JURIST Contributing Editor Ali Khan of Washburn University School of Law says that the recent Mumbai massacre allegedly carried out by a militant organization fighting for liberation of Indian-occupied Kashmir is a sad reminder that the long-simmering dispute is the tinderbox of South Asia…

The Mumbai massacre is a heinous crime, allegedly carried out by Lashkar-e-Tiaba (Army of the Pure), a militant organization that is fighting for liberation of Indian-occupied Kashmir. Formed in the days when liberation movements enjoyed legitimacy under international law, Lashkar has been outlawed since 2002 as a terrorist organization in Pakistan, India, the United States, and several other countries. The post-9/11 war on terror has further weakened the liberation movement for Kashmir. Under pressure from the United States, Pakistan has withdrawn its moral and military support from militant groups that have been training for decades to liberate Kashmir. The Mumbai massacre is a sad reminder, however, that the unresolved Kashmir dispute is the tinderbox of South Asia.

Origin of the Kashmir Dispute

In 1947, British India was partitioned between Muslims and Hindus. The law of partition, however, did not settle the future of more than five hundred semi-independent princely states, including the state of Jammu and Kashmir. The law allowed each princely state to decide for itself. Due to their geographical compulsions, most states had no choice but to join India or Pakistan.

However, a dramatic anomaly bedeviled the accession of two princely states. The predominantly Hindu state of Junagadh was ruled by a Muslim prince who opted to join Pakistan. India sent its military forces to annex Junagadh, arguing that the people, and not the prince, must decide the question of accession. Ironically, the predominantly Muslim state of Jammu and Kashmir was ruled by a Hindu prince who opted to join India. India happily accepted the princely accession. A militarily weak Pakistan could not take Jammu and Kashmir by force. A militarily strong India, which relied on the peoples' choice to take Junagadh, has since refused to apply the same logic to settle the Kashmir dispute.

Internationalization of the Kashmir Dispute

Over the years, the United Nations Security Council has passed several resolutions in a bid to settle the Kashmir dispute. In 1948, the Security Council passed Resolution 47, which became the principal source for resolving the Kashmir dispute. The Resolution recognized “that the question of accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite.” No such plebiscite was ever held, forcing India and Pakistan to engage in periodic wars. Rebuffing the Security Council Resolution, India gradually shifted away from its commitment to hold an internationally supervised plebiscite.

A frustrated Pakistan resorted to war in 1965 to settle the Kashmir dispute. India defeated Pakistan and through mediation of the Soviet Union forced Pakistan to sign the 1966 Tashkent Declaration, a treaty that effectively partitioned Jammu and Kashmir between India and Pakistan. In 1971, India played a key role in breaking up Pakistan. Instead of acquiring Jammu and Kashmir, Pakistan lost more than half of its population and territory to the new state of Bangladesh. Furthermore, India forced Pakistan to sign the Simla Agreement, a treaty under which the Kashmir dispute would be resolved through bilateral negotiations. Thus, India finally removed the Kashmir dispute from the international forum. After the Simla Agreement, the Security Council was no longer interested in resolving the Kashmir dispute. A dysfunctional bilateralism produced no settlement either.

During the Cold War, even though Pakistan sided with the United States in ousting the Soviet Union from Afghanistan, the United States showed little interest in resolving the Kashmir dispute. As the Cold War ended, the United States abandoned Pakistan and instead began to woo India as an economic and possibly a military partner against China. Pakistan, now completely on his own and nursing the wounds of betrayal, resorted to fomenting militancy in the Indian-held Kashmir. Pakistan’s option to keep the Kashmir dispute alive through state-sponsored militancy crashed to ground in the post 9/11 world in which all freedom fighters are now labeled as terrorists. Meanwhile, both India and Pakistan developed nuclear weapons, creating a dangerous stalemate in South Asia.

A Possible Solution for the Kashmir Dispute

In 1994, I published an article titled The Kashmir Dispute: A Plan for Regional Cooperation in the Columbia Journal of Transnational Law. After analyzing historical roots of the Kashmir dispute, I offered the following points for a possible settlement:

1. Except for the Valley of Kashmir, which has been a distinct province in the historical princely state of Jammu and Kashmir, India and Pakistan should lawfully partition the rest of the State. In fact, they already have. India controls Jammu while Pakistan controls Gilgit. Other parts of the state have also been partitioned. I suggest that the existing line of control be converted into an international border between India and Pakistan.
2. An internationally supervised plebiscite should be held in the Valley of Kashmir, which would allow its people to choose their own destiny, including the possibility of an independent state such as Switzerland. To preserve its neutrality, the Valley Kashmir may be legally disabled from entering into any military alliance with either India or Pakistan.
3. India and Pakistan should work toward forging an open borders regional community. They can use and develop the existing institutional structure of the South Asian Association for Regional Cooperation (SAARC) to move toward an economic community. The partition of Jammu and Kashmir will lose many of its scars and burdens in the context of an open-borders South Asia, including Nepal and Bangladesh.

To reverse the process of periodic wars, I have even proposed that India and Pakistan sign a defense pact to avert external threats. South Asia needs a new stimulus framework, a bold psychological initiative, if it wants to solve its more mundane problems such as air pollution, dirty drinking water, load-shedding, and undignified poverty.

Ali Khan is professor of law at Washburn University School of Law in Topeka, Kansas, and the author of the book, A Theory of Universal Democracy (2003). Many of his publications are available here.

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