Pakistan and Kashmir – Trans-Himalayan Trade, International Law; Commitments and Betrayals

Nayyar
Nayyar N Khan is a US based human rights and peace activist of Kashmiri origin. His area of expertise is International Peace and Conflict Resolution.

By Nayyar N Khan

The hysteria surrounding the China Pakistan Economic Corridor (CPEC), to be built through Gilgit Baltistan, appeared with the visit of Chinese President Xi Jinping to Pakistan. The visit has spawned an animated discourse among the concerned parties regarding the legal status of route and corridor’s future. Chinese President reaffirmed the previously announced commitment, worth $46 billion, towards the CPEC. The CPEC is considered a substantial project that seeks to bolster Sino-Pakistan bilateral bonds and further consolidate their premeditated ties. The corridor will run through Gilgit Baltistan, part of the erstwhile Princely state of Jammu Kashmir declared disputed by the United Nations and accepted by both India and Pakistan. In due course, this geographical reality of the CPEC could potentially impinge upon Jammu Kashmir’s geopolitical calculations, territorial integrity, promised referendum under UN patronage and pose a strategic challenge to the global peace and security.  Pakistan as being a party to the Jammu Kashmir conflict has an obligation to uphold and recognize the disputed nature of entire State of Jammu Kashmir till the final settlement of the dispute.  If it walks away from this obligation it shrinks itself as a liable nation state which would be a grave breach to international law and Kashmiri people’s right to self-determination. A country emasculates its raison d’être if either it cannot provide minimally acceptable governance to its own people, or is derelict with regard to the internationally acknowledged rights of a people, for the effective support of which it assumed legal responsibility.

In wake of CPEC fervor Pakistan itself is ready to go against the article 257 of the Constitution which does not include the territories of the former state of Jammu Kashmir as part of the country. Finance Minister of Pakistan Ishaq Dar categorically said while speaking at the National Assembly that Gilgit-Baltistan (GB) and Azad Jammu and Kashmir (AJK) were part of Pakistan and not included in the disputed territories of former Princely State of Jammu Kashmir. The statement came when the minister referred to India’s objections to the planned China-Pakistan Economic Corridor on the ground that its route passes though “a disputed territory in Pakistan-controlled part of Jammu Kashmir state”.

“What disputed territory,” Mr. Dar angrily asked as he mentioned the projected economic benefits of the corridor as a “game-changer” in the region and said: “Gilgit-Baltistan is part of Pakistan. Azad Kashmir is part of Pakistan.” Part of the 3,000km corridor to link Pakistan’s Gwadar port with Kashgar in China’s north-western autonomous region of Xinjiang, will pass through the Gilgit-Baltistan region. The region is governed by a Pakistan-appointed governor and bureaucrats from Islamabad. While Azad Jammu Kashmir has its own elected President and Prime Minister, both elected by the region’s legislative assembly but its legality is undermined by the Ministry of Kashmir affairs and Kashmir Council headed by chief executive of Pakistan.

The motivations behind Minister’s claim over Gilgit-Baltistan and Azad Kashmir are fundamentally in contrast with the constitution of Pakistan and that of the International Law. This claim, more pertinently, dangerous to legal rights of Kashmiri people and the support of international community. Statement of such nature on ministerial and cabinet level exposes the real motives behind the vocal support of Kashmiri’s right to self-determination.  However, a country undermines its raison d’être if either it cannot provide nominally adequate governance to its own people, or is derelict with regard to the internationally acknowledged rights of a people, for the effective support of which it assumed legal responsibility.

Finance minister’s statement and Pakistan’s action to make Gilgit Baltistan a de facto province have not gone unnoticed by the dedicated Kashmiri citizens. Kashmiris have grown increasingly disconcerted by the double standard of Pakistan’s stance over Kashmiris right-to-self-determination and by increased domination from Islamabad. It is increasingly clear that Pakistan’s heavy-handed, self-interested meddling in her occupied territories of Jammu Kashmir has even opened the eyes of those Kashmiris as well, who are favoring the State’s accession to Pakistan. By doing so Pakistan has seriously damaged its credentials in the eyes of most Kashmiris. Apart from clearly violating international law with its actions in Gilgit Baltistan, Pakistan may unwittingly be creating much larger legal and diplomatic problems: a threat to international peace and security because of the strategic location of Gilgit-Baltistan being located at the corridor of South and Central Asia.

