Daily Diary (DD) - Day 330 of 2021

2257hrs:

After watching the following video yesterday I felt compelled to elaborate further on it, not least for its potential utility to help us clarify the constitutional status of Jammu Kashmir & Allied areas (JKA):

This video was an interview conducted by Syed Muzamil Hasan Zaidi - Managing Editor of Pakistan Now and the interviewee was Owais Anwar - Director of Research at the Research Society of International Law (RSIL) in Pakistan.

I will just transcribe some important parts of the footage, for possible current discussion and future reference.

Note: 

1) I have paraphrased some of the interviewee's sentences, including translation of some of the Urdu phrases he used.

2) I have made comments in brackets for clarity.

3) The time of that part of the conversation has been added for ease of reference.

1:06 

International Commission of Jurists do not accept India's steps to nullify engagement of international community (UN) in 1957 viz. Constituent Assembly of J & K.

1:22

What is the status of this 'thing'? 

(My note of clarification; The 'thing' he is referring to is the territory of Jammu Kashmir & Allied areas - JKA - n.b. I'm using the acronym JKA to simplify the territory in question without excluding any part of the erstwhile pre 1947 British Indian princely State)

Pakistan alleges that India is in Occupation of this territory. 

Occupation...Maqbooza Kashmir etc. has become a normal part of our language....it is a very legal term - an IHL term..a category of..international humanitarian law - essentially an occupation is a type of war...

..and what is its definition? An unconsented to..effective control...establishing control without permission...an unconsented effective control over a territory that you don't have sovereign title to....

(As an example) Title deed is what you have over your home and property...that is how it is your house...as you have that title deed..

Now...Say I come in and I kick you out of your house..I stay there..I've occupied it..as I have effective control over it...I'm not invited by you and I don't have sovereign title to this...I don't have title deed...it is not in my name..

2:12

This is essentially what Pakistan is claiming India has done.  

2:26 

at RSIL....Hum Kashmir ke liye jaan de ne ke liye tyar hain lekin research karney ke liye tyar nahi hain (translation: We are ready to give our lives for Kashmir but are not ready to research the subject)

2:34

India in response? (Question by interviewer)

It argues:

- (JKA) is an integral part of our territory..on account of Maharajah's accession.

- We then promised a plebiscite but the invaders never left 

- Then Kashmiris decided on joining us fully (viz. Constituent Assembly 1957)

- That ends matter but Pakistan is in occupation (of AJK and GB)

3:00 

So, what is an occupation?

No sovereign title...Does India have sovereign title? They quote Maharajah's accession...but sovereign title does not shift until all link with the previous sovereign ends

...If I transfer title (over my house) to you, it only becomes your house when I receive all my money and go my own way..that never took place...the maharajah in the (alleged) instrument of accession (as India doesn't have a copy of the original) says....I retain sovereignty over many things (apart from defence, communications/currency & foreign affairs) and that I can go into any other agreement after this.

..so that is how India got permission to send its soldiers in and defend it against the tribal invasion (which the interviewee Owais Anwar describes as an act of defence against the Maharajah's brutal killings there)

..so sovereignty never shifted...even Mountbatten had put in a condition that there had to be a reference to the people and only then will this instrument of accession fully happen. So, this accession was never fully executed.

Is Indian army a hostile army? 

Yes...because that is the tool they are using to deny the local people their right to self determination. So, India exercises effective control.  

(Interviewer asks) What can we do (As in Pakistan?)

We can't do anything in the UN Security Council as India is diplomatically much stronger than us and we would likely face a veto from the US, Britain and France (as we previously saw with the Soviet Union/Russia)

ICJ (International Court of Justice)?

All routes to the ICJ has been closed by India...there are essentially 4 ways of taking it there..all blocked by India

Namely:

1) That we are commonwealth countries and cannot be adversarial in ICJ.

2) J & K is an internal matter.

3) Cannot bring up security issues at this forum. 

4) Cannot bring up matters of determining territory here.

6:40

These are (effectively) their (India's) terms for accepting the jurisdiction of the ICJ. India's terms have more weight than Pakistan at this forum.

Other option is getting an advisory opinion (which is not binding) but has weight because it has ICJ judges..

(political gamble there too? interjects interviewer) 

Indeed...again do you have enough votes in its General Assembly or any of the UN's special organs that have the authority to send a reference to the ICJ for an advisory opinion?

7:24

It would be very embarrassing for Pakistan if we weren't able to muster enough votes there.

(Ref. Revocation of Article 370)

The Indians re-interpreted article 370 in order to revoke it and didn't use due procedure ....(which I thought was a good description)

........End of transcription notes

..............

I thought it refreshing that a learned Pakistani was using reasonably neutral language to describe India and Pakistan's respective counter claims. I didn't agree with everything he said and noted some important omissions. For example, what doesn't give sovereign title to India is also what doesn't give sovereign title to Pakistan. 

In the context of my Pakistani flag lowering case in Dadyaal (21/08/2020) I contend that this discussion could provide important reference in due course.

Thus, I began sending the above video's link to a small number of co-citizens (legal experts, academics and activists) and a few foreign academics too who take an interest in this region's affairs.

