India, Pakistan and the Kashmir Conflict: Making Progress through International Law

By Georgia Marks

On the 27th February Dr Aman Hingorani came to the Temple of Peace to give a talk about the Kashmir conflict and suggest solutions with reference to his book ‘Unravelling the Kashmir Knot.’ John Harrington for the Law and Global Justice Research Group in Cardiff Law School introduced the speaker. Harrington gave some context to the speaker and his work, describing Dr Hingorani as an advocate of the High Court in Delhi. It appears that work in human rights is a family affair, with Harrington referring to Hingorani’s parents as the mother and father of public interest litigation.

Hingorani began his talk by explaining that his research into the conflict in Kashmir began as part of his PhD research. Hingorani described Kashmir as a strategically placed area, as geographically it is to the side of both India and Pakistan. He went on to establish that the two latter countries both want more territory and have both dug their heels in Kashmir, at the expense of lives. The two countries are at a stalemate as they both want to keep the territory that they have.

After a brief introduction, the speaker stressed that unless we understand the narrative we cannot understand the way forward. A member of the audience questioned how the historical background has shaped the current situation. To this the speaker answered that neither domestic not international law can resolve it, the issue is based in politics, but it is important to use law to adapt political discussion. He went on to say that the current phase of radicalisation is buried in the subcontinent. The situation described by the speaker as the creation of a situational environment of mutually hostile nations with heightened sense of nationalism. I think this is a really good point as we cannot find a solution to the conflict if we do not understand the history that led up to it.

The speaker then went on to establish the history associated with the conflict which gives a good overview of the reasons behind the current situation highlighted above. 1857 marked what Britain referred to as the Mutiny in India, but what Indians call the War of Independence. As a result the government became centralised and the Queen declared that no more provinces were to be acquired and certain sovereign aspects were given to other countries. Hingorani made the point that before 1857 Muslims were seen as the enemy of Britain, but after 1858, middle class Hindus were established as the new enemy. The official British policy was communalisation, where Britain gave India the freedom, however the country was incapable of resolving the Muslim-Hindu conflict. Britain then used this to enforce its influence, as it created the perception that India needed Britain to resolve such conflicts. In 1939, the beginning of the Second World War meant India was declared as a country in war. Hingorani stated that according to the British archives the partition was decided then and not in 1947. At this point, Britain knew that they had to leave the subcontinent but wanted to keep part of it, so India used Islam as a geographical boundary, with Kashmir falling within this. However, the speaker made clear that Indians did not want the partition. When the partition was refused, violence was used as direct action to force congress to agree; they eventually did which resulted in the Independence Act 1947. Britain used Pakistan as a means of gaining power and assumed that Kashmir would go to Pakistan, so when it did not, it led to the Kashmir issue. Hingorani described the Kashmir issue as being based on British interest on the subcontinent. This is an interesting comment to make as it suggests the detrimental effects British colonialism had on other countries. In this sense, I think it is debatable whether intervention on an international level would do more harm than good in this context unless intensely supervised by the UN.

The speaker then went on to explain why Kashmir did not go to Pakistan. The ruler of Kashmir was Hindu and did not want to be part of Pakistan, a country with an Islam majority, and instead wanted to be independent. However, Pakistan wanted Kashmir, but the ruler of Kashmir was difficult and so Pakistan forced the ruler to exceed to Pakistan through the use of weapons given by Britain. Therefore, from what Hingorani has established up to this point is that Britain have been an integral political part of this conflict and have contributed greatly to the violence in this area.

Hingorani then went on to describe it in terms of international law, if Kashmir exceeded to India then it cannot be vetoed. Kashmir was deemed by the speaker as an international issue that needed Pakistan to comment on it. He then went on to say that the minute that India refers to the UN, a ceasefire will be demanded. In my opinion, this would be the best possible option from a human rights perspective as it would help to prevent the violence inflicted on civilians in Kashmir. The UN Security Council expressed the desire for the future of the state should be decided under UN supervision and presented the idea to take Kashmir issue out of the domestic context and give it an international platform. Another member of the audience asked if there were any serious efforts of countries to refer to the issue on an international level. Hingorani said that there had been no effort on the part of these countries. Kashmir has always been seen as a political issue and we need to distinguish it from law. However, India is going against legal policies and law is seen as abstract and we do not have military, political or diplomatic solution. The main problem is that India is not sure about what the Kashmir issue is, so a political will needs to be created. I think to take the issue to an international level will benefit Kashmir as it will provide an international check and balance on the actions of India, Pakistan and other countries involved such as Britain, and would hopefully influence positive change in this area, particularly for the people of Kashmir.

