Kashmir Conflict in Milieu of International Law

Since the 1947, the Kashmir dispute between India and Pakistan has become an intractable one. They have fought four wars, but conflict could not be resolved through pacific settlement of dispute and even through the use of force from both sides. Kashmir conflict heavily depends on the legacy of colonialism; both states have a claim on same territory. This paper is designed to explain the situation in the context international legal system and vice versa. To accomplish this goal, it analysis the genesis of the conflict and its frequent lapses into crises to explain why it has become so intractable? The study peeps into some of the attempts made by international community to settle the conflict and why they have failed? In the context of dispute, the effectiveness of international law and weakness of international legal system have been highlighted. Consequently, the role of the United Nations in resolving territorial dispute has been examined and dispute itself is the litmus test for international law thus it approaches the limitations of international law. International law and politics infuse and shape each other [1] is the argument anticipates UN base Kashmir resolution

At the time of partition of the Indian subcontinent, the state of Jamu and Kashmir was one of the princely that face the choice of either to join India or Pakistan. The accession of these princely states is based on the principles of geographical contiguity either and self-determination. The Kashmiri maharajah, Hari Singh, a Hindu leader in a predominantly Muslim state, he is given order by the British government to choose between Pakistan and India, he purposely delays decision. Hari Singh resists the pressure not to join either Pakistan or India hoping to get independence or autonomy from both countries. He gets signed a standstill agreement with Pakistan on August 16 and tries to sign a similar agreement with India. However, following the declaration of independence, communal rioting erupted in Punjab between the Hindus and Sikhs on one side and Muslims on other side. In September, the rioting spilled into Kashmir against the Muslims. The Muslims in the Western part of Kashmir rebelled against the Maharaja and establishes their own independent (Azad) Kashmir government. Maharaja was approached Acharya Kriplani and The rulers of Patiala they tried to induce him to sign the instrument of accession with India [2] .

On October 22, 1947, the tribesmen (mostly Mahsuds and Afridis) of the Northwest Frontier Province (NWFP) and many agents of Azad forces [3] invaded Kashmir and they intrude into Kashmir near state’s capital city, Srinagar. They try to force the rump state to accede with them. It looked possible with help of tribesmen the control of entire Kashmir may have come under Pakistan. Hari Singh sought India’s military assistance, but India refused to help unless the Maharajah signed the instrument of accession, in exchange for military support and creates an emergency government headed by Sheik Abdullah. Singh signed the accord on October 27 and on the same day Indian armed forces entered Kashmir to repel the raiders.

In response on the evening of October 27th, the Governor-General Mohammed Ali Jinnah ordered Lt. General Sir Douglas Gracey, chief of the Pakistan army, to dispatch Pakistan regular troops into Kashmir, but Field Marshall Auchinleck, (the Supreme Commander during partition period) persuaded him to withdraw his orders. Volunteers from Pakistan regular troops and tribesman transfer the military supplies to the raiders. On January 1, 1948, India’s Prime Minister Jawaharlal Nehru following the advice of British Governor General Lord Mountbatten and contrary to the wishes of his Deputy Prime Minister Sarder Patel, lodged a complaint with the UN Security Council invoking Articles 34 and 35 of the UN Charter that called for a peaceful settlement of disputes over Kashmir. India blamed that Pakistan had assisted the raiders to invade by providing military equipment.

Geographically, culturally, ethnically and historically Kashmire was linked with Pakistan. Massacres of Kashmiri Muslims invoked the tribesman of NWFF to invade in order to safe them and liberate. In the UN, Government of Pakistan also challenged the the validity of the Maharaja’s accession to India and requested that the Security Council appoint a commission to secure a cease-fire, and conduct a plebiscite to determine Kashmir’s future. On January 20, 1948, the Security Council established a three-member UN commission on India and Pakistan (UNCIP) [4] to send them to Kashmir to investigate the situation and exercise mediation. On April 21, the Council expanded the commission to five and authorized it to restore peace and arrange for a plebiscite after the withdrawal of tribal troops. the UNCIP on August 13, passed a resolution calling both on India and Pakistan to conduct a plebiscite after they agreed to a cease-fire and after Pakistan’s regular troops and tribesmen were completely withdrawn. The cease-fire went into effect on January 1, 1949. Based on its resolution of August 13, 1948, the UNCIP sent a Monitoring Group for India and Pakistan (UNMGIP) to the region on January 24, to monitor the cease-fire line. A U.N. cease-fire leaves India with two-thirds of Kashmir and the U.N. calls for a plebiscite yet to occur until today.

