Masroor Ali Shah writes about the Kashmir issue and its implications for the rules-based international order which has been disrupted after India forcefully annexed the disputed Jammu and Kashmir region.
The abrogation of Article 370 from the Indian constitution against the will of the people of Kashmir and the forceful annexation of the disputed Jammu and Kashmir (J&K) region by the Modi government on August 5 will have some serious implications for the rules-based order and balance of power in South Asia.
Before discussing the geopolitical crisis and fumbling status quo in South Asia, it is important to highlight the legal significance of Article 370 and 35A of the Indian constitution which functioned as a thin thread which held together the seven decades-old territorial integrity of J&K.
The partition of India took place on communal lines, according to which, Muslim majority areas would join the newly formed state of Pakistan while the northern and eastern territories with mixed populations of Punjabis and Bengalis were to be divided along religious lines.
Elsewhere, the 1947 agreement insisted that the "princely states" governed by British civil servants with maharajas as rulers would become a part of either country according to the faith of its subjects.
It was decided that the ruler belonging to a different faith than his subjects would respect the will of the people. In Hyderabad where the majority population was Hindu, Indian armed forces ran over the city after its ruler delayed the state’s accession to India.
When Maharaja Hari Singh of Kashmir delayed the state’s accession to Pakistan, the situation turned restless since it was assumed that the ruler would respect the faith of his subjects.
Despite the fact that General Douglas Gracey, who headed the Pakistani army back then, decided against any use of force in Kashmir, the Pakistani government sent Pashtun tribesmen along with serving army officers to take Srinagar and settle the issue. The force sent by Pakistan was unorganised and lacked discipline. These factors helped the Indian security forces to reach Srinagar airport.
In October 1947, Hari Singh signed the "Instrument of Accession" in India’s favour amid growing tensions. On October 27, the governor-general of India accepted the Instrument of Accession on the condition that "as soon as law and order was restored in Kashmir and her soil cleared of the invader, the question of the State`s accession should be settled by a reference to the people". Hence, it was supposed to be a temporary and conditional accession.
An armed conflict soon ensued between India and Pakistan which resulted in both the government’s referring the issue to the United Nations Security Council (UNSC).
The UNSC, in its 39th resolution passed on January 20 1948, and 47th resolution passed on April 21 the same year, decided to set up a UN commission to investigate allegations leveled against each other by India and Pakistan and advised both the countries that Indian troops and the tribesmen should withdraw from the valley, an interim government should be established to represent the major Kashmiri political groups and a five member UNCIP team should go to Kashmir to help restore peace and arrange a fair plebiscite that would decide whether J&K was to accede to India or Pakistan.
But demilitarisation never happened on both sides of the border nor was a fair plebiscite held in the region. Instead Indian political leadership gave legal cover to the Instrument of Accession when it framed its first constitution in 1950 through negotiation with the then popular nationalist Kashmiri leader Shaikh Abdullah.
India included Article 370 and 35A in its constitution and portrayed it as an interim system which gave constitutional cover to the Instrument of Accession by exempting J&K from provisions of the Indian constitution, granting the region a special status. This move restricted the Indian parliament`s legislative power over the valley to three subjects only, including defence, foreign affairs and communications. It also protected the right of Kashmiris over their native land until the disputed nature of the region was decided by the will of its people per the Instrument of Accession and the UNSC resolutions.
Hence, as stated above, Article 370 and 35A owe their existence to the conditional accession of Kashmir to India and the disputed status of Kashmir as per international law. The unilateral and forceful abrogation of these articles through presidential order not only violates domestic law, but more importantly, it undermines the very link that binds J&K to India while also threatening the rules-based order in South Asia.
It undermines the 70 year long status quo in Kashmir which regulated Indo-Pak relations and balance of power in South Asia. The undermining of the territorial status quo in the valley and rule-based order in South Asia has something deeper to imply than these legal technicalities.
Henry Kissinger’s book titled "World Order" starts with an example of his encounter as a young academician with President Truman in Kansas City where he asked him about the proudest moment during his presidency. Truman replied in these words: "That we totally defeated our enemies and then brought them back into the community of nations. I would like to think that only America would have done this".
The 'community of nations' is actually the post-war rules-based order among nation-states with its international liberal economic, legal and rights bodies. The above words by Kissinger implicitly tell us that this rule-based order is a postwar consensus backed and guaranteed by US power. This is true if we look into the nature of international law.
