Published On: Mon, Jan 4th, 2021

The story of a quid pro quos on Kashmir

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Document II submitted by Pakistan to the United Nations Security Council on 15 January 1948 makes an overwhelming argument on behalf of the people of Jammu and Kashmir. It states that “the accession of the State to the Indian Dominion would be tantamount to signing of their death warrant.” India and Pakistan in their submissions to the UN Security Council on 1st January 1948 and 15 January 1948 respectively, have admitted that all engagements under article 33 of UN Charter had failed.

An examination of the debates at the UN Security Council reveals that all the methods provided under Article 33 of the Charter, for the pacific settlement of disputes namely, negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements have not been exhausted in respect of Kashmir dispute. India and Pakistan have not tried arbitration, judicial settlement, and resort to regional agencies or arrangements.

We find that the two countries have felt comfortable to work out a quid pro quo and not to disturb the status quo, by invoking article 103, which overrides on any bilateral agreement. The status quo has been disturbed by India on 5 August 2019 and we have yet to compose ourselves for a proportionate and pointed response. The quid pro quo between India and Pakistan has remained in force in an undeclared manner.

The argument and very widely rooted in the minds of people in Azad Kashmir, that all proceedings on Kashmir have been conducted under Chapter VI and therefore are not enforceable, has no merit. India has invoked article 35 in respect of threat to international peace and security. The consequence of that reference is the recognition of the Kashmiris right to self-determination. The latter falls under article 1 (2) of UN Charter and is the basis of the Charter. More so a noncompliance by a member state graduates into a reprimand, expulsion as a member from UN and enforcement.

There is no dispute about the fact that after the Indus-Water Treaty both countries focussed on the people living in India and Pakistan and the people of Jammu and Kashmir became a hostage of an undeclared quid pro quo. Delhi and Islamabad would nudge into each other’s ribs, not to hurt, but to remind each other about the cost in case of a breach.

Government of Azad Kashmir, which has entered into a constitutional arrangement with the Government of Pakistan under the Constitutional Act 1974, to discharge duties under UNCIP Resolutions, grew wiser and greedier and started bidding for her pound of flesh in this quid pro quo between India and Pakistan. It offered to go slow in her responsibility towards appointing a “Plebiscite” Advisor to advise the Government of Azad Kashmir and inter alia Government of Pakistan, on how best to institutionalise the work on “Plebiscite” as envisaged in UNCIP Resolutions. Muzaffarabad has continued to benefit from a quid pro quo with Islamabad from 1970. Section 8 of Azad Jammu and Kashmir Act 1970, also prescribes for the appointment of a “Plebiscite” Advisor.

The story of a quid pro quo is twisted, grisly and painful. The relationship between Srinagar and New Delhi was also regulated on a quid pro quo. However, the Srinagar Government decided to raise the bid through the State Autonomy Committee Report of June 2000, which challenged the veracity of Indian scope of accession. It paid the price for going slow from June 2000 on the report and allowed New Delhi 18 years to take a military action in Kashmir on 5 August 2019.

It would be regarded a shame that Islamabad could not engage Muzaffarabad and Srinagar under its responsibilities assumed under UNCIP Resolutions. Pakistan should have remembered that it had described accession to India as a “death warrant” in January 1948. Pakistan should have set her diplomatic compass accordingly. Unfortunately Srinagar-Delhi, Muzaffarabad-Islamabad and Islamabad-Delhi quid pros prevailed.

To give a semblance of seriousness to the bilateral engagements between Islamabad and Delhi, engagements were also worked out between Srinagar and Delhi, Hurriet and Delhi and Hurriet and Islamabad over a period of time. Srinagar and Muzaffarabad, have never worked with a degree of dedication and genuine desire, as a way forward with Delhi and Islamabad. The concealed instinct has always remained to befriend the two capitals and remain in power.

The grisly history of quid pro quos explains that Srinagar, Muzaffarabad and Gilgit went separate to play the Indian or Pakistani dulcimer at the cost of the rights movement of the people of Jammu and Kashmir. There was no demand from any quarter of the Jammu and Kashmir, for other remaining methods under Article 33 of UN Charter or to demand a demilitarization, to let the people adjust to a non-militarised habitat.

History will judge the Kashmiri leadership very unkindly for their non-interest, incompetence and infighting. India and Pakistan have admitted their failure of a bilateral engagement under Article 33 in January 1948. There was no reason to sit idle and see a quid pro quo being played under the garb of a bilateral engagement for 71 years until the Indian action of 5 August 2019.

Azad Kashmir politics has turned into a ‘dog in the manger’ and scares away Islamabad, whenever the latter considers a slap on the wrist. AJK politicians invoke the sacrifices of a generation, atrocities committed by 900,000 Indian soldiers and the plight of the people, to manage Islamabad. On examination one finds that Muzaffarabad, does not have anything to show that it cares or has any regard for the assumed duties under UNCIP resolutions.

Except the letter of 8th July 1948 addressed by the President of the Government of AJK to the Chairman UNCIP and a meeting with UNCIP in September 1948, there is nothing on record which could accredit AJK Government as having a sense of duty and sense of honour towards its people on both sides of the cease fire line. It has ill-behaved towards the people and institutions working to advance the rights movement of the people.

The author would like to render it for the information of people living in the three administrations, Kashmiris living in the four provinces of Pakistan, Kashmiri Diaspora, people of Pakistan and the future generations that the Government of Azad Kashmir has accrued a criminal liability from 1970 and a contempt of court from 2 April 1999, when High Court of Azad Kashmir decided the JKCHR writ petition on the appointment of a Plebiscite Advisor.

The sense of honour and sense of responsibility could be judged from the statements of the “Government of Azad Jammu and Kashmir and Azad Jammu and Kashmir Council that the proper time for the appointment of a plebiscite advisor shall be when the Government of India is prepared to extend cooperation for holding plebiscite in the State of Jammu and Kashmir. In the absence of cooperation from India the appointment of advisor at this stage shall incur huge expenditure which the Government of Azad Jammu and Kashmir cannot afford at this stage”. (Judgement on 2 April 1999 – Yearly Law Reporter 1999).In other words Government of AJK played a pauper to provide for the work on “Plebiscite”.

India replied on 5 August 2019 and sent Muzaffarabad and Islamabad, running helter-skelter. We have lost our moorings and continue to dither in finding an appropriate response to Indian aggression. Muzaffarabad and Islamabad were waiting for a box of chocolates and cooperation in 1999. India came up with a solution of her own and 2020 has passed by. OIC has yet to convene a special session on Kashmir. UAE on the contrary hosted a Conference on 5 March 2020 and Kashmir was discussed as an ‘internal matter of India”. We have to restore a sense of duty and sense of honour in ourselves and in our work. The story of a quid pro quo on Kashmir has to end.

The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.


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