This was my pitch to them:

I just want to be clear. Does Pakistan not have the same status as India in this equation and hasn't Pakistan taken similar steps to India in integrating the parts under it's control...political/constitutional wizardry, demographic change, bifurcation etc.?

I particularly liked, "We want to die for Kashmir but don't want to research it."

........

This morning I began receiving some responses:  

Manzoor Gilani 

(Retired Chief Justice of Supreme Court of AJK who also has the rare honour of having practiced law in Srinagar, Delhi, Islamabad and Muzaffarabad during his career)

The answer is now India has streamlined the parts of Kashmir in main land under constitution & made Kashmiris purportedly equal to Indians under threat of gun. 

It is negation of Indian independence Act, UNCIP resolutions, even against accession document and condition attached to it by Governor General and commitment of its leaders. 

People of Kashmir valley are 99% averse to Indian control by force, it makes Indian control an Occupation. 

Pakistan has also practically streamlined parts of Kashmir in its control but not under constitution and with out rights equal to other Pakistanis, however people here are not averse to Pakistani control but seek empowerment equal to other Pakistanis, pending resolution of issue, it is not Occupation.

India claims whole of the state as its part & has included it in constitution, but  Pakistan has not and does not, it has a political claim only under UNCIP resolutions; 

India does not accept UNCIP resolutions but Pakistan does, however it too has violated some  parts of it e.g. merger of Kashmir armed forces and absence of local authority. 

As for withdrawal of forces is concerned in case of plebiscite, both are responsible. 

End...

My Response (hereafter MR)

Thank you for that informed response. Much appreciated.

.....

A senior bureaucrat in the AJK Government 

(whom I can't name at this stage to avoid complications)

Taking similar steps as India means that we have merged one part of the kashmir territory in Pakistan which is against the UNSC resolutions on Kashmir. This may have weaken our position on Kashmir. 

Secondly as far as the matter of demographic change by the indian side is concerned, as such this matter is not relevant to us as we have 100% Muslim population in AK.

End....

MR

Thank you for your informed response, although I think your second point about demographic change in AJK and GB may not hold water, as settling people of other nationalities in these territories still constitutes demographic change. Settling Muslims here gives India all the more rationale for settling Indian Hindus on the other side. 

This also makes this dilemma a political problem motivated by religion. Given that Jammu Kashmir & Allied areas are a multi religious territory in total, this renders the matter unsolvable. 

It also gives the impression to the wider international community that we want Muslim majoritarianism to apply here but demand equal rights for Muslims wherever they are minorities elsewhere. Thus, our humane arguments are rendered contradictory and self-fulfulling.

End...

.....

 

Nazir Gilani 

(A jurist and authority on the UN mechanism on JKA. He is also head of Jammu Kashmir Council on Human Rights - JKCHR - an NGO which is in special consultative status with the United Nations)

1) It has been 74 years, 3 months and 14 days since the Standstill Agreement between Jammu Kashmir and Pakistan.

2) It has been 72 years, 6 months and 30 days since the divisive Karachi Agreement between Pakistan and Azad Jammu & Kashmir (AJK).

3) It has been 74 years and 30 days since the conditional and limited accession between Jammu Kashmir and India.

4) It has been 73 years, 10 months and 11 days since the Indian government surrendered its accession document at the United Nations (UN).

5) It has been 844 days since India's (seemingly unilateral) action on the 5th of August 2019.

6) It has been 3 years, 5 months and 12 days since the office of the United Nations High Commissioner for Human Rights (UNHCHR) published its first human rights report on this territory.

The question is: What have 'Kashmiris' done during this period of time?

Just making demands to India and Pakistan is not the solution to the problem.

Neither is posting published statements of local newspapers in AJK - on social media - the solution.

Sitting down and putting our heads together for creating unified action is needed.

End...

MR

Thank you. Your last sentence is crucial.

End...

.....

I was also able to post a comment on the Facebook page where this video is hosted too:

I know Indians and Pakistanis have diametrically opposite views on this subject but from an internal Jammu Kashmir & Allied areas (JKA) narrative; this interview has done much to clarify the concept of sovereignty of this territory. 

It is clear that no country holds sovereign title (title deed of ownership) to this territory and that every change that has happened since the 15th of August 1947 is conditioned or subjected to the people's reference (the local inhabitants as classified according to the state subject rules of 1927). This gives sovereign title to the people of this territory. 

Both India and Pakistan as well as the rest of the world should respect the local people's 'Right to Rule' and defer to them any possible future decision to accede or enjoy any other relationship with any other country. No country and indeed many of the people of this territory have not respected that fundamental, legal and constitutional right.

End.....

...........

I also felt it opportune to highlight this thread as part of a retweet of the following message:

A harsh reality deserving the attention of our #AJK diaspora. The constitutional status of #JandK & Pakistan's inability to do anything about it can be extrapolated by referencing - 2 bright Pakistanis no less - from the following discussion emerging at: https://t.co/StvCWEgGxD https://t.co/uoo1GID8px

— Tanveer Ahmed (@sahaafi) November 26, 2021

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