By Shireen M Mazari, Pakistan’s Federal Minister for Human Rights

Background

The Kashmir conflict has once again come centre stage in the aftermath of the continuing violence being perpetrated by the Indian Occupying security forces against unarmed Kashmiris. Also, for the first time a UN body finally took the initiative with the publication of the first ever Report by the Office of the United Nations High Commissioner for Human Rights (OHCHR) released on 14 June 2018. Unfortunately, Pakistan failed to move proactively on Kashmir in the wake of this Report – reflecting a serious lapse in responsible foreign policy. All that Pakistan did was meekly welcome the Report even as India was vehemently criticizing it. The Report is a credible account of the Human Rights situation that prevails on both sides of Kashmir and is a first step, since the UNSC resolutions, of the UN in recognizing its responsibility to resolve the Kashmir issue in accordance with said resolutions.

The Report should have formed the basis for proactive diplomacy on the part of Pakistan in global capitals and international forums from the UN to the OIC beginning with an immediate invitation to the UN High Commissioner for Human Rights (UNHCHR) to send in her team for assessing the situation on the ground in AJK. Pakistan should have done it when the report was being drafted, instead of indulging in the usual “we will if India will” approach, as it would have shown Pakistan’s good intentions. There are times in diplomacy when it is more advantageous to adopt a “we will do it because we think its right regardless of what India does” approach.

Anyhow, beyond the invitation to the UNHCHR and taking advantage of the OHCHR’s Report, Pakistan should have moved proactively on the following and should still do so:

One: Should have moved, and should now move, the UN Human Rights Council – as recommended in the report – to establish a commission of inquiry to conduct a comprehensive independent international investigation into allegations of human rights violations in Kashmir (would have perforce focused primarily on IOK given the scale of the violations there)

Two: Draw attention on all international forums dealing with human rights as well as legal forums, to the human rights violations by India in IOK as identified in the Report, which are in violation of the Geneva Conventions of 1949 and customary International Humanitarian Law.

Three: With the Report refreshing the memory of the international community on Kashmir, Pakistan should have reaffirmed at all forums the continuing legitimacy of the Kashmiris struggle for self-determination. It seems Pakistan’s hidebound bureaucracy has failed to highlight to previous decision-makers, or perhaps they themselves are not aware, that even after 9/11, the principle of self-determination has been recognized as distinct from terrorism – the Almaty Declaration of 4 June 2002 reaffirmed its commitment to the right of self-determination for people remaining under foreign occupation (II:15). This Declaration was adopted by the Heads of State/Government of Member States of the Conference on Interaction and Confidence Building Measures in Asia (CICA). Both Pakistan and India are parties to this Declaration. Not only does the Declaration reaffirm the principle of self-determination, it emphasizes that this principle must be exercised “in accordance with the UN Charter and international law”. Non-fulfillment of this will pose a threat “to regional and international peace”. For Pakistan, what could have been a clearer reaffirmation of its position on the Kashmir dispute?

Having studied a number of these models the one having some relevancy for the Kashmir dispute was The Good Friday Agreement (Northern Ireland) which resolved the Northern Ireland conflict.

Pakistan should also not be hesitant in reiterating the UNSC resolutions on Kashmir and stating their linkage to similar UNSC resolutions on East Timor (UNSC Resolution 384 of December 1975 and UNSC Resolution 389 of 1976), which were enforced in 1999 leading to East Timor’s independence from Indonesia through an UN-conducted plebiscite. It was not that Indonesia wanted this but it was pressured, especially by the US, into conceding to the plebiscite. While the struggle against Indonesian occupation was going on by the East Timorese, their leaders, Jose Ramos-Horta, and Bishop Carlos Ximenes, were awarded the Nobel Peace Prize in 1996. It is crucial to remind the world of the parallels between Kashmir and East Timor at all diplomatic forums including bilaterally by our diplomats in the countries they are serving in. Unfortunately, our state and successive governments have chosen to remain ignorant of this linkage.

In fact, the case of the Kashmiris before the UN is even stronger because the occupying power itself took the dispute to the UN under Chapter VI: Pacific Settlement of Disputes. So both Pakistan and India agreed to have UN intervention and to the plebiscite.

Four: In the wake of the Report, Pakistan should have immediately demanded and should still demand that the UNSC insist on the return of UNMOGIP and other independent observers into IOK.

Five: Most important, this was the time for the government to present a blueprint for conflict resolution premised upon the principle of self-determination and a plebiscite. At the end of the day, Pakistan cannot simply continue to pay lip service to UNSC resolutions and the principle of self-determination. Nor can it move away from the UNSC framework on which its legitimacy as a party to the dispute rests. It is unfortunate that the State and successive governments have failed to work on a proper blueprint for conflict resolution on the Kashmir dispute within the framework of these resolutions and the self-determination principle. The Musharraf four points (which were never discussed or worked out in detail before being made public) were a non-starter because they failed to remain within this legal framework. Other “backdoor” diplomacy solutions have primarily rested on some sort of arrangement that seeks to legitimise the LOC as the border – not realising that the LOC is the problem and cannot become the solution.