Fleet Admiral Chester Nimitz an American was appointed as the plebiscite administrator by the UN Secretary General, but he could not assume his functions as India and Pakistan objected to its implementation based on their varying interpretations of the UNCIP resolutions on the issue of demilitarization.

In December 1949, the Security Council assigned McNaughton of Canada to negotiate a demilitarization plan in consultation with India and Pakistan. Pakistan agreed to simultaneous demilitarization but India chose to ignore it by raising moral and legal issues about the plan. Without India’s support the initiative failed [5] .

On March 14, 1950, the Security Council passed another resolution to follow up on McNaughton’s proposals and appointed the noted Australian judge, Sir Owen Dixon, as UN representative to replace the UNCIP. In September 1950, Dixon suggested a proposal limiting the plebiscite only to the Kashmir Valley of the predominantly Muslim population, which both countries rejected. In April 1951, the Council appointed Dr. Frank Graham, former US Senator, as UN representative. Between December 1951 and February 1953, Graham frantically tried to convince both India and Pakistan to accept his Secretary Council-supported demilitarization proposals that required the reduction of the military presence of both countries in Kashmir and Azad Kashmir preceding the conduct of a plebiscite but to no avail.

After the military takeover by General Ayub Khan Pakistan involvement in international politics increased and the hostility between India and Pakistan increased. Following Pakistan’s joining of the US-led Baghdad Pact in April 1954, and the South East Asian Treaty Organization (SEATO) in September 1956, Nehru argued that Pakistan’s alliance with the US, has rendered all plebiscite agreements in Kashmir obsolete [6] .

Elections are held for a Jammu and Kashmir Constituent Assembly in order to legitimize Sheikh Abdullah's regime and to draft a constitution for Jammu and Kashmir. Subsequently, following the February 1954 States’ Constituent Assembly’s declaration that Kashmir’s accession to India was final; India took the position that the Assembly’s action was equivalent to a plebiscite. Pakistan and the Council rejected that assertion. Later on, Sheikh Abdullah, the Kashmir chief minister and long-time supporter of Indian rule of Kashmir, is ousted and arrested for treason by the Indian Prime-Minister, Jawaharlal Nehru, for speaking out about a Kashmir independence from both Pakistan and Kashmir. Abdullah later on said “our dispute with the government of India is not accession but it is the quantum of autonomy [7] "

A legal solution based on arbitration was possible in 1957 when UNSC reaffirmed its earlier resolution that require the plebiscite. Gunnar Jarring was appointed by UN to mediator between India and Pakistan. On his proposal to demilitarization Pakistan Prime Minister Sir Feroz Khan Noon’s declared that his country was willing to withdraw its troops from Kashmir to meet India’s preconditions, the Security Council once again sent Frank Graham to the area. He tried to secure an agreement between India and Pakistan but India again rejected it. In March 1958, Graham submitted a report to the Security Council (CSC) recommending that it arbitrate the dispute but as usual India rejected the proposal [8] .

Conflict over Kashmire resulted in war between two countries in 1965. As the clashes continued, the UN Security Council, supported by the United States, Britain, and the USSR, called for an immediate cease-fire, which India and Pakistan accepted on September 6. In January of 1966, at the invitation of Soviet Premier AlexseiKosygin, both Shastri and Khan met in the city of Tashkent (Republic of Uzbesistan) and signed the agreement known as the Tashkent Declaration.

The summit focused on the relations between the two Nations after which the Prime Minister of India and the President of Pakistan agreed to exert more effort to promote good neighborliness, and restrain from the use of force in accordance with the UN Charter. More specifically, the two Nations agreed to withdraw their troops and to observe a cease-fire-line as they were before the 5th of August 1965 [9] .