Unlike national law which qualifies itself as law in terms of jurisprudence because it is backed by legitimate monopoly over violence by a nation-state, international law has no such backing and its function as a law depends on global consensus and balance of power regulated by an international stabilising force. In postwar capitalist world order, the US acted as that stabilising force to develop liberal consensus among the international community.
Although, the US and its most favourite allies like Israel kept on violating international law, (especially Israeli unlawful annexation of West Bank, Eastern Jerusalem and Golan Heights in 1967) but their actions were restricted by security council resolutions and the International Court of Justice verdicts that declared Israel as an occupant of those territories. Refusal of previous US administrations to move their embassy to Eastern Jerusalem and official acceptance of Golan Heights as Israeli territory reinforced international norms among the world community.
It goes without saying that liberal international laws always had an unwritten dark and obscene side that prospered on the back of military coups, political interventions and covert CIA operations against "rogue regimes" throughout the 20th century as it was deemed necessary to protect the balance of rules-based order of the "free world" and to defeat rogue regimes and bring them back to the international fold.
Presently, all international laws are being put aside by a new constellation of rightwing populist regimes from Donald Trump to Boris Johnson to Narendra Modi and beyond.
This populism and its unilateral authoritarian actions in the oldest and the biggest liberal democracies of the world are undermining the very postwar liberal consensus and a rules-based order. The rise of ‘Trumpism’ in the US, the country’s recent unilateral actions in the Middle East and its silence over Indian aggression in Kashmir clearly tells us that the US is no more a stabilising force. Rather, its role is becoming weak as regional powers like China emerge from the shadows.
The reasons behind the weakening of the balance of power in South Asia can be found in the geopolitics of the Indo-Pacific strategy of the US and its allies like India. The reasons are highlighted in a recently published document of the US Defense Department, titled "Indo-Pacific Strategy Report: Preparedness, Partnerships and Promoting a Networked Region". Other reasons are Trump`s Afghan policy and India`s policy of connecting entire Central Asia. This document mostly talks about upgrading military preparedness, building partnerships with regional allies for burden-sharing and promoting economic connectivity in the Indo-Pacific region to contain China`s neoliberal model of development.
But this containment of Chinese influence and full actualisation of the potential of economic connectivity has remained limited due to the Afghan conflict and Pakistani establishment`s big role in Afghanistan through Taliban. Therefore, India won’t be able to fully connect Central Asia to meet its energy needs nor can it connect the wealth of the Central Asian regions to the whole of Indo-Pacific region as long as the Afghan problem haunts Uncle Sam.
Besides, to achieve long-term strategic goals, Trump needs a "decent interval" - a term coined by Kissinger during the Vietnam War – the US needs honorable withdrawal of ground troops from Afghanistan after finalising a deal with the Taliban to accept a 'constitutional formula' along with the Afghan government before the presidential elections in the US and till Trump's victory in the elections on Afghan agenda. This "decent interval" during election period is an urgent interest of POTUS-45, though a long-term American presence in Afghanistan in various forms would continue.
Interestingly the above-mentioned strategic document doesn’t mention the name of Pakistan which was a frontline state sponsored by the free world in South Aisa for its Cold War against the Soviet bloc.
This is because history has taken a unique turn where US and its allies have built an international narrative that the Pakistani establishment with its Cold War era geopolitics is the main obstacle not only in way of finding a resolution to the Afghan problem, but to the overall connectivity of Central Asia to the Indo-Pacific region.
Consequently, Pakistan faces international isolation which would put the country in a difficult economic sitution owing to its long dependency on Western financial institutions.
The recent suspension of the Afghan peace process would further increase pressure on Pakistan. The US is now dealing with Pakistan not as a global stabilising force of liberal order but as an anxious global power coercing it to fulfill its agenda.
While Pakistan faced international isolation, populist Modi regime in India unilaterally annexed J&K, thus seriously denting the balance of power in the region. Pakistan has no option except staging weak resistance through hollow diplomatic statements, half hour protests every week and Imran Khan’s recent "traditional verbose" at the UN General Assembly.
The weakening of the rules-based order and balance of power always throws the world into chaos. Is it time to become a realist and liberal to demand restoration of balance of power and rules-based order? It is the only way to avoid the chaos which we see in countries like Syria which ensued when the stalemate was broken in the Middle East. One can also grasp the unknown elements of the system and reinforce it with new political language like the Kurds are doing in the form of 'democratic confederation' amidst Syrian crisis.
Such a situation also provides an opportunity for oppressed nations like Kashmiris, Baloch, Palestinians, Sindhis and Pashtuns to dent the status quo and think of liberation in non-nation state terms and beyond the rules-based order. These are the unsettling realities which would be faced by every oppressed nationality in the subcontinent amid a fluctuating balance of power in South Asia.
