As regional Britain rule ended in South Asia in 1947, the fates of Kashmir and over five hundred other Princely States were left in contention. Most of the states acceded quickly to either Pakistan or India. Kashmir, however, stalled in hopes of self-determination by requesting standstill agreements with both countries.
After the agreement was signed with Pakistan but before it was signed with India, Pakistani bands infiltrated the border of Kashmir, joining rebels in West Kashmir trying to throw off the rule of the Maharaja, who was Hindu but whose constituents were mainly Muslim. After several requests to Pakistan to stop the free distribution of arms and ammunition and access to facilities, land, and resources to the raiders, appealed to India for military support.
India agreed, but only on the condition that Kashmir signs an instrument of accession to India. Kashmir agreed, and the document was legally signed. Because Kashmir was now a part of India, the Maharaja sent troops in to repel the raiders. On November 2 of that year, the Indian government announced that it would hold a plebiscite to permanently resolve the issue of Kashmir.
However, Pakistan would not come to the table on the grounds that a fair plebiscite could not possibly be held while Indian troops occupied the area in question. Since then, all attempts at cease-fire and plebiscite agreements have been foiled by either country’s violations of peace requirements. This chapter will discuss the diplomatic history of the two countries, form an opinion on relative the fault of the two countries, and discuss the subsequent fate of the Kashmiri state itself.
Kashmir’s importance to India and Pakistan lies mainly for its strategic geographic location and water resources. Kashmir provides direct access to China on the northeast, Afghanistan and Turkestan on the northwest and both India and Pakistan on the south. Also, the area has great importance to Pakistan because of its river resources, as it holds the headwaters of major rivers and is crisscrossed with canal systems.
All of Pakistan’s major rivers have their headwaters in Kashmir, so the loss of Azad (Pakistani) Kashmir to India would give India control over much of Pakistan’s water supply. This is especially dangerous for Pakistan because it has three times as much irrigation-dependent acreage as India. Indeed, the water issue is so serious that when India cut off of the canals to Pakistan in 1948, panic arose among the peasants.
Both the World Bank and International Court of Justice intervened to form a settlement between the two countries. Kashmir’s location and natural resources, then, make it a diplomatic and agricultural asset to India and Pakistan.
As soon as British control ended in the area, the competition began for possession of Kashmir. Although Pakistan signed a standstill agreement with Kashmir, it immediately violated the treaty by cutting off essential supplies like food and oil to Kashmir with the obvious intent of forcing its accession. This move was in direct violation of the standstill agreement it had just signed.
The Foreign Minister of Pakistan, however, attributed the blockade to internal transportation problems. Next, Pakistan began to organize raids on Kashmir, distributing free arms, ammunition, and supplies to the population near the border. The Kashmiri Prime Minister made two formal requests to the Pakistani government to stop the continuous border raids, but Pakistan resolutely denied both its support of the raiders and the actions of the raiders themselves.
However, in early May of that year, it admitted, of its own volition, its sponsorship of the raiders but called its intervention a spontaneous and sympathetic response to the indigenous Kashmiri revolt that occurred after Hindus massacred Muslims there.
India, seeking a peaceful resolution to the problem instead of direct conflict with Pakistan, referred the situation to the Security Council of the United Nations. The Council sent a list of three requests to the government of Pakistan:
- to prevent Pakistan Government personnel, military and civil, from participating or assisting in the invasion of the Jammu and Kashmir State;
- to call upon other Pakistan nationals to desist from taking any part in the fighting in the Jammu and Kashmir State;
- to deny to the invaders: (a) access to and use of its territory for operations against Kashmir; (b) military aid and other supplies; (c) all other kinds of aid that might tend to prolong the present struggle. (Rao 28)
When the Council met with the two countries, India accused Pakistan of aggression by giving aid and arms to the raiders, allowing them the use of Pakistani territory, resources, and facilities, allowing Pakistani servicemen ostensibly “on leave” to participate in the raids, and refusing to disassociate itself with the raiders as the conflict increased in intensity.
Pakistan responded with a flat denial of having aided the raiders or committed aggression. In addition, it pronounced Kashmir’s accession to India illegal because the Maharaja was incompetent to sign it and the document was signed under duress.
First of all, India’s accusation of aggression has foundation because Pakistan is truly at fault for the invasion of Kashmir. According to Dionisio Anzilotti, former president of the Permanent Court of International Justice, “The State which knows an individual is plotting an unlawful act against a foreign state and does not prevent it, and the State which receives an offender and screens him from punishment… become [an] accomplice in the offences” (Rao 46). The invasion was “against all canons of international law and usage and a clear violation of the Charter, the Security Council’s resolution of 17 January 1948, and its own assurance to the President of the Security Council” (Rao 82). In July 1948, three months after Pakistan admitted of its own accord to sending troops into Kashmir under the pretext of self-defence, the UN Commission established “without a doubt” (Rao 46) that Pakistan had committed aggression. In response to this, the Pakistan Foreign Minister admitted wrongdoing but cited fear of Indian aggression as the main reason behind Pakistan’s actions.
However, regardless of the reason, according to Article 51 of the United Nations Charter, Pakistan had “no right of self-defence in the absence of an armed invasion or attack on its territory” (Rao 50).
In addition, it failed to inform the Security Council of the movement of its troops, another violation of the UN Charter, but rather denied the existence of the raiders altogether. This also directly violated the spirit of the written assurance it gave the president of the Security Council in January 1948 that it would follow the statutes of the Charter.
In addition, Pakistan’s argument that the accession of Kashmir to India was illegal is unfounded. Pakistan claims that the Maharaja was not legally competent to sign the instrument of accession to India because his power had already been usurped by the revolt. However, according to the statutes of international law, the new government of Kashmir had not yet acquired statehood.