Simla Agreement: In 1971 India and Pakistan fought a third war over Bangladesh’s Independence. The second summit held on the 3rd of July 1972 and labeled as the Simla Agreement. Under this agreement both oth governments aspired to mutually resolve the conflict and work toward a harmonious relationship. Both reiterated their commitment to the UN Charter as they had under the Tashkent Declaration including the resolution of their differences via peaceful means and agreed to refrain from the threat or use of force [10] .

Under this agreement, India and Pakistan, committed themselves to “settling their differences through bilateral negotiations or by any other peaceful means mutually agreed upon between them," and that the “basic issues and causes which bedeviled the relations between the two countries for the last 25 years shall be resolved by peaceful means. [11] " The agreement became the basis for the renewal of official relations between the two countries consequently thus diluting role of third party.

The two parties agreed to adhere to the “Line of Control" (LoC) and not to alter it “irrespective of mutual differences or legal interpretations". Additionally, they agreed to continue consultations until normal relations resumed. The cease-fire line of the Tashkent Declaration termed as line of control (LOC) in Simla Agreement as the de facto line of control and India looked interested in maintaining territorial status quo [12] .

Post Shimla Agreement emphasis was on bilateral talk on dispute. Though the agreement gave the Indians opportunity to aside UN and third party mediation or arbitration on Kashmir issue but no serious dialogue between two states happened during 38 years. Instead of initiate bilateral talk, Indian government starts maneuvering in internal politics of Kashmir so that to make Indian control legitimize over Kasmir. On February 25, 1975, Abdullah became the Chief Minister of the state and in 1982 his son Dr. Farooq Abdullah, succeeded him. But Farooqand Maulvi Farooq of the Awami Action Committee demanded autonomy, the kind that had been promised in the 1952 Delhi Agreement to his father. the 1983 legislative elections won by him Upset by his demand for autonomy, Mrs. Gandhi intervened in the domestic politics of the state and dismissed Abdullah’s government in 1984, The outbreak of a Muslim uprising in 1989 human rights violations increase in the Valley and Jammu [13] .

The armed race continued and both countries acquire the nuclear arsenal. Pakistan covertly tests nuclear technology in 1989 and in this Pakistan achieved deterrence against India. In May 1990, Indo-Pak Conflict In the midst of the Kashmir Muslim insurgency, tensions between India and Pakistan became so intense that the Pakistani military headed by General MirzaAslam Beg was willing to use nuclear weapons to “take out New Delhi."

Lahore Declaration: Lahore Declaration of 21 February 1999, Lahore Declaration reaffirmed the determination to implement the Simla Agreement and their commitment to nuclear disarmament and nonproliferation. The two states agreed to take step to reduce the risk of accidental or unauthorized use of nuclear weapons. In addition, the Foreign Secretaries of both countries signed a Memorandum of understanding agreeing to engage in consultations on security concepts and nuclear doctrines in order to avoid conflict [14] .

India once again carried out nuclear tests in series 11-13 May 1998 and thus non proliferation regime becomes irrelevant in wake of these tests. Pakistan was left with no choice and consequently, on 28 May 1998 announces the nuclear test and balanced the score card. Much of the danger of the retrograde conflict over Kashmir stems from its potential to spark either a much broader conventional war or even a nuclear exchange. India and Pakistan have a dangerous disconnect on the nuclear issue driven both by very poor communication between the capitals and by strikingly different nuclear doctrines. In a recent study, the U.S. Defence Intelligence Agency estimated that more than twelve million Indians and Pakistanis could be killed – and another seven million injured – in a nuclear war.