Yet, there exist today a variety of conflict resolution models that have been successfully adopted in different parts of Europe where territorial disputes linked with the issue of self-determination prevailed. There was a short period a decade or so ago when the Europeans were even advocating different European models as viable for the settlement of the Kashmir dispute.

Having studied a number of these models the one having some relevancy for the Kashmir dispute was The Good Friday Agreement (Northern Ireland) which resolved the Northern Ireland conflict. This Agreement was plugged actively by the US, which put pressure, especially on the UK, in order to resolve the Northern Ireland conflict.

This model has a direct relevance to the case of Kashmir because it is premised on two interrelated principles. One, it recognizes “the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland” (that is going with the Republic of Ireland). There is also a provision for a periodic holding (every seven years) of a referendum in case the people of Northern Ireland appear to change their minds. Two, that de-weaponisation will follow the implementation of the settlement. Also, through this Agreement, the Government of Ireland Act of 1920 was repealed. So the agreement allowed for States Party to make legal, Constitutional adjustments post-the Agreement.

The Agreement is an international agreement between the British and Irish governments with two components: the legal agreement between the UK and the Republic of Ireland; and a lengthier agreement signed between eight political parties involved in the Northern Ireland conflict and the two governments (UK and Irish). While the agreement between the two governments is the actual legal agreement, it incorporates, in its Schedules, the two governments’ agreement with the eight political parties.

It is the principles underlying this settlement that are extremely relevant to Kashmir and need to be the starting point of any substantive solution relating to this dispute. In fact, out of all the conflict resolution models, this is the only one that is premised on the principle of the right of self-determination and not merely territorial control. Equally important, Pakistan has to remember its legitimacy as a party to the Kashmir dispute rests entirely on UNSC resolutions so any solution, which Pakistan puts forward, has to be within the UNSC resolutions’ framework and that is premised on the principle of self-determination.

It is unfathomable why the Pakistani State has failed to move on this unless the assumption has been to simply manage the conflict rather than resolve it. After all, in a tunnel-vision approach, once Kashmir is resolved, both the Pakistani and Indian States will have to revisit their investments in the hostility paradigm. However many critical issues remain fluid for Pakistan until the Kashmir dispute is resolved – including the status of Gilgit Baltistan (previously referred to as the Northern Areas) and the international border between Pakistan and China. In the 1963 Border Agreement between Pakistan and China Article 6 clearly stated the following:

“The two parties have agreed that after the settlement of the Kashmir dispute between Pakistan and India, the sovereign authority concerned will reopen negotiations with the Government of the People’s Republic of China on the boundary as described in Article Two of the present agreement, so as to sign a formal boundary treaty to replace the present agreement, provided that in the event of the sovereign authority being Pakistan, the provisions of the present agreement and of the aforesaid protocol shall be maintained in the formal boundary treaty to be signed between the People’s Republic of China and the Islamic Republic of Pakistan.”

Dr Shireen Mazari

These issues need to be resolved on a permanent basis so that the state of Pakistan has legal clarity regarding its borders.

So Pakistan needs to, as point five, move to suggesting a dialogue on Kashmir at two levels: One, with India; and, two, with India and the Kashmiri groups involved in the struggle against occupation as well as the pro-India groups in IOK and the political groups in AJK and GB. So there would be parallel tracks of dialogue. Initially there could be three different tracks: Pakistan and India; Pakistan and the AJK/GB political stakeholders plus the APHC reps; India and the IOK political stakeholders plus the APHC. The last two tracks could then merge into one for an agreement to be signed which would become part of the schedule of the main actual legal agreement between Pakistan and India. The entire set of agreements would comprise a holistic international agreement.

Given that any conflict resolution proposal would need consensus from all the stakeholders from the Pakistani and Kashmiri sides, within these broad parameters of a framework in which Pakistan can advocate resolution of the Kashmir dispute some intermediate steps would also be required as dialogue/negotiations commence or even before negotiations can commence:

First: Ask UN to establish a monitor of all Kashmiris eligible to participate in plebiscite.

Two: Demilitarisation of AJK and IOK.

Three: a Referendum Committee to define geographical parameters of the disputed territory.

Only when these steps are in place can the substantive dialogue begin. It will not be easy but it needs to begin. Pakistan should put forward this proposal before the UN SC and in capitals abroad to show its intent for resolving the Kashmir Dispute.