The conditions are that there must be a people, a country in which people have settled, and a sovereign government. The state of Kashmir satisfied all of these requirements except for that of a sovereign government, as it had no power to deal with external matters and was thus not completely dependent on external control. Therefore, Kashmir was still under the law of its Maharaja, and the instrument of accession was and is completely legal.
The argument that the document is illegal because it was signed under duress also is unfounded. India has emphatically denied using any matter of fraud or coercion, but even conceding that it had used duress, this would not make the document illegal under international law:
“Under international law, duress does not invalidate consent, as it does in the municipal law of contract. It does not refuse to recognize an agreement induced by force. Under international law, a dictated treaty is as valid legally as one freely entered into on both sides. Thus, even assuming the complaint made by Pakistan to be true, still, it does not invalidate the accession of Kashmir to India” (Rao 43).
After these diplomatic conflicts, the Security Council assembled the United Nations Commission for India and Pakistan (UNCIP). After a few revisions, it formulated the well-known resolution of August 13, 1948. Some of the assurances given by the resolution, among others, are that the government of the predominantly Muslim Azad (“Free”) Kashmir would not be recognized and that India was responsible for the security of Kashmiri territory.
In the following January, another resolution laying down requirements for the holding of a plebiscite was laid down, including the requirements that Pakistan withdraw its troops from the area. However, because of Pakistan’s failure to follow this statute and because of differences of opinion over the disarmament of Azad Kashmir, a plebiscite was impossible. The UNCIP then referred the matter over to the Security Council, which appointed several mediators in quick succession to solve the conflict, all with poor results.
The UN then tried direct negotiations between the prime ministers of India and Pakistan in 1953. The two countries agreed to maintain peaceful atmospheres in their respective countries to create an environment conducive to truce talks. However, no sooner was this agreement made than the Pakistan Press, radio, and public leaders began a propaganda campaign of hatred against India, creating unfavourable conditions for the process of peace and speaking in direct violation of the joint communique both countries had just agreed upon.
Wrote the prime minister of India in September of 1953 to the prime minister of Pakistan, “’ the atmosphere of goodwill, that is so essential for any real progress towards a settlement, was being vitiated by the Press attacks and public statements in Pakistan…. If the foundation goes, how will the superstructure survive?’” (Rao 73). Pakistan, however, continued to spew venom about jihad, war, and the depravity of India.
At this time, Pakistan once again broke the spirit of peace talks through a proposed US-Pakistan military aid pact. In December of that year, the prime minister of Pakistan denied that Pakistan was entering any military alliance but was engaged in informal talks about the purchase of military supplies from the United States.
He claimed that the defence of Pakistan had nothing to do with the demilitarization of Kashmir. However, this argument stretched the limits of credulity: Pakistan’s attitude of speaking the language of peace and at the same time strengthening its armed forces suggests ulterior motives and feigned interest in the peace process. In addition, the strengthening of the Pakistani military in fact has the effect of strengthening all of Pakistan’s forces, including that of Azad Kashmir. This was against the cease-fire agreement and the nature of the peace process.
Pakistan also had arguments against India’s conduct. In December of 1950, the prime minister of Pakistan alerted the Security Council that Kashmir was forming a constituent assembly and accused India of seeking to nullify the international agreements by fully incorporating Kashmir into India.
However, this argument was unfounded because the Maharajah of Kashmir sought only to frame a constitution just as other Indian states did; “the Constituent Assembly by an assertion of its rights could not have altered, suspended, or superseded the accession of Kashmir to India and [was] irrevocable” (Rao 83). Later, when the constituent assembly was dissolved because the constitution had been drafted, Pakistan and the international community criticized India harshly for seeking to change the relationship between Kashmir and India.
Pakistan also argues that if the accession of Kashmir to India was legal, why did India call for a plebiscite? The plebiscite did not take place because it was rejected by Pakistan, who claimed that no impartial plebiscite could be held while Indian troops were deployed in the questioned area.
However, India’s call for a plebiscite injects doubt onto the legality of its accession. India’s defence lies in history. Kashmir was ruled by an oppressive and unpopular Maharaja; while the majority of the state was Muslim, most of the major posts in government and the military were held by Hindus.
India and Pakistan had just emerged from the background of a massacre that shook both countries and caused passions to rise in the masses. India did not want to see a repetition of the destructive mass rioting that occurred after its partition. In addition, India was already drained and weakened by its long struggle for independence.
The problems in forming a plebiscite have mainly rested in the withdrawal of troops on either side. According to the UNCIP, Pakistan had a prior obligation to remove troops from the area, which it still has not done. It demands that India withdraw its troops simultaneously. However, India’s obligation is different from that of Pakistan; its responsibility is to keep its forces at a minimum, after the total dissolution of Pakistan’s troops in Kashmir. Therefore, its fulfilment of obligation rests on Pakistan’s withdrawal of troops.
Without action from either side, however, a peaceful resolution to the Kashmir problem is impossible. After fifty years of competition and accusations over Kashmir, a plebiscite is due. Legally, it is Pakistan’s responsibility to pull its military forces out of the region first, as agreed upon in the August 13, 1948 resolution signed by both countries.
Afterwards, India must fulfil its obligation to minimize its forces in the area. Through these actions and the end of the warlike propaganda fed to the masses, India and Pakistan can begin to create an environment conducive to peace and give a serious attempt to hold a plebiscite. Legally, they will have fulfilled their obligations, and the Kashmiri people will be able to choose their own fates.
About the author
The article is written by Emily Pan on December 4, 1998, on War & Peace: Confrontation: Yugoslavia, Kashmir, Cyprus, Algeria