The abrogation of Article 370 from the Indian constitution against the will of the people of Kashmir and the forceful annexation of the disputed Jammu and Kashmir (J&K) region by the Modi government on August 5 will have some serious implications for the rules-based order and balance of power in South Asia.
Before discussing the geopolitical crisis and fumbling status quo in South Asia, it is important to highlight the legal significance of Article 370 and 35A of the Indian constitution which functioned as a thin thread which held together the seven decades-old territorial integrity of J&K.
The partition of India took place on communal lines, according to which, Muslim majority areas would join the newly formed state of Pakistan while the northern and eastern territories with mixed populations of Punjabis and Bengalis were to be divided along religious lines.
Elsewhere, the 1947 agreement insisted that the "princely states" governed by British civil servants with maharajas as rulers would become a part of either country according to the faith of its subjects.
It was decided that the ruler belonging to a different faith than his subjects would respect the will of the people. In Hyderabad where the majority population was Hindu, Indian armed forces ran over the city after its ruler delayed the state’s accession to India.
When Maharaja Hari Singh of Kashmir delayed the state’s accession to Pakistan, the situation turned restless since it was assumed that the ruler would respect the faith of his subjects.
Despite the fact that General Douglas Gracey, who headed the Pakistani army back then, decided against any use of force in Kashmir, the Pakistani government sent Pashtun tribesmen along with serving army officers to take Srinagar and settle the issue. The force sent by Pakistan was unorganised and lacked discipline. These factors helped the Indian security forces to reach Srinagar airport.
In October 1947, Hari Singh signed the "Instrument of Accession" in India’s favour amid growing tensions. On October 27, the governor-general of India accepted the Instrument of Accession on the condition that "as soon as law and order was restored in Kashmir and her soil cleared of the invader, the question of the State`s accession should be settled by a reference to the people". Hence, it was supposed to be a temporary and conditional accession.
An armed conflict soon ensued between India and Pakistan which resulted in both the government’s referring the issue to the United Nations Security Council (UNSC).
The UNSC, in its 39th resolution passed on January 20 1948, and 47th resolution passed on April 21 the same year, decided to set up a UN commission to investigate allegations leveled against each other by India and Pakistan and advised both the countries that Indian troops and the tribesmen should withdraw from the valley, an interim government should be established to represent the major Kashmiri political groups and a five member UNCIP team should go to Kashmir to help restore peace and arrange a fair plebiscite that would decide whether J&K was to accede to India or Pakistan.
But demilitarisation never happened on both sides of the border nor was a fair plebiscite held in the region. Instead Indian political leadership gave legal cover to the Instrument of Accession when it framed its first constitution in 1950 through negotiation with the then popular nationalist Kashmiri leader Shaikh Abdullah.
India included Article 370 and 35A in its constitution and portrayed it as an interim system which gave constitutional cover to the Instrument of Accession by exempting J&K from provisions of the Indian constitution, granting the region a special status. This move restricted the Indian parliament`s legislative power over the valley to three subjects only, including defence, foreign affairs and communications. It also protected the right of Kashmiris over their native land until the disputed nature of the region was decided by the will of its people per the Instrument of Accession and the UNSC resolutions.
Hence, as stated above, Article 370 and 35A owe their existence to the conditional accession of Kashmir to India and the disputed status of Kashmir as per international law. The unilateral and forceful abrogation of these articles through presidential order not only violates domestic law, but more importantly, it undermines the very link that binds J&K to India while also threatening the rules-based order in South Asia.
It undermines the 70 year long status quo in Kashmir which regulated Indo-Pak relations and balance of power in South Asia. The undermining of the territorial status quo in the valley and rule-based order in South Asia has something deeper to imply than these legal technicalities.
Henry Kissinger’s book titled "World Order" starts with an example of his encounter as a young academician with President Truman in Kansas City where he asked him about the proudest moment during his presidency. Truman replied in these words: "That we totally defeated our enemies and then brought them back into the community of nations. I would like to think that only America would have done this".
The 'community of nations' is actually the post-war rules-based order among nation-states with its international liberal economic, legal and rights bodies. The above words by Kissinger implicitly tell us that this rule-based order is a postwar consensus backed and guaranteed by US power. This is true if we look into the nature of international law.
Unlike national law which qualifies itself as law in terms of jurisprudence because it is backed by legitimate monopoly over violence by a nation-state, international law has no such backing and its function as a law depends on global consensus and balance of power regulated by an international stabilising force. In postwar capitalist world order, the US acted as that stabilising force to develop liberal consensus among the international community.
