by Brian Cloughley

The author is a South Asia defence analyst and author of ‘A History of the Pakistan Army’

The concept of the sub-continent being tension-free and commerce-friendly is truly enticing and I have discussed it with many people, including ten years ago the then President of the Karachi Chamber of Commerce. His words and sentiments have stayed in my mind because whenever there is an increase in friction between India and Pakistan I think of what might have come to pass had his ideas — and those of many others of similar persuasion — been possible to transform into practicalities. He painted a glowing but realistic picture of the likely advantages to both countries of creating a genuine free trade zone, if only there were no confrontation to contend with.

Of course, he said, some of Pakistan’s manufacturing businesses would suffer, for obvious reasons, but given reasonable notice of trade intentions, providing opportunities for restructuring, there would be acceptable consequences in some areas, which he hoped (possibly a trifle over-optimistically) could be offset by action on the part of government and  private enterprise.  The other side of the coin was that very many Pakistani enterprises would prosper enormously, providing much-needed employment and associated benefits. It wasn’t all too good to be true ; but it was too good to penetrate the minds of those who seek perpetual confrontation.

In essence there isn’t much to be confrontational about, except the festering sore of Kashmir concerning which successive governments of both countries have minds so firmly closed that they would make a fortune selling the superglue that fixed them in their uncompromising positions.

Make no mistake about it : Pakistan’s stance on Kashmir is justified, not least because the allocation process, stage-managed by the Viceroy, Lord Mountbatten, was a charade.  It made no sense for a Hindu Maharajah of a Muslim majority region to be able to declare accession to India on a whim — any more than it did for the Muslim ruler of the Hindu majority state of Junagadh to declare for Pakistan.  The latter’s shaky regime lasted only a short time, and the Indian army finally put paid to it by invading his state.  There was no document of accession. And it is interesting that no member of the public has ever seen the original Kashmir accession document. Last time I was in Delhi I asked specifically to be able to view it but my application, as with requests of everyone else who has wanted to do that, was politely refused.

To quote the historian Victoria Schofield, “To date no authentic original document has been made available . . .  By stating that the Instrument of Accession was signed on 26 October, when it clearly was not, Pakistan believes that India has not shown good faith and consequently that this invalidates the Instrument of Accession.”  The reason for this is that India claims that Indian troops arrived to take over Kashmir after the document was signed — but they didn’t.

As Schofield relates, “Official Indian accounts state that in the early hours of the morning of 26 October, [Maharajah] Hari Singh fled from Srinagar, arriving in Jammu later in the day, where he was met by VP Menon, representative of Prime Minister Jawaharlal Nehru, and signed the Instrument of Accession.”  But research has shown that “Hari Singh did not reach Jammu until the evening of 26 October and that, due to poor flying conditions, VP Menon was unable to get to Jammu until the morning of 27 October by which time Indian troops were already arriving in Srinagar.”  It was a setup. Everything about the future of Kashmir had been agreed by Mountbatten and Nehru (of a Kashmiri Brahmin family), and mere legality could not be allowed to interfere with what was ordained by the Viceroy.

The story of the Kashmir dispute began with deliberate deception and went on to unavoidable tragedy.  The pragmatic Mr Nehru, India’s distinguished leader, stated unequivocally that “We have always right from the beginning accepted the idea of the Kashmir people deciding their fate by referendum or plebiscite. Ultimately, the final decision of settlement, which must come, has first of all to be made basically by the people of Kashmir.”  And the United Nations Security Council considered the dispute and made it clear that this was the way to go.

It is irrelevant that the dynastic and totally undemocratic rulers of both Kashmir and Junagadh were moral cripples with a combined intelligence quotient verging on that of a pair of generously-bejewelled molluscs.  They were swept aside by forces intent on achieving solutions without reference to the people, in the case of Kashmir, or what had been laid down as legal, as in Junagadh. Legality and morality have no bearing whatever on decisions made by the powerful, and the Kashmir and Junagadh independence wrangles equate to those in  Europe in more recent times, about which I wrote recently that

In February 2008 the ethnically Albanian province of Kosovo declared itself to be separate from Serbia of which it had been part for sixty years. There was no referendum on sovereignty by its 2.1 million inhabitants. The declaration was greeted with warm approval by the United States.

In March 2014 the ethnically Russian province of Crimea declared itself to be separate from Ukraine of which it had been part for sixty years.  There was a referendum on sovereignty by its 2.4 million inhabitants. The declaration was strongly condemned by the United States.

It’s amazing how attitudes change and principles become less important when the imperatives of power, recognition and money weigh upon the supposedly principled. No one could ever accuse Mountbatten of being principled, or even of desiring money, but he certainly wanted historical recognition.  And so does US President Obama, who could have done so much but has achieved so little. He is intent on confronting Russia, in the muddled hope that he will make his mark by appearing the indomitable leader of what he calls “the indispensable nation,”  but he would have served the world better had he continued his initial interest in Kashmir.