Pakistan’s proxy war in Kashmir assumed a new dimension in 1999. In February of that year, Prime Minister Nawaz Sharif and Indian Prime Minister Atal Vajpayee agreed on a number of confidence building measures at a summit in Lahore. Vajpayee and Sharif appeared to be on the verge of an agreement on Kashmir. According to Pakistan Foreign Secretary Naiz Naik, the Indian Prime Minister agreed not to call Kashmir an integral part of India, while Sharif consented not to seek a resolution of the dispute on the basis of UN Security Council resolutions for a plebiscite in Kashmir. If implemented, the deal would have most likely entailed Indian and Pakistani recognition of the Line of Control as the permanent border [15] .

Kargil war during May to July 1999 undermined the Indo-Pak relations. Mujahideen infiltrated six miles into the India-held Kargil region of North Kashmir. occupied more than 30 well-fortified positions located atop the most inhospitable frigidly cold ridges, at 16,000 and 18,000 feet above sea level, in the Great Himalayan range facing Dras, Kargil, Batalik, and the Mushko Valley sectors stretching covering over 30 miles.

Kargil war was a miscalculation and misadventure by Pakistan army; it defamed and isolated Pakistan in international community. It water downs aspiration of Lahore Declarations and also pointed out a lack of coordination between Pakistan army and government. At last it enhanced risk of war in future and also proved that nuclear deterrence.

Musharaf Government was able internationalize the conflict by showing full commitments to resolve it. Government also prosed the third party mediation which emphatically resisted by India. Musharaf Government claimed no support to Mujahadeens campus which may facilitate cross-border terrorism. The government declared that the international community can verify and monitor independently an end to Pakistani support for militant groups and their activities [16] .

Since the 13 December 2001 terrorist attack on the Indian parliament, Pakistan has strongly condemned all acts of terror, including those committed in the name of Kashmir. President Musharraf has also pledged to end all cross-border infiltration. Indeed, Pakistan rejects and condemns terrorism in all its forms and manifestations. Pakistan will not allow its territory to be used for terrorist activity anywhere in the world. No organization will be allowed to indulge in terrorism in the name of Kashmir. Most of the terrorist attacks including attack on Indian Parliament, initially and traditionally, Indian government blamed Pakistan and later on it was revealed that perpetrators were Hindu terrorist organizations, Indian Kashmiri and Bangladesh Based organizations [17] .

Failure of Agreements and Rejection of Mediation: There have been numerous unsuccessful agreements between India and Pakistan. Both countries agreed to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed between them.

Both India and Pakistan failed to adhere the agreements. The Tashkent Declaration, Simla Agreement and Lahore Declaration and Agra Summit were meant to ease the tension between India and Pakistan and more importantly to resolve the Kashmir question. However, the two parties have continued to shift the blame on each other. Pakistan blames India for violation of Simla Accord when Indian troops occupied Siachen area in 1984 [18] . For Pakistan it was a clear breach of the Simla agreements. Anthony Davis and Ajay Singh, journalists with Asia Week, claim that the error was in the Simla agreement itself. The agreement failed to include the Siachen glacier area when drawing up the LoC. Vienna Convention on the Law of Treaties Of 1969 in article 48 provides that “ A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty" [19] .

The Simla Agreement does not prevent rising of Kashmir issue in the UN. It also does not restricts both countries for seeking the bilateral resolution only. Para 1 of Simla agreement specifically provides that the UN Charter “shall govern" relations between the parties. Para 1 (ii) providing for settlement of differences by peaceful means.

Articles 34 and 35 of the UN Charter specifically empower the Security Council to investigate any dispute independently or at the request of a member State. These provisions cannot be made subservient to any bilateral agreement.

According to Article 103 of UN Charter, member States obligations under the Charter primacy over obligations under a bilateral agreement. Presence of United Nations Military Observes Group in India and Pakistan (UNMOGIP) at the Line of Control in Kashmir is a clear evidence of UN’s involvement in the Kashmir issue.

Rejection of Mediation: Despite the various conflict resolution prototype and formulas , there have been numerous mediation attempts in the life of the Kashrnir conflict, resulting in ceasefires (the UN's early work through the United Nations Commission for India and Pakistan - UNCIP), and temporary de-escalation of tensions (through mediation by the USSR in 1965 and by the US in 1990). India resists the third party involvement and prefers to resolve the Kashmir dispute bilaterally and not under the aegis of any international organization [20] .

