relevant today as they were in 1950:
The State of Jammu and Kashmir is not really a unit geographically, demographically or economically. It is an agglomeration of territories brought under the political power of one Maharajah. That is the unity it possesses . . . The interests of the people, the justice as well as the permanence of the settlement, and the imperative necessity of avoiding another refugee problem all point to the wisdom of adopting partition as the principle of settlement and of abandoning that of an overall plebiscite.
Dixon's sagacity and common-sense are also plain in his summation that 'The continued maintenance of two armies facing one another across a cease-fire line is another matter. A danger to peace must exist while this state of things continues,' which proved predictive and perspicacious.
The Cease-fire Line (CFL) dividing Kashmir was mandated by the United Nations in 1949 and renamed but only slightly altered in 1972, following the 1971 Indo-Pakistan war, when it was mutually delineated as the 'Line of Control,' or LoC. It was considered by representatives of both armies that there would be no point in defining the LoC in the wastes of the northeast where no troops were in place. Nor was there, for the area is of no economic or strategic importance. But in 1984 Indian troops occupied the Siachen Glacier, which action did not contribute to trust or stability in the Subcontinent and was in violation of the Simla Accord which noted that 'the two countries are resolved to settle their differences by peaceful means . . .'
The territories are largely representative of the objectives of UN resolutions save in one aspect, and that important and apparently insoluble: military presence. The countries maintain enormous forces in the disputed region.
An early proposal by the UN to assist in negotiations, if necessary by neutral mediation or by introduction of troops to hold ground while the two sides withdrew, was accepted by Pakistan and rejected by India. Following Pakistan's offer in September 1957 to withdraw its troops from the Cease-fire Line, India's representative Mr Krishna Menon declared that 'The Security Council dare not ask us to accept the introduction of foreign troops on our Sacred soil,' which sentiment may appear inconsistent with his prime minister's desire to 'uphold the principles and the prestige of the United Nations,' and with India's own contributions to UN peace-keeping missions, but is nonetheless definitive. The Bharatiya Janata Party does not appear to have views on Kashmir that are any more supple than those of Mr Menon in 1957. It holds that 'the root of the problem lies with the Nehru-Mountbatten original sin of granting article 370 and then internationalizing the issue by placing it before the United Nations.'
Article 370 of the Indian Constitution was intended 'to recognize the special position of the State of Jammu and Kashmir and provide for that special position by giving special power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify.' The region is thus given a different status to the States of India proper, and it is the BJP's stance that such distinction should not apply. The BJP has long 'been seeking Jammu and Kashmir's total integration with India.'
It is understandable that the Indian position concerning bilateral discussion of Kashmir is focused on alleged support for Kashmiri separatists by Pakistan. It is apparent that Pakistan provides such support, but India claims that it is physical and material and thus unlawful, while Pakistan avers that it is moral and political and thus a counter to alleged human rights violations in the Valley of Kashmir concerning which there have been critical reports by Amnesty International. But the countries appear reluctant to observe the obvious: that political posturing and exchange of insults will not solve the problem.
Elections in 'Azad' Kashmir have been in general as fair as elections can be in the volatile Subcontinent. In Indian-administered Kashmir the picture, although similar, has been distorted by the politics of the Center, in that the ruling party in New Delhi, usually the Congress, has in its quest for supremacy tended to corrupt the polity of the region. The Chief Secretary of Indian-administered Kashmir (IAK), Mr Ashok Jaitly, said in February 1998 that 'democracy [has] failed Jammu and Kashmir's eight million people' and it would be difficult to find an impartial commentator to disagree with this contention. The overriding problem, however, is that years of manipulation caused a rebellion which has fed upon reaction to it and created an atmosphere in which it will be difficult to build confidence. The majority Muslims of IAK are despondent concerning their future and have seized on an alternative whose only virtue is that India and Pakistan agree its inadmissibility: independence.
So what might be called a 'standstill agreement' could serve to defuse tension. To draw the extremists of the guerrilla bands into talks may be much to ask of India, but it worked in the Sikh rebellion in Punjab. An Indian officer said to this writer in 1994 that efforts to crush the insurrection in Kashmir would go on 'for as long as it takes and as much as it takes,' which is perhaps a cruder approach than desirable and one that might be regarded as somewhat out-dated in the field of conflict resolution. It appears there is not only a battle to be fought for the hearts and minds of the insurrectionists but for the attitudes of those who combat them. The way ahead will be difficult. The ice-breaker, however, could be Pakistan. It is time for Pakistan to acknowledge that 'Jammu and Kashmir' is now, whether legally or not, a part of India.
Indian-administered Kashmir will never be surrendered by an Indian government, anymore than 'AK' would be given up by Pakistan. The population of 'IAK' is ripe for more sophisticated processes of conciliation to be initiated by New Delhi. But it is Pakistan that could provide the impetus for this. First, it should indicate that Pakistan is prepared to accept the Line of Control as a border, provided there is mutual troop withdrawal from the Siachen Glacier area in which there is as senseless a conflict as has ever taken place. This would be supervised by UNMOGIP which would remain in the region. But the declaration of the LoC as a border is not simple. No matter the xenophobic determination of India to refuse mediation, the plain fact is that the two sides of themselves would never agree on detail, which is precisely why India takes the stance it does, and why Pakistan is content for that position to continue. An independent arbitrator is essential if the sides are to reach accord. Unfortunately it is on vanity and intransigence that the entire peace process could founder, with incalculable consequences for the region.
Brian Cloughley (email@example.com) served as deputy head of the UN Mission in Kashmir and as Australian defence attache in Islamabad. His book Wars and Insurrections, the story of the Pakistan Army, is to be published by OUP in November. He is currently engaged in writing for the Stimson Center on Kashmir.
IIAS | IIAS Newsletter Online | No. 17 | Regions |South Asia