NEW DELHI: The Union government is worried that Pakistan will quote the highly biased report of Jurists on Kashmir at every available international forum to embarrass In- dia.
The release recently of the report in Geneva by the ICI has revived the debate in government circles on whether India should have given the ICJ the importance and assistance it did, especially after it was known that the ICJ mission had exceeded its brief when it visited Jammu and Kashmir in September 1993.
These officials feel that India itself lent legitimacy to the ICJ’s task by working with it. India had gone out of its way to explain its stand to the ICJ, which the latter largely rejected. The government even gave a detailed re- ply to the report, generally denouncing it, which appeared as an appendix to the report. India, they say, could have released its reply separately.
The report, which a Kashmir watcher described as “permissions,” has opined that the people of Jammu and Kashmir had acquired a right to self- determination at the time of partition in 1947, and that it still exists because, it has neither been exercised nor abandoned. The ICJ members have concluded that because of the extent of support for independence within Kashmir, to hold a single plebiscite of the whole state offering a choice between accession to India or Pakistan would be disastrous. Therefore, each unit of the state, it said, should be allowed to exercise this right separately.
Since the ICJ team arrived in India in September 1993 soon after India was beginning to implement its policy of transparency in Kashmir, it went out of its way to assist and give information to the team on the contentious issues involved there.
Then again after the draft report was given to India, the then home secretary, N.N. Vohra, was dispatched to meet the ICJ team to once again ex- plain India’s stand and express its opposition to the conclusions drawn in the report. Even then it was argued by some officials that India need not bend over backwards to justify what it was doing. Since the ICJ team had made up its mind on the contents of the report, there was little that Indian arguments could achieve.
India gave a long reply, generally rejecting the conclusions of the re- port. The report almost seeks to legitimize the Pakistani argument that simply because the Valley is dominated by Muslims, it should go to Pakistan.
India has never been happy about the reports prepared by Amnesty International and other such organizations. The difference in those reports and those of the ICJ is that, first India cooperated with it and allowed it to go to Kashmir, and secondly the ICJ mission went overboard when it started talking about the issue of self- determination. Amnesty and others normally focus on human rights is- sues. Besides, they have never been allowed to go to Kashmir. The Indian government normally gives a reply to the queries sent by Amnesty. Besides, Amnesty International’s credibility has been eroded by the controversy over the photograph of a South Indian woman deliberately portrayed as a Kashmiri woman.
The reply of Prof. Maurice Mendelson, Q.C. a British expert on public international law, used as an appendix to the report, which has been mentioned in the media here only in passing, makes several relevant points on the issue of the plebiscite and the right of the Kashmiris to exercise it. The Indian government had sought his independent opinion on the report. Prof. Mendelson has said:”The discussion on how the right (of self- determination) should be exercised is strictly irrelevant. However, mention should perhaps be made of some remarkable and unjustified assumptions, conclusions and recommendations (in the report). If (contrary to my view) the people of JK have a right of external self-determination, this must be for the whole people i.e. the inhabit- ants of the whole territory formerly under the Maharaja’s sovereignty. This seems to be conceded, yet the report goes on to focus almost exclusively on the part under Indian control to the exclusion of that under Pakistani control. Almost the only observation regarding the latter in this con- text relates to Pakistani support for militants. The authors then compound this error with another. They go on to recommend that ‘the state of JK comprises a number of different units which should be allowed to exercise the right of self-determination separately, the reason proffered being ethnic and religious diversity.
The fact that, in the mission’s view, not all units may wish to become independent or join Pakistan is not to the point, according to its reasoning they must have a right to do so. But in fact, there is no warrants in law for this type of fragmentation of the “people” and, as noted above, the international community and international law have firmly set their face against the “Bosnilanization” that this might entail.”
Rubbishing the report, Prof. Mendelson has said that if the ICJ mission’s recommendations are implemented they could endanger international peace and security. They could, “the authors’ protestations not withstanding” create a precedent for demands to break up India and other multi-ethnic, multi-denominational states, with potentially disastrous con- sequences, not for existing structures but also for fragile inter-communal peace. Besides, breaking up JK is likely to create other political and human rights problems. Finally, he has concluded:”Using religion as the sole, or a major, criterion for defining a political unit is not self-evidently desirable. It is not necessarily a person’s only or most important affiliation, and there are potential human rights problems here, too. Furthermore, hatred of other groups, identified on the basis of their religion, has been one of the main causes of horrific bloodshed in the subcontinent and elsewhere. Accordingly, to single out religion as the basis of a polity is not necessarily a progressive step. There are dangers to which a mission report goes on to focus almost exclusively on the part under Indian control to the exclusion of that under Pakistani control. Almost the only observation regarding the latter in this con- text relates to Pakistani support for militants. The authors then compound this error with another. They go on to recommend that “the state of JK comprises a number of different units which should be allowed to exercise the right of self-determination separately, the reason proffered being ethnic and religious diversity. The fact that, in the mission’s view, not all units may wish to become independent or join Pakistan is not to the point, according to its reasoning they must have a right to do so. But in fact, there is no warrants in law for this type of fragmentation of the “people” and, as noted above, the international community and international law have firmly set their face against the “Bosnilanization” that this might entail.”
Rubbishing the report, Prof. Mendelson has said that if the ICJ mission’s recommendations are implemented they could endanger international peace and security. They could, “the authors’ protestations not- withstanding” create a precedent for demands to break up India and other multi-ethnic, multi-denominational states, with potentially disastrous con- sequences, not for existing structures but also for fragile inter-communal peace. Besides, breaking up JK is likely to create other political and human rights problems. Finally, he has concluded: “Using religion as the sole, or a major, criterion for defining a political unit is not self-evidently desirable. It is not necessarily a person’s only or most important affiliation, and there are potential human rights problems here, too. Furthermore, hatred of other groups, identified on the basis of their religion, has been one of the main causes of horrific bloodshed in the subcontinent and elsewhere. Accordingly, to single out religion as the basis of a polity is not necessarily a progressive step. There are dangers to which a mission sent by the ICJ, of all bodies, might perhaps have been more sensitive, even apart from its very questionable legal reasoning.”
Article extracted from this publication >> March 24, 1995