Both bilateral negotiation and mediation have been proven almost completely unsuccessful in creating lasting joint understandings between India and Pakistan over Kashmir. Why India rejects the role of international organizations like UN or any other third party? In bilateral negotiation India considers itself in a dominant position in the region, and has perhaps a stronger leverage in bargaining position as it was after 1971 war. Another consideration for bilateral negotiations is avoiding pressure to concede to an unfavorable settlement for Indian. Right of self-determination by Kashmiree people is equally unpalatable for Indian Government. In bilateral agreement India has able to convert cease fire line into the LOC as the de facto line of control and looks interested maintaining this status quo. Finally, India fears that international pressure may be applied to force India into an unfavorable settlement.

Self-Determination: Under the principle of self-determination it is the right of every nation to establish its own territorial sovereignty. It’s the right of each population to decide often through plebiscite to accede to any state according to their wishes. Article 1(2) of the Charter of the United Nations 1945 states that the purposes of the UN is to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace. Almost all human rights treaties recognize the doctrine of self-determination. The Common article 1, paragraph 1 of the Covenant on Civil and Political Rights, the International Covenant on Social and Economic and Cultural Rights provides that all people have the rights of self-determination, by virtue of that right they freely determine their political states and freely determine their economic, social and cultural development. Under these legal instruments the people of Kashmir have the ability to determine their own political future.

Furthermore the Universal Declaration of Human Rights states in preamble: ‘Whereas it is essential if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’ Furthermore, article 1 of the Universal Declaration of Human Rights declares: ‘All human beings are born free and equal in dignity and rights. They are endowed with reasons and conscience and should act towards one another in a spirit of brotherhood. [21] ’ In addition under international law, all peoples have a right to self-determination. This reflects most perfectly the law’s self-image as a guarantor of peace, human rights and democracy. If we look into the situation in Jammu and Kashmir, a general condition of lawlessness and mass human rights violations exist mainly Indian-held Kashmir [22] .

Atrocities such as shootings into unarmed crowds of demonstrators and firing on funeral processions occur regularly, despite the prohibiting of arbitrary deprivation of life under any circumstances under International human rights law. The government of India is a party to the International Covenant on Civil and Political Rights (ICCPR). Article 6 of the ICCPR expressly prohibits derogation from the right to life. Thus, even during times of emergency, no one shall be arbitrarily deprived of his life. The ICCPR also prohibits torture and other forms of cruel, inhuman and degrading treatment. Articles 4 and 7 of the ICCPR explicitly ban torture, even in times of national emergency or when the security of the country is threatened. The Indian armies special task force (STF), Border security force (BSF), and state sponsored paramilitary groups and village defense committee - the principal government forces operating in Jammu and Kashmir, have systematically violated these fundamental norms of international human rights law [23] .

Now it is the responsibility of international community to assist and urge India and Pakistan to fulfill the obligation under the principle of self-determination. Because of the deadlock situation in bilateral negotiation both countries should aim to opt for hard legal process to solve the Kashmir dispute.

Pakistani ambassador to the UN, Mr. Munir Akram, emphasized in his speech to the UN General Assembly on the 31st of October 2002, that India is in breach of UN Resolution 47 of 1948 and 80 of 1949 and several subsequent Security Council resolutions and thus, is in violation of its, obligations under Article 25 of the UN Charter and consequently India deserves to be subjected to international sanctions until the instruments are adhered to [24] .

On the failure of bilateral agreements Vienna convention on law of treaties terms it as invalid agreement and prescribes other means of settlement of disputes i.e. judicial settlement, arbitration and conciliation. Under paragraph 3 of article 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed:

(a) any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration;

(b) any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in part V of the present Convention may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations [25] .

Conclusion: India has frequently violated international law. Firstly by wrongful the accession of princely states including Kashmir. Hari Singh resists joining either Pakistan or India hoping to get autonomy from both countries. Under Indian pressure Singh signed the accord with India so that to get military support against the raiders. Secondly, demilitarization solution on December 1949 Pakistan agreed to simultaneous demilitarization but India chose to ignore it by raising moral and legal issues about the plan [26] .