International law prohibits such actions, which are based exclusively on the unilateral decisions of the occupying power and not on a decision by the occupied state or territory. Of course the occupying power usually tries to give some flavor of legality and justification to the new unit, as it is done in case of Gilgit Baltistan by appointing a governor and shadow cabinet with the co-operation of certain elements among the population of the occupied territory, but it is obvious that they are in fact subservient to the will of Islamabad. Such practices are incompatible with the traditional concept of occupation (as defined in Article 43 of the Hague Regulations of 1907) according to which the occupying authority is to be considered as merely being a de facto administrator not the permanent owner of the occupied territory. This provision of the Hague Regulations is not applicable only to the inhabitants of the occupied territory; it also protects the separate existence of the territory, its institutions and its laws.

Pakistan prima facie, backs Kashmiri’s right to self-determination (under Indian occupation) and the implementation of UN Resolutions on Kashmir, yet in practice on one hand, it continues to remain a breach of the UN requisites and on the other has led limitations, under sections 4(7)(2), 19(2), 31(3) and 56 of the Constitution Act 1974 of Azad Jammu Kashmir. Under Section 4(7)(2)- “ No person or political party in Azad Jammu and Kashmir shall be permitted  to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the State’s accession to Pakistan”.

It has practically annexed 28000 square miles area of Gilgit-Baltistan with two million inhabitants by deploying a governor from Pakistan. Is Pakistan’s situation really that unique when it comes to the right of self-determination of Kashmiri people? It would appear to be a very narrow and ineffectual explanation of international law if the rights granted to civilians under the 4th Geneva Convention are marginalized in every case when it cannot be determined who has the legal ownership to the land under occupation. It also violates the Article 1.1 of the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social, and Cultural Rights to which Pakistan is a party and signatory.

Article 1.1 of the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social, and Cultural Rights stated that “all people have the right to self-determination. People are free to determine their political future and pursue their economic, social and cultural development by virtue of this right.” This article bears significance in that it represents the first shift in the rights of self-determination from “states” to “peoples.” Paragraph 6 of the General Assembly Resolution 1514 offers an evidence for the real meaning of the rights of “people” to self-determination. It states, “Any attempt aimed at the total or partial disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.” This statement suggests that international law does not provide minority of the people in a disputed territory with the right to unilaterally decide. “People” have the right to decide, but this term encompasses the entirety of the nation’s citizenry. And the entirety of Kashmiri people is embedded in the State Subject Notification No. IL-84 dated April 20, 1927, UNSC and UNCIP resolutions.

Principle VII of the “Declaration on Principles” in the Helsinki Final Act (August 1, 1975) also protects the rights, freedoms and legitimate interests of the people in a territory. As a party to both the Geneva Convention and the International Covenant on Civil and Political Rights, Pakistan is obliged to follow standards of human rights enshrined in these treaties. Pakistan declares that India has committed gross violations of human rights in Jammu Kashmir, thereby violating international law and justifying Kashmir’s right to self-determination under Indian occupation but when it comes to constitutional and human rights of the Kashmiris living under Pakistani occupation her interpretations of human rights are different.

Article 4 of the Geneva Convention states that “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals.” By the fact that Pakistan has occupied a territory that was inhabited by civilians who are not Pakistani citizens in presence of article 257 of constitution of Pakistan (i.e. State subjects of Jammu Kashmir), this makes the Fourth Geneva Convention applicable, and de jure, makes Pakistan’s control of the territory an occupation.

Pakistan’s refusal to recognize Gilgit Baltistan and Azad Kashmir parts of disputed state of Jammu Kashmir emphasizes the view that it will continue to direct the hidden discourse on Kashmir and therefore the impasse will also continue. At this critical juncture of history, when Pakistan is making efforts to annex Gilgit-Baltistan, denying her natives the fundamental rights of ownership in their native land then how it is possible that it will continue to support the inhabitants of Indian controlled Kashmir. Such a dual standard will harm the collective political interests of Kashmir people as well as a serious breach to the international law. The statement of Mr. Dar is also a litmus test for all those state subjects struggling for the reunification of their divided and occupied country, Jammu Kashmir. If the Kashmiri people did not take the federal minster of Pakistan’s statement seriously, then the moment is not that far when another Chirag Baig would be landing at Muzaffarabad as the first governor of Azad Kashmir.

(Nayyar N Khan is a US based human rights and peace activist of Kashmiri origin. His area of expertise is International Peace and Conflict Resolution. He can be reached at globalpeace2002@hotmail.com)

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