The speaker then established that New Delhi had disowned the part of Kashmir owned by Pakistan while retaining their part, however part of Kashmir was owned by China. So clearly Kashmir is split dramatically which is detrimental for their national identity. In addition to this, the Chinese were investing money and wanted the deeds from Pakistan but an issue arises here that if Pakistan agreed to give over the deeds then they agree to the partition which is not what they wanted. India had a control constitution but in 1973, in order to seek territory, India needed to amend their constitution because there was a constitutional limit to give up territory and while there is a constitution, India cannot disown territory or people.

So after a dispute spanning seventy years, India wants a partition but Pakistan wants a whole state. Hingorani then went on to stress the need to depoliticise the issue by making it subject to legal analysis. I think this is a valid point as if the countries are currently at a stalemate then it seems right to change tactics and focus the discourse on a different analysis to see if a solution can be found. We do not know how successful it will be, but the conflict has been going on for so long, it seems that any alternative is worth trying.

The narrative was established by the speaker as a constitutional framework. Both Pakistan and India were created by controlled constitutions, so the question is where India got the power to grant the wishes of the people. The same law that created Pakistan made Kashmir part of India. The main question presented by Hingorani was this, how did New Delhi have the power of accession when the law did not give them the power. The speaker went on to express that as a first step to depoliticise we should let the International Court of Justice test who has the title. John Harrington asked whether reference to the International Court of Justice would have any effect on the serious human rights violations in Kashmir. Hingorani responded by saying that in such conflict there are bound to be violations, and in India there has been reference to the domestic court- people want to see results.

 

At the point in the talk, Hingorani referred to his book that has been the basis of his discussion. He wanted to make clear that he wrote the book as an Indian. He then emphasized that law cannot resolve the issue but it can change political discourse. I think that this is powerful as if law is capable of changing the current discussion then the countries involved can attempt to get themselves out of the stalemate they have got themselves in. Hingorani was asked if he had visited Kashmir and he said that he deliberately had not visited as he did not want to be swayed by emotions as he written the book as a lawyer. The speaker expressed that he did not want to take sides as his book is from a jurisdictional perspective. I think this aspect is also important as it provides a rational view of how the conflict can try and be solved.

The speaker then established the current situation; Pakistan feels cheated and Kashmir feels backstabbed, and these are ingredients for terrorism. That is why, Hingorani said, that the political discourse needs to be changed. The problem is that there is unequal bargain power between India and Pakistan because if Pakistan disputes legal propositions then there is no Pakistan. Nonetheless, the UN has recognised Pakistan and India as sovereign countries, however Kashmir was recognised as part of India but not part of Pakistan.

The speaker concluded by relaying the realities of Kashmir. As a result of the partition it is a violent society, with part of the country being disowned by India. However, the country just wants to be independent and away from this 70 year old conflict. There has been terrible trauma as a result of the partition and all countries involved need closure. When a member of the audience asked Hingorani how he classed what is going on in Kashmir. The speaker reaffirmed that Kashmir want independence because they were promised it. The people of Kashmir are expressly being denied their human rights, these people are stateless.

Overall, I found Hingorani’s talk insightful as it offered a fresh perspective on how to resolve the ongoing conflict. Using law as a way to bring about change although uncertain in its effect, is an idea that is bound to help with relations between the countries by giving the discourse a different platform. In addition to this, it is really important to establish the history behind the conflict in order to understand the narrative that we need to address. It cannot be argued that this issue is not pressing as the current situation is having a detrimental effect of the human rights of the people of Kashmir.

 

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