Thirdly Elections are held for a Jammu and Kashmir Constituent Assembly in order to legitimize Sheikh Abdullah's regime the February 1954 States’ Constituent Assembly’s declaration that Kashmir’s accession to India was final; India unilaterally took the position that the Assembly’s action was equivalent to a UN plebiscite. Pakistan and the Security Council rejected that assertion. Later on, Sheikh Abdullah was arrested for treason by the Indian Prime-Minister, Jawaharlal Nehru, for speaking out about a Kashmir independence from both Pakistan and Kashmir. [27] 

Fifthly, A legal solution based on arbitration was possible in 1957 when UNSC reaffirmed its earlier resolution that require the plebiscite. On Gunnar Jarring proposal for demilitarization, Pakistan Prime Minister Sir Feroz Khan Noon’s declared to withdraw its troops from Kashmir to meet India’s preconditions, the Security Council Frank Graham tried to secure an agreement between India and Pakistan but India again rejected it. In March 1958, Graham submitted a report to the Security Council (CSC) recommending that it arbitrate the dispute but as usual India rejected the proposal [28] .

India violated Simla Agreement by occupying Siachen area in 1984. For Pakistan it was a clear breach of the Simla agreements [29] . Anthony Davis and Ajay Singh, journalists with Asia Week, claim that the error was in the Simla agreement itself. The agreement failed to include the Siachen glacier area when drawing up the LoC. Vienna Convention on the Law of Treaties Of 1969 in article 48 provides that “A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty" [30] .

Fourthly the 1983 legislative elections won by Maulvi Farooq of the Awami Action Committee he demanded autonomy, Mrs. Gandhi intervened in the domestic politics of the state and dismissed Abdullah’s government in 1984 [31] .

Sixthly, India once again carried out nuclear tests in series 11-13 May 1998 and thus non proliferation regime becomes irrelevant in wake of these tests. Kargil war during May to July 1999 undermined the Indo-Pak relations. Kargil war was a miscalculation and misadventure by Pakistan; it defamed and isolated Pakistan in international community.

Seventhly, the principle of self-determination stipulates the right of every nation to be a sovereign territorial state. The principle of Self-Determination is commonly used to justify the aspirations of minority ethnic groups. Article 1(2) of the Charter of the United Nations and almost all international human rights treaties i.e. the International Covenant on Civil and Political Rights, and the International Covenant on Social, Economic and Cultural Rights. The people of Kashmir under these legal instruments qualify the criteria to decide according to their own wishes that is plebiscite.

India’s hegemonic role in South Asia and policy on Kashmir is better understood by assertion made by Hans Morgenthau’s about hegemonic powers that the constant pursuit of power is considered central to explaining state behavior and the existence of a balance of power is regarded as a necessary condition for international law. E. H. Carr argued that law within states was a reflection of the ‘policy and interests of the dominant group in a given state at a given period’ [32] .

After the failure of bilateralism, mediation and the rejection of various conflict resolution prototypes, the International Law provides the solutions to accomplish settlement that is third party, as arbitrator and or judicial means of settlement of disputes by involving International Court of Justice. Judicial decision backed by binding nature of UN Security Council Sanctions may resolve the conflict. Ethical deliberation informs political action in which actors seek to license their interests and actions in terms of prevailing norms of legitimate agency and rightful conduct. NATO’s statement at the outset of the bombing campaign against the Federal Republic of Yugoslavia (FRY) is an example of such political action. When NATO declared that its ‘military action against FRY supports the political aims of the international community: a peaceful, multi-ethnic and democratic Kosovo in which all its people can live in security and enjoy universal human rights and freedoms on an equal basis [33] ’, it was engaging in instrumental political deliberation, and on launching its air campaign it was engaging in strategic political action.

Finally, it is recommended that the international community must remind India that if it would like to be recognized as a global player and wants to secure permanent seat in UNSC, then it must assume a greater responsibility respecting international legal norms and maintaining international security.