Although, the US and its most favourite allies like Israel kept on violating international law, (especially Israeli unlawful annexation of West Bank, Eastern Jerusalem and Golan Heights in 1967) but their actions were restricted by security council resolutions and the International Court of Justice verdicts that declared Israel as an occupant of those territories. Refusal of previous US administrations to move their embassy to Eastern Jerusalem and official acceptance of Golan Heights as Israeli territory reinforced international norms among the world community.
It goes without saying that liberal international laws always had an unwritten dark and obscene side that prospered on the back of military coups, political interventions and covert CIA operations against "rogue regimes" throughout the 20th century as it was deemed necessary to protect the balance of rules-based order of the "free world" and to defeat rogue regimes and bring them back to the international fold.
Presently, all international laws are being put aside by a new constellation of rightwing populist regimes from Donald Trump to Boris Johnson to Narendra Modi and beyond.
This populism and its unilateral authoritarian actions in the oldest and the biggest liberal democracies of the world are undermining the very postwar liberal consensus and a rules-based order. The rise of ‘Trumpism’ in the US, the country’s recent unilateral actions in the Middle East and its silence over Indian aggression in Kashmir clearly tells us that the US is no more a stabilising force. Rather, its role is becoming weak as regional powers like China emerge from the shadows.
The reasons behind the weakening of the balance of power in South Asia can be found in the geopolitics of the Indo-Pacific strategy of the US and its allies like India. The reasons are highlighted in a recently published document of the US Defense Department, titled "Indo-Pacific Strategy Report: Preparedness, Partnerships and Promoting a Networked Region". Other reasons are Trump`s Afghan policy and India`s policy of connecting entire Central Asia. This document mostly talks about upgrading military preparedness, building partnerships with regional allies for burden-sharing and promoting economic connectivity in the Indo-Pacific region to contain China`s neoliberal model of development.
But this containment of Chinese influence and full actualisation of the potential of economic connectivity has remained limited due to the Afghan conflict and Pakistani establishment`s big role in Afghanistan through Taliban. Therefore, India won’t be able to fully connect Central Asia to meet its energy needs nor can it connect the wealth of the Central Asian regions to the whole of Indo-Pacific region as long as the Afghan problem haunts Uncle Sam.
Besides, to achieve long-term strategic goals, Trump needs a "decent interval" - a term coined by Kissinger during the Vietnam War – the US needs honorable withdrawal of ground troops from Afghanistan after finalising a deal with the Taliban to accept a 'constitutional formula' along with the Afghan government before the presidential elections in the US and till Trump's victory in the elections on Afghan agenda. This "decent interval" during election period is an urgent interest of POTUS-45, though a long-term American presence in Afghanistan in various forms would continue.
Interestingly the above-mentioned strategic document doesn’t mention the name of Pakistan which was a frontline state sponsored by the free world in South Aisa for its Cold War against the Soviet bloc.
This is because history has taken a unique turn where US and its allies have built an international narrative that the Pakistani establishment with its Cold War era geopolitics is the main obstacle not only in way of finding a resolution to the Afghan problem, but to the overall connectivity of Central Asia to the Indo-Pacific region.
Consequently, Pakistan faces international isolation which would put the country in a difficult economic sitution owing to its long dependency on Western financial institutions.
The recent suspension of the Afghan peace process would further increase pressure on Pakistan. The US is now dealing with Pakistan not as a global stabilising force of liberal order but as an anxious global power coercing it to fulfill its agenda.
While Pakistan faced international isolation, populist Modi regime in India unilaterally annexed J&K, thus seriously denting the balance of power in the region. Pakistan has no option except staging weak resistance through hollow diplomatic statements, half hour protests every week and Imran Khan’s recent "traditional verbose" at the UN General Assembly.
The weakening of the rules-based order and balance of power always throws the world into chaos. Is it time to become a realist and liberal to demand restoration of balance of power and rules-based order? It is the only way to avoid the chaos which we see in countries like Syria which ensued when the stalemate was broken in the Middle East. One can also grasp the unknown elements of the system and reinforce it with new political language like the Kurds are doing in the form of 'democratic confederation' amidst Syrian crisis.
Such a situation also provides an opportunity for oppressed nations like Kashmiris, Baloch, Palestinians, Sindhis and Pashtuns to dent the status quo and think of liberation in non-nation state terms and beyond the rules-based order. These are the unsettling realities which would be faced by every oppressed nationality in the subcontinent amid a fluctuating balance of power in South Asia.