Kashmir dispute

India should get a little more creative with its Gilgit-Baltistan policy

It could even consider participating in the China-Pakistan Economic Corridor, subject to Islamabad fulfilling a few conditions.

It would be difficult to fault the official stand taken by the Government of India on Pakistan’s decision to create a new province of Gilgit-Baltistan. A Ministry of External Affairs spokesperson said last week that the move was “illegal” and “completely unacceptable”.

The legal position is that India holds the sovereignty over the entire state of Jammu and Kashmir, though according to the United Nations, it needs to be ratified by a plebiscite. For a variety of reasons, that plebiscite has not taken place for 70 years, and despite many twists and turns, the Jammu and Kashmir issue has not been resolved. However, that does not negate the fact that as of this moment, sovereignty of all of the state rests with India.

Pakistan claims legal rights over Gilgit-Baltistan, formerly the Northern Areas, through an agreement signed by the so-called Azad Kashmir government that ceded control of the region to Pakistan in 1949. No one seems to have a copy of this agreement today. However, Azad Kashmir government never had any control over the region in the first place, and so handing over that region to Pakistan was a sleight of hand to disguise Pakistan’s outright annexation of territory that even now legally belongs to the State of Jammu and Kashmir.

In 1972, the Azad Kashmir legislature demanded the return of the region. Its High Court, in a judgement, supported this contention, but it was overturned by its Supreme Court, which said that the Northern Areas were not part of Azad Kashmir. Since that court did not declare it to be part of Pakistan either, it left the region in a limbo.

The region was ruled since 1949 by the Frontier Crimes Regulation, which gave no rights to local residents, and all administrative and judicial powers were held by the Islamabad-based Ministry of Kashmir Affairs. In 1994, Pakistan passed a peculiar constitutional device called the Legal Framework Order. This administrative instrument was used to deny representative government to local residents and to strengthen Islamabad’s hold over the region. In 1999, the Pakistan Supreme Court directed the Pakistan government to provide fundamental rights to the region, and to draw up a system that would enable the people to have an elected government. So in 2009, President Asif Ali Zardari renamed the region Gilgit-Baltistan through a Self Governance Order, which kept the reins of the government firmly in the hands of Islamabad rather than with the region’s chief minister or elected Assembly.

The way out

Earlier this month, a Pakistani minister told a television channel that a high-powered committee had recommended that Gilgit-Baltistan be declared Pakistan’s fifth province. This move has been criticised not only by the Government of India, but by the Hurriyat Conference, which advocates the state’s secession from India.

The failure of India and Pakistan to conduct the plebiscite led to the exploration of various other ways to resolve the issue. Between 1948 and 1956, the United Nations sought to mediate, but was unsuccessful. In 1953-’54, the two countries held direct talks that were quite positive, but came apart following the American decision to supply arms to Pakistan. In 1963, the US and UK strong-armed India to talk to Pakistan, but the latter, in a style that became typical, over-reached, and the negotiation collapsed. In 1965 Pakistan tried war, but failed. In 1971, the two countries put the past behind them and said they would resolve the dispute through dialogue. In 1989, Pakistan began a covert war that has more or less been defeated.

So, the only way out remains dialogue and negotiation, which is not happening.

As per the instrument of accession, the Government of India Act (1935), Indian Independence Act (1947), Constitution of India and international law, the entire erstwhile princely state of Jammu and Kashmir legally belongs to India. This 2004 map by Central Intelligence Agency (modified to show the official Indian map inset) shows the ground position of the areas illegally occupied by Pakistan and China – and that ceded illegally by Pakistan to China. What the map shows as Azad Kashmir is what is called Pakistan-occupied Kashmir in India.
As per the instrument of accession, the Government of India Act (1935), Indian Independence Act (1947), Constitution of India and international law, the entire erstwhile princely state of Jammu and Kashmir legally belongs to India. This 2004 map by Central Intelligence Agency (modified to show the official Indian map inset) shows the ground position of the areas illegally occupied by Pakistan and China – and that ceded illegally by Pakistan to China. What the map shows as Azad Kashmir is what is called Pakistan-occupied Kashmir in India.

When the first war over Jammu and Kashmir broke out, India had to make hard choices in its military campaign. It focused on the Kashmir Valley, the region around Poonch and Ladakh. Desultory attempts were made to fight in the vast Northern Areas but they failed for want of adequate forces.

