In June 1989 a project at an American university involving Pakistani and other scholars, including one Indian, led to the book Foundations of Pakistan’s Political Economy: Towards an Agenda for the 1990s published in Karachi, New Delhi and elsewhere. The book reached Nawaz Sharif and the Islamabad elite, and General Musharraf’s current proposal on J&K, endorsed warmly by the US State Department last week, derives from the last paragraph of its editorial introduction: “Kashmir… must be demilitarised and unified by both countries sooner or later, and it must be done without force. There has been enough needless bloodshed on the subcontinent… Modern Pakistanis and Indians are free peoples who can voluntarily agree in their own interests to alter the terms set hurriedly by Attlee or Mountbatten in the Indian Independence Act 1947. Nobody but we ourselves keeps us prisoners of superficial definitions of who we are or might be. The subcontinent could evolve its political identity over a period of time on the pattern of Western Europe, with open borders and (common) tariffs to the outside world, with the free movement of people, capital, ideas and culture. Large armed forces could be reduced and transformed in a manner that would enhance the security of each nation. The real and peaceful economic revolution of the masses of the subcontinent would then be able to begin.”
The editors as economists decried the waste of resources involved in the Pakistan-India confrontation, saying it had “greatly impoverished the general budgets of both Pakistan and India. If it has benefited important sections of the political and military elites of both countries, it has done so only at the expense of the general welfare of the masses.”
Such words may have been bold in the early 1990s but today, a decade and a half later, they seem incomplete and rather naïve even to their author, who was myself, the only Indian in that project. Most significantly, the position in international law in the context of historical facts had been wholly neglected. So had been the manifest nature of the contemporary Pakistani state.
Jammu & Kashmir became an entity in international law when the Treaty of Amritsar was signed between Gulab Singh and the British on March 16 1846. British India itself became an entity in international law much later, possibly as late as June 1919 when it signed the Treaty of Versailles. As for Pakistan, it had no existence in world history or international law until August 14 1947, when the British created it as a new entity out of certain demarcated areas of British India and gave it the status of a Dominion. British India dissolved itself on August 15 1947 and the Dominion of India became its successor-state in international law on that date. As BR Ambedkar pointed out at the time, the new India automatically inherited British India’s suzerainty over any and all remaining “princely” states of so-called “Indian India”. In case of J&K in particular, there never was any question of it being recognised as an independent entity in global international law.
The new Pakistan, by entering a Standstill Agreement with J&K as of August 15 1947, did locally recognise J&K’s sovereignty over its decision whether to join Pakistan or India. But this Pakistani recognition lasted only until the attack on J&K that commenced from Pakistani territory as of October 22 1947, an attack in which Pakistani forces were complicit (something which, in different and mutating senses, has continued ever since). The Dominion of India had indicated it might have consented if J&K’s Ruler had decided to accede to Pakistan in the weeks following the dissolution of British India. But no such thing happened: what did happen was the descent of J&K into a condition of legal anarchy.
Beginning with the Pakistani attack on J&K as of October 22 upto and including the Rape of Baramulla and the British-led Pakistani coup détat in Gilgit on one side, and the arrival of Indian forces as well as mobilization by Sheikh Abdullah and Bakshi Ghulam Mohammad of J&K’s civilians to repel the Pakistani invaders on the other side, the State of Jammu & Kashmir became an ownerless entity in international law. In Roman Law, from which all modern international and municipal law ultimately derives, the ownership of an ownerless entity is open to be determined by “military decision”. The January 1949 Ceasefire Line that came to be renamed the Line of Control after the 1971 Bangladesh War, demarcates the respective territories that the then-Dominions and later Republics of India and Pakistan acquired by “military decision” of the erstwhile State of J&K which had come to cease to exist.
What the Republic of India means by saying today that boundaries cannot be redrawn nor any populations forcibly transferred is quite simply that the division of erstwhile J&K territory is permanent, and that sovereignty over it is indivisible. It is only sheer ignorance on the part of General Musharraf’s Indian interviewer the other day which caused it to be said that Pakistan was willing to “give up” its claim on erstwhile J&K State territory which India has held: Pakistan has never had nor even made such a claim in international law. What Pakistan has claimed is that India has been an occupier and that there are many people inhabiting the Indian area who may not wish to be Indian nationals and who are being compelled against their will to remain so ~ forgetting to add that precisely the same could be said likewise of the Pakistani-held area.