In 2008 Obama said that “We should probably try to facilitate a better understanding between Pakistan and India and try to resolve the Kashmir crisis” and if only he had brought diplomacy and discreet pressure to bear he might have achieved this.  But he sacrificed Kashmir,  as he has sacrificed so much,  on the altar of US commercial interests.  To achieve resolution in an international dispute requires sagacity, even-handedness and adherence to the Purposes and Principles of the Charter of the United Nations, but none of these have been evident in his later actions, which have been aggressively pro-Indian in regard to developments in the sub-continent.

The Pentagon, which appears to be front-runner in US international policymaking, stated in a report of October 2014 (‘Progress Towards Security and Stability in Afghanistan’) that Pakistan uses “proxy forces” (in other words, terrorist organisations) “to counter India’s military superiority.” The fact that the report was aimed at playing down the humiliating defeat of US forces in Afghanistan by a bunch of vicious unprincipled but essentially amateur guerrillas is neither here nor there.  What is important is the US allegation that Pakistan is acting illegally and contrary to the UN Charter in order to destabilise India.  The India media went berserk, of course, and it would now be difficult to identify a single Hindu Indian who is not convinced that Pakistan has been confirmed by America as their ultimate enemy.  So the Kashmir problem has been conveniently put on the US terrorism shelf, from which it will be difficult to dislodge.  Because there cannot be a Kashmir solution without consultation and agreement between the Permanent Five members of the Security Council, on whose books the Kashmir dispute remains.

The dispute about Kashmir is not simply a wrangle between India and Pakistan : it is an internationally recognised dispute that can be resolved only by the Security Council.  The claim by India that it is a “bilateral matter” is absurd and untenable, because the Simla agreement following the 1971 war decrees that

The two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them.

This does not expunge, cancel, amend, or revoke the Security Council Resolution about a plebiscite, any more than it excludes the UN from involvement in the Kashmir dispute. India claims that ‘mutually agreed’ in some fashion automatically excludes mediation, which is an intriguing way to interpret international agreements. 

The fact that the UN Observer Mission in Kashmir remains in existence is evidence that the UN Security Council, although unable or unwilling to enforce some of its own most important resolutions, confers legitimacy upon its involvement in Kashmir, even if by omission rather than commission. India can hardly renege—formally at least—from the first paragraph of the Simla agreement: ‘That the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries’, but Delhi continues to insist that it will not accept “third party mediation” on Kashmir.

Yet India accepted mediation over allocation  of the waters of the Indus, resulting in the Indus Waters Treaty which is “considered to be one of the most successful water sharing endeavours in the world today.”  India also accepted mediation about allocation of territory in the disputed area of the Rann of Kutch that resulted in India being awarded most of the territory that was being contested (Pakistan was awarded a mere ten percent of its claim of 9,100 square kilometres (3,500 square miles);  90 percent was awarded to India.)   As recorded by the Fordham Law Review, “The Rann of Kutch Arbitration was extremely successful in resolving a territorial dispute between two nations with a history of conflict.”  It was an historic and most welcome decision.

Then there was the more recent case of the Bay of Bengal dispute between India and Bangladesh in which “The Arbitration Tribunal on the India-Bangladesh Maritime Delimitation delivered its ruling on 7th July 2014. The Tribunal was set up under the Permanent Court of Arbitration in The Hague, in the matter of the Bay of Bengal Maritime Boundary Delimitation between India and Bangladesh.”  The decision of the court  was accepted by both countries. This was a shining example of dispute-solving through third party mediation.

Yet India, as stated by US Special Representative James Dobbins in May 2014, has, concerning Kashmir, “consistently rejected any third party mediation and argued that this is an issue that needs to be negotiated directly and without the participation of any third party.”

The Indian foreign minister declared in October that “There is no way in which India will accept any intervention on an issue that is entirely accepted in the Simla Agreement as a bilateral issue between India and Pakistan . . .  It is a waste of time for anybody no matter how eminent to be even trying to question it.”

So there it is:  India is adamant about the Kashmir issue.  It cares not a jot about the people of Kashmir.  In a way it’s akin to the situation in Crimea where its two million people voted to again accede to Russia, from which they had been separated for only sixty years, yet are being told by Obama that for their own good they should be a province of Ukraine, a country with a different language, different culture and actual aversion to them.

India is demonstrably wrong in its stance concerning the legality of the status of Kashmir and even rejected the UN’s request to investigate the recent exchanges of fire over the Line of Control dividing the areas of Kashmir administered by India and Pakistan.  So it’s time for the Security Council to take action by ordering Pakistan and India to accept a ruling by The Hague’s Permanent Court of Arbitration.  The matter should be handed to the Court to examine and produce a ruling on Kashmir’s status.  It might take years, but that is acceptable because, after all, the people of Kashmir have waited almost seventy years already for justice to be done.  But it will only be after the Court’s ruling that the main cause of friction and hatred between India and Pakistan will be removed, which would be welcomed by the world.

And with peace will come commerce and prosperity. Let there be freedom for Kashmiris — and freedom of trade.