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.

 

Transforming our World: The 2030 United Nations Sustainable Development Agenda

Mark Bulmer, 2015 © Some rights reserved. Licensed under a Creative Commons Attribution license http://bit.ly/20s863K

Mark Bulmer, 2015 © Some rights reserved. Licensed under a Creative Commons Attribution license http://bit.ly/20s863K

Melanie Hawthorne, WCIA Volunteer

The United Nations Sustainable Development summit in New York on 25 -27 September 2015, agreed to 17 goals and 169 targets that build upon and develop from the eight Millennium Goals (MDG).  Broader in scope, the 15 year strategy of Sustainable Development Goals (SDG) will include all 180 nations (both wealthy and poor) and not just focus on the developing nations as previously targeted by the MDG’s.

On November 4-6th, the DCF Uganda High-level Symposium will provide a first opportunity for a range of stakeholders to discuss development cooperation of the 2030 SD Agenda and explore ways to motivate, support and further shape cooperation as a critical means of implementation.

Initially, attention will be placed on what this means in terms of challenges and opportunities for development cooperation in Africa and the Symposium will focus on two overarching questions:

  1. How will the UN adapt development cooperation policies and interventions for implementing the SDGs?
  2. How will the UN monitor and review the impact of development cooperation in advancing the new sustainable development agenda.

The Symposium aims to bring to the table key issues related to ownership of the new global agenda, and will produce concrete evidence based policy guidance to be able to put into practice at international, regional, national and local level as part of the broader global partnership for sustainable development.

The report will be prepared in preparation for the 2016 meeting of the United Nations High-Level Political Forum (HLPF), the UN platform for the follow-up and review of the 2030 Agenda for Sustainable Development and will be the first HLPF after the adoption of the 2030 Agenda for Sustainable Development.  The Forum is expected to start effectively delivering on its mandates to provide political leadership, guidance and recommendations on the Sustainable Development Agenda’s implementation and will meet from Monday, 11 July, to Wednesday, 20 July 2016, under the auspices of the UN Economic and Social Council (ECOSOC).

*In order to informally contribute to the reflection, Major Groups and other Stakeholders were invited to provide their views and comments by completing an online questionnaire by 15 November 2015. Responses received will be made available on the website.

The Wales We Want

blog2As nations across the globe get to grips on how they will implement their own bottom up v’s top down policies through the framework guidelines, development cooperation is viewed as the main pillar of the global partnership for achieving the Sustainable Development Goals (SDGs).

Wales has a high profile in sustainable development and is recognised as being one of the first nations to take sustainable development seriously.

The Sustainable Development Charter managed by Cynnal Cymru/Sustain Wales on behalf of the Welsh Government encourages private, public and third sector organisations in Wales to become more resilient by using the principles of sustainable development – of improving decision making based on the economic, social, environmental and cultural well-being of Wales. Over 340 organisations have signed up on a voluntary basis and as more continue to do so as sustainable development continues to climb the agenda.

In April 2015, The Welsh Government passed into law The Well-being of Future Generations (Wales) Act  that aims to improve the social, economic, environmental and cultural well-being of Wales, and strengthen governance arrangements within public bodies to ensure that present needs are met without compromising the ability of future generations.

The legislation will place a statutory duty upon public bodies in Wales to adopt sustainable development as the central organising principle upon which all other organisational decisions are made and provide evidence on how this is implemented in practice.

The legislation identifies 7 key goals to improve the well-being of Wales:

  1. A Prosperous Wales
  2. A Resilient Wales
  3. A Healthier Wales
  4. A More equal Wales
  5. A Wales of Cohesive communities
  6. A Wales of Vibrant Culture and Thriving Welsh language
  7. A Globally responsible Wales

Delivered through Public Service Boards (PSB’s) and local wellbeing plans for all local authorities in order to improve wellbeing for people and their communities, Public bodies in Wales were asked to respond to the detailed draft guidance that aims to enable government bodies and agencies in responding to and complying with the statutory duties they are under as a result of the Act.   All public bodies are scheduled to commence statutory reporting on wellbeing indicators as from April 2017

These public Bodies include: Welsh Ministers, Local Authorities, Local Health Boards, Public Health Wales NHS Trust, Velindre NHS Trust, National Parks Authorities, Fire and Rescue Authorities, National Resources Wales, Higher Education Funding Council (HEFCW), Arts Council of Wales (ACW), Sports Council of Wales (SCW), National Library and the National Museum and Galleries Wales (NMGW).

The consultation documents closes for submission on the 16th November 2015

Alongside the Consultation the proposed national indicators,  How do you measure a nation’s progress? will measure and capture wellbeing statistics in Wales and the deadline for consultation is the 19th January 2016.

Picture Hope in the Thorns (2007), Dan Foy © Some rights reserved. Licensed under a Creative Commons Attribution license http://bit.ly/1WuB834

UN Investment in ASEAN More Important Than Ever?

Isma Aiman

Let shaking hands be the start of further mutual benefits ahead

Let shaking hands be the start of further mutual benefits ahead

Is it the end of potential growth for businesses in Asia? In recent times, we can see the decline of China’s GDP growth from a staggering 14.2% in 2007 to a mere 7.7% at the end of 2013. Not to mention rumours that after the official data for 2014, a further fall is also projected. Looking at the other Asian superpower, India, we might be wary to invest there.

Continue reading

Celebrate aid times?

Snapshot from House of Lords when International Development (ODA) Bill was passed.

Earlier this month, Lord Purvis of Tweed passed the International Development (ODA) Bill through the House of Lords, “we will be making a worthwhile contribution” he declared to the nepotistic throng. Very soon, it will be every future government’s obligation to spend at least 0.7% of its gross national income on foreign aid.

Continue reading

Development – A Two-way Initiative

How much of the world's development is owed to one side alone?

How much of the world’s development is owed to one side alone?

Despite the wide range of criticism facing it, the United Nations has a good reputation of being in the forefront of peacekeeping, peacebuilding, conflict prevention and humanitarian assistance activities. This fact is proven by the Nobel Peace Prize it was awarded in 2001 and its success in assisting more than 170 peace settlement negotiations that have ended regional conflicts around the world. Even now, the UN is currently working on sixteen peacekeeping projects in places such as Darfur, Lebanon and South Sudan. Continue reading