Accordingly, the lawful solution proposed in these pages a year ago to resolve that matter, serious as it is, has been that the Republic of India invite every person covered under Article 370, citizen-by- citizen, under a condition of full information, to privately and without fear decide, if he/she has not done so already, between possible Indian, Iranian, Afghan or Pakistani nationalities ~ granting rights and obligations of permanent residents to any of those persons who may choose for whatever private reason not to remain Indian nationals. If Pakistan acted likewise, the problem of J&K would indeed come to be resolved. The Americans, as self- appointed mediators, have said they wish “the people of the region to have a voice” in a solution: there can be no better expression of such voice than allowing individuals to privately choose their own nationalities and their rights and responsibilities accordingly. The issue of territorial sovereignty is logically distinct from that of the choice of nationality by individual inhabitants.
Equally significant though in assessing whether General Musharraf’s proposal is an anachronism, is Pakistan’s history since 1947: through Ayub’s 1965 attack, the civil war and secession of Bangladesh, the Afghan war and growth of the ISI, the Kargil incursion, the 1999 coup détat, and, once or twice removed, the 9/11 attacks against America. It is not a history that allows any confidence to arise in Indians that we are not dealing with a country misgoverned by a tiny arrogant exploitative military elite who remain hell-bent on aggression against us. Like the USA and USSR twenty years ago, what we need to negotiate about, and negotiate hard about, is an overall mutual military drawdown and de-escalation appropriate to lack of aggressive intent on both sides. Is General Musharraf willing to discuss that? It would involve reciprocal verifiable assessment of one another’s reasonable military requirements on the assumption that each was not a threatening enemy of the other. That was how the USA-USSR drawdown and de-escalation occurred successfully. If General Musharraf is unwilling to enter such a discussion, there is hardly anything to talk about with him. We should wait for democracy to return.
Mr Clemons has made interesting and astute observations on Pakistan’s military following the Rawalpindi attack of the last few days.
But some political history is important. Pakistan’s military between 1947 and 1971 had built up an illusion that it could, with help from Patton tanks and Sabre jets and Starfighters, defeat India (one Pakistani is equivalent to 9 Indians etc etc).
In Dec 1971, despite the machinations of Nixon and Kissinger with the Pakistani strongman Yahya Khan, a free Bangladesh came to be born from the old colonized East Pakistan. 90,000 Pakistani POWS languished in Indian camps for more than a year (after being protected by India from Bangladeshi revenge).
The debacle led to some candid soul-searching and the official Pakistani inquiry commission squarely blamed debauchery and corruption in the Army from Yahya Khan downwards for bad generalship. Bangladesh seceded from West Pakistan essentially because of internal political contradictions, e.g. the imposition of Urdu on Bengali-speakers etc. Certainly Indian military help proved vital at the end but India did not cause the secession. (I was personally helping at a refugee camp as a schoolboy volunteer, when Ted Kennedy flew in to visit etc… stories for another time).
The Pakistan military has maintained a self-delusion that India caused the break-up of the original Pakistan and that India harbours similar designs to this day. India neither does nor has the capacity or motivation to do so.
The second factor was that Zia, who succeeded Yahya as military strongman and US ally, brought in Islamisation of the officer-corps as a counterweight to the trends of debauchery and corruption. These might be two crucial subjects for discussion if US discussants decide to go on a reflective retreat with Pakistan’s top military brass.
I have made clear my objections to the confusion the BBC has been sowing over months if not years through its purported maps of India and Jammu & Kashmir in particular — maps which have a subliminal effect as they are shown only for a split second before the start of some little reportage. As I said a few days ago there seems to have been progress in recent days in the BBC acknowledging the official UK Government/EU position that the Republic of India is de facto and de jure sovereign in J&K on the Indian sides of the LOC and LAC at least. I have said the dual national Pakistani moles who may have been pushing the hardline Pakistani viewpoint within the organisation may have found some opposition at last.
But today’s 0730 Indian Standard Time broadcast of the BBC’s purported “World News” should get Pakistanis perturbed as well! (Indians would be largely indifferent.)
In two separate reports from Pakistan during the same broadcast, two different maps of Pakistan were shown! The first map showed Pakistan to include Muzaffarabad, Gilgit, Skardu etc up to the LOC, while the second excluded these!
The organisation seems to be in process of thinking out the history and geography of the subcontinent and BBC staff may like to consult my articles “Solving Kashmir”, “Law, Justice & J&K”, “History of Jammu & Kashmir” , “Pakistan’s Allies”, “A Brief History of Gilgit”, etc available elsewhere here for enlightenment.