There was another subliminal message – if the nation could be partitioned, so could Jammu and Kashmir, with India holding the Valley of Kashmir and Jammu, and Pakistan getting Azad Kashmir, which provided depth to the defence of its heartland, as well as people who were ethnically close to them. As for the Northern Areas, no one really bothered about it too much, not the Indians, nor the Pakistanis who are only now seeking to give it some legal status.

India’s willingness to the partition option was apparent in its official responses to Sir Owen Dixon’s plans to partition the state and conduct a plebiscite only in the Valley. They reappeared in the 1963 negotiations, when New Delhi proposed not just allowing Pakistan to have Azad Kashmir and the Northern Areas, but also a small chunk of the Valley. Pakistan did not bite.

Lost agreement

In 1972, in the Simla talks, Pakistan’s president Zulfikar Ali Bhutto gave a verbal commitment to Prime Minister Indira Gandhi that he would convert the Cease Fire Line into an international border. Pending this, he agreed that the line should be called the “Line of Control”, which is a matter-of-fact term, rather than a reference to a line created through war. But Bhutto was deposed, and the Pakistanis denied that the conversation happened. No doubt the government has a record of this in its archives, but we have learnt of this through the memoirs of PN Dhar, Indira Gandhi’s secretary, and a contemporary news report by the New York Times correspondent James Sterba, who had been briefed by the Pakistani delegation.

Interestingly, the actual land connectivity between Pakistan and China dates to the late 1960s and 1970s when the Karakoram Highway linking the two countries through the Khunjerab Pass came up. India did make a formal protest, but it was done as a matter of form. If it had been an important issue it would have figured in the Simla talks. There is nothing in the available records to show that it did.

That India was willing to forgo its formal claim over Azad Kashmir and the Northern Areas was more recently reiterated in the back-channel India-Pakistan negotiations in the period 2004-’07. India’s opening gambit was Prime Minister Manmohan Singh’s repeated statements that he would accept any settlement that would not call for the redrawing of boundaries. Eventually the two sides came close to a settlement based on existing borders. Unfortunately, political instability in Pakistan prevented further movement on an agreement. Subsequently, as is their wont, the Pakistanis disclaimed any connection to the negotiation.

Shifting goalposts?

And this is where we come back to the Indian stand on Gilgit-Baltistan today. India cannot formally take any other stand but to insist on its claim of sovereignty. But there has been an Indian position on Jammu and Kashmir, which essentially wishes to settle the dispute with Pakistan on an “as is, where is” position. By shifting the goalposts now, the Modi government is embarking on an entirely new track.

Many questions arise: Does India assert its sovereignty over Gilgit-Baltistan and Azad Kashmir with a view of reclaiming them, or is the claim a basis of negotiation? Second, is reclaiming a realistic option, considering that the bulk of the people there would be against the move, never mind the few dissidents who are trotted out in seminars? Third, is this a desireable option? Would India like to add seven million mostly Muslim citizens to Jammu and Kashmir whose population today is 13 million of whom nine million are Muslim and four million are Hindu?

Actually it is more than likely that New Delhi’s main purpose is to use the sovereignty issue to oppose the China-Pakistan Economic Corridor on the pretext that it passes through Gilgit-Baltistan. Essentially what India is saying to China is: Either accept India’s sovereignty on Jammu and Kashmir or abandon the China-Pakistan Economic Corridor.

Neither is likely to happen.

On March 17 the Chinese official spokesperson noted: “On the Kashmir issue, China’s position is consistent and clear-cut. As a leftover issue from history between India and Pakistan, it needs to be properly settled through dialogue and consultation between the two sides. The development of the China-Pakistan Economic Corridor does not affect China’s position on the Kashmir issue.”

In opposing the China-Pakistan Economic Corridor, New Delhi needs to clarify its goals. Is it doing so with a view to disrupt the Sino-Pakistan axis? That is a legitimate goal, but whether it is desireable or even achieveable is another matter. A more constructive policy could well be a participation in the China-Pakistan Economic Corridor subject to Islamabad ending its blockade of India’s land and rail routes to and through Pakistan, and opening up its economy to South Asian regional integration, something which Islamabad has committed itself to in various meetings of the South Asian Association for Regional Cooperation. A more integrated South Asia will be beneficial to all parties and if it is done via a Chinese agency, it will be all the more satisfying.

Manoj Joshi is a Distinguished Fellow, Observer Research Foundation.

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