by Nilesh Kunwar

Observed by Pakistan as right to self-determination day for the people of Kashmir, January 5 saw its president, prime minister and political leaders urging the international community to help implement UN resolutions on Kashmir by holding a plebiscite in J&K. Public demonstrations were also organised to draw global attention on this issue, but like always, this perfunctory annual ritual failed to impress the international community, which raises the pertinent question- why is it that despite invoking UN resolutions on Kashmir, no one takes Pakistan’s Kashmir narrative seriously?

From Islamabad’s perspective, being under India’s “illegal occupation” J&K is “disputed territory” and hence it wants a plebiscite as envisioned in UNSC Resolution 47 to be held to ascertain whether its people wish to remain with India or become part of Pakistan. Islamabad's contention may appear convincing, but on closer scrutiny it becomes amply clear that its arguments are derived by distorting facts. Furthermore, by doing what it shouldn’t have done and not doing what needs to be done, Islamabad has scuttled its own Kashmir narrative.

Pakistan's claim of India having illegally occupied J&K has no legal basis whatsoever. The instrument of accession is a legal document drawn from The Government of India Act 1935, through which rulers of princely states existing at the time of Independence and partition of India could accede to either the dominion of India or Pakistan. As these instruments of accession were signed by rulers in exercise of their “sovereignty in and over” their respective states, their decision was both legal and irrevocable.

The ruler of J&K Maharaja Hari Singh signed the instrument of accession on October 26, 1947 and accession of the State to India was formally accepted by India’s Governor General Lord Mountbatten the next day. Hence, Pakistan’s assertion that India is in illegal occupation of J&K is mere rhetoric sans substance. Yet, purely for taking this argument forward and exposing Pakistan’s doublespeak, let’s momentarily assume that J&K is “disputed territory.” If this is the case, then Islamabad needs to answer two questions to justify its claim.

One, if India is indeed in “illegal occupation” of J&K, why hasn’t the UNSC declared J&K as such or made even a passing reference of the same? Two, if UNSC has not taken any action to remedy Pakistan’s perceived allegation, then why hasn’t Islamabad filed a case against India in the International Court of Justice (ICJ) for more than seven-and-a-half decades? While Islamabad has never explained its failure to do so, the answer is nevertheless simple. Knowing very well that this ridiculous complaint will be out rightly rejected by ICJ, Islamabad has cunningly limited its Kashmir related protests to high decibel rhetoric!

After 370 abrogation, Islamabad levelled allegations on genocide in J&K and though then Foreign Minister Shah Mehmood Qureshi pompously declared that "An in-principle decision has been taken to take the issue of Kashmir to the ICJ," but this never happened. While Islamabad didn’t disclose the reasons thereof, its ICJ lawyer Khawar Qureshi admitted that "In absence of these evidences (of genocide), it is extremely difficult for Pakistan to take this case to the ICJ."

Furthermore, it’s common knowledge that those staking claim to any disputed asset have no ownership rights whatsoever over the same till the case is resolved by the competent legal authority. So the Islamabad needs to explain that if J&K is ‘disputed territory’, how did it unilaterally cede the 5,180 square kilometers Shaksgam Tract (which is part of J&K under the illegal occupation of Pakistan) to China in 1963 under the Sino-Pakistan Agreement? By doing so, hasn’t Pakistan demolished its own ‘disputed territory’ narrative?

Next is the incessant demand for holding plebiscite in J&K that Islamabad makes at every conceivable occasion. While UNSC resolution 47 does mention plebiscite, it also lays down the mandatory prerequisites that have to be implemented before any plebiscite can be held. As per this UNSC resolution, Pakistan has to “secure the withdrawal of all Pakistani nationals from the “State of J&K” as well as “provide full freedom to all subjects of the State, regardless of creed, caste, or party, to express their views and to vote on the question of the accession.”

However, Pakistan hasn’t yet withdrawn its nationals from the parts of Pakistan occupied J&K (PoJK) under its illegal control even though it’s the first obligatory requirement mandated by UNSC. Furthermore, Para 7(3) of (PoJK) constitution states that “No person or political party in Azad Jammu and Kashmir (PoJK) shall be permitted to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the State’s accession to Pakistan.” Since PoJK residents are constitutionally debarred from expressing their free will, how can an impartial plebiscite as envisioned by the UNSC be conducted?

This was highlighted by India in September 2016, while exercising its right to reply in response to a statement by Pakistan under the Agenda Item 3 during the 33rd session of the UN Human Rights Council. Adeptly exposing Islamabad’s duplicity, India’s spokesperson highlighted that “Pakistan keeps referring to UN Security Council Resolutions on Jammu & Kashmir. However, it very conveniently forgets its own obligation under these resolutions to first vacate the illegal occupation of Pakistan Occupied Kashmir.” Unfortunately, New Delhi isn’t hammering-in this matter-of-fact argument that takes the wind out of Pakistan’s sails with the force it rightly deserves.

As its attempt to internationalise the Kashmir issue through its January 6 ‘right to self determination day’ has been a dismal failure, Islamabad may consider revisiting its terminally infirm Kashmir narrative and come up with something better before it observes what it refers to as ‘Kashmir solidarity day’ on February 6. And heeding to Abraham Lincoln's astute observation that "you can fool some people all the time, and all the people some of the time, but you can't fool all the people all the time" would do Islamabad a lot of good!

Nilesh Kunwar is a retired Indian Army Officer who has served in Jammu & Kashmir, Assam, Nagaland and Manipur. He is a keen ‘Kashmir-Watcher,’ and after retirement is pursuing his favourite hobby of writing for newspapers, journals and think-tanks. Views expressed above are the author's own