Annexure

European Conflict Resolution models that were examined but not found relevant to the Kashmir Dispute

The Aland Island case

For many years Pakistanis visiting Sweden were cited the case of the Aland Islands, which were part of the territory ceded to Russia by Sweden in September 1809, and they became part of the semi-autonomous Grand Duchy of Finland. From 1917, the primarily Swedish-descent residents of the Islands kept up efforts to have the Islands ceded back to Sweden. A petition for succession from Finland was signed by 96.2 % of Aland’s native adults. Swedish nationalism grew as anti-Swedish sentiment grew in Finland as a result Finland’s own struggle to retain its autonomy in the face of Russification. Finland was not prepared to cede the Islands but was prepared to give them an autonomous status instead of renewing them. The dispute was brought before the League of Nations in 1921 and the decision was to allow Finland to retain sovereignty over the province but within this framework, the Aland Islands were made an autonomous territory. So Finland had to ensure that the Aland residents maintained the Swedish language as well as their own culture and heritage. Also, the Islands were to be given a neutral and demilitarized status. Aland has its own flag, issues its own postage stamps, has its own police force and is a member of the Nordic Council. Having visited Aland in 1989, one saw the whole arrangement for oneself. Obviously it works well for Sweden and Finland, but how relevant is this example in the context of Kashmir.

The relevancy is simply not there. To begin with, Kashmir was not ceded to India through a treaty between Pakistan and India in the aftermath of a war. Geographically, also, islands can be granted autonomy and be demilitarized more rationally than land-locked territories contiguous to both antagonists. Also, and most importantly, the Kashmir issue is not a territorial dispute but an issue of the right of self-determination for the people of Kashmir – a right given to them by the international community through UNSC resolutions (not just by UNSC resolutions but by international legal instruments and declarations, both binding and non-binding, as well as customary international law). The Aland solution would mean continuation of Indian sovereignty over Kashmir – something the Kashmiris have never accepted. The only relevancy of the Aland Islands case is that it went before the League of Nations, which offered a solution and both parties to the dispute accepted the solution. India took the Kashmir issue to the UNSC under Chapter VI of the Charter, relating to Pacific Settlement of Disputes. This signified that India accepted Kashmir as a dispute between itself and Pakistan and sought a peaceful resolution through UN intervention. It did not appeal to the UN under Chapter VII, accusing Pakistan of aggression against Indian “sovereign” territory. So the historical context of Kashmir and the prevailing dynamics make the Aland Islands solution inapplicable in this region.

The Trieste case

In 1921 Italy had formally annexed parts of  Austria-Hungary that it had captured in World War I, including the city of Trieste. The area’s population comprised mainly Slovenians with some Croats and a large number of Italians who lived mainly in the city itself. After World War II the area was claimed by Yugoslavia, mainly because the population outside the city of Trieste was predominantly Slovenian. The Western powers opposed this claim. Hence, the Free Territory of Trieste was established after World War II in 1947, under the protection of the UNSC, as a neutral state that comprised the city of Trieste, a narrow strip of coastal territory connecting it to Italy, Slovenia and Istria. However, when the UNSC was unable to agree on a governor for the Territory, Anglo- American forces occupied Zone A, which comprised Italian-speaking city of Trieste and its surrounding areas, while the Yugoslavs occupied Zone B, which was the remainder of the Free Territory. Tension between Italy and Yugoslavia continued till 1954 when a compromise solution was reached in the Treaty of Osimo. The territory was formally divided along the zone border and basically this amounted to a partition of the Free Territory, which then ceased to exist.

Again, this was primarily a historical territorial dispute between two member states of the UN, so it is not applicable to the Kashmir dispute. Also, a Trieste-type solution basically means legitimisation of the existing status quo and division of Kashmir – which would not address the root cause of the problem: that of the right of self-determination. Nor does the Trieste-type solution allow for the option of a future referendum.

The Andorra case

This is a lesser-known case, but is extremely interesting and may well have a greater relevance within the Kashmir context. Andorra is located in the Pyrenees Mountains on the French-Spanish border and is a parliamentary co-principality comprising the Bishop of Urgel (Spain) and the French President. This joint suzerainty (but not sovereignty) of the French state and the Spanish Bishops of Urgel has prevailed since 1278. Andorra has closer ties to Spain with Catalan as its official language and has, over the decades, become an important tourist and winter sports destination as well as a wealthy international financial centre because of its banking facilities, low taxes and no customs duties. In 1993, a constitution was ratified and approved which made Andorra a sovereign parliamentary democracy that retained the “co-princes” as heads of state, but the head of government retains executive power. It became a member of the UN in 1993 as a sovereign state. The “two princes” serve coequally with limited powers that do not include veto over government acts. They are represented in Andorra by a delegate. Defence of the country is the responsibility of France and Spain and Andorra has no currency of its own but uses that of its two neighbours – which effectively now means a single currency, the euro.

The Andorra model has a certain attraction, especially for those who advocate the Independence option for a United State of Jammu and Kashmir. It also offers India a less unpalatable option than seeing the whole of the State of Jammu and Kashmir becoming a part of Pakistan – which would in all probability still be the outcome if a general plebiscite was held in that State. But the stumbling block is on the issue of Independence – which both Pakistan and India have not conceded to, as this option is not part of the UNSC resolutions. Interestingly, some Kashmiris are also now referring to the Andorra model. It certainly needs greater exploration, with alternatives to full sovereignty in the form of UN trusteeship for a limited period, and so on. (Courtesy: Strategic Studies Institute Islamabad, Pakistan)