Elections or plebiscite?

Amjed Jaaved In his interview (Time magazine, October 2008), Obama has made some remarks that reflect his desire to see Kashmir issue resolved. During his campaign, also, he repeatedly spoke of a more active Kashmir policy. He said Kashmir was a place he wanted to “devote serious diplomatic resources to get a special envoy in there, to figure out a plausible approach”. To India’s chagrin, he has recently indicated that he was considering to appoint former president Bill Clinton his emissary on Kashmir.
India is hostile to Obama’s desire to follow an `active Kashmir policy’. India’s ennui at the US president-elect’s statement is understandable. When Clinton became the President in 1993, he made impetuous efforts to get the Kashmir issue resolved. He chose Robin Raphael, his old college mate, as his secret emissary on Kashmir. She was then a junior diplomat in the US Embassy in New Delhi. She had unlimited access, as trusted adviser to Clinton in the State Department, to political and administrative bigwigs. India abhors Clinton’s Kashmir initiatives and surmises that Raphael encouraged formation of the Hurriyat Conference and Taliban.
India is holding elections to puppet assembly in Kashmir. Leading Hindu and Muslim parties have already announced to boycott the elections. Mirwaiz has pilloried India for portraying elections as synonymous with a plebiscite. Mirwaiz’s view is in consonance with UN resolutions that restrain her from staging fake elections. The Security Council’s Resolution No 80 of March 14, 1950, reminds India `that the final disposition of the State of Jammu and Kashmir will be made in accordance with the will of the people expressed through impartial plebiscite’. The resolution pointes out that `the area [occupied Kashmir] from which such a Constituent Assembly would be elected is only a part of the whole territory of Jammu and Kashmir’.
India fears that Clinton, also, would be unimpressed by this `show of popular will’. Significantly, Raphael, also, as Clinton’s confidante, used to regard assembly elections in Kashmir as a farce. In early Oct. 1994, during her visit to Mumbai, she stated that she was not convinced with the credibility of the elections. Washington changed its position on the polls in Jammu & Kashmir in May 1995.
Raphael knows the psyche of most leaders in Pakistan and across the divided Kashmir. She has met Benazir Bhutto Asif Ali Zardari, the present President of Pakistan. She has even met Mullah Mohammad Omar, who subsequently designated himself as the Amir of the Taliban.
India expects freedom movement to gain momentum under Obama’s tenure. She is rueful that in the history of Indo-American relations, since India became independent in 1947, there have been more instances of meddling by Democrats than by Republicans. It is alleged that during incumbency of a democratic president, graph of terrorism in Kashmir goes up.
Clinton understands that only plebiscite could serve as a lasting solution of the Kashmir issue. Various options offered to solve the issue lack legal basis. The USA officially recognises Kashmir issue as an unresolved issue. The US state Department has corrected Mr. Kelly’s statement (1990) that plebiscite was no longer possible in Kashmir. Kelly’s faux pas was corrected by John R. Mallot, the US State Department’s point man for South Asia in 1993. He told the House Foreign Affairs Sub-Committee on Asia and the Pacific on April, 28 1993 that John Kelly ‘misspoke’ in 1990 when he said that the United States no longer believed a plebiscite was necessary in South Asia. Mallot clarified that Kelly made his comment after ‘continued grilling’ by the panel’s (pro-India) chairman, Stephen J. Solarz of New York. A reference to Solarz-Kelly conversation and corrective policy action taken by the US State Department finds mention in Robert G. Wirsing’s book India, Pakistan, and the Kashmir Dispute, published by Macmillan Press Limited, London in 1994. Nevertheless, the correction remained un-noticed by most people misguided by Kelly’s speech.
Madeleine Albright, former US Secretary of State, also believes that a plebiscite is the only way to ascertain the wishes of the Kashmiri people. She expressed this view in her concluding address to the Peace Conference held in New Delhi on December 13, 2003. In response to Omar Abdullah’s question, whether there was an alternative approach to the plebiscite, she replied that she knew of no other option except plebiscite or referendum. A practical framework for holding the plebiscite is contained in Sir Owen Dixon’s proposal submitted to the United Nations in 1950.
India is bound to hold a plebiscite under UNCIP Resolution of August 13, 1948 (Para 75, Serial No 110, Part II) and UNCIP resolution of January 5, 1949 (Para 51, Serial No 1196). India should abide by the cardinal principle in inter-state relations that is pacta sunt servanda ‘treaties are to be observed’. Even if disinterested, India cannot disown her plebiscite obligation as under UN charter, self-determination is not only a political but also a legal right.
There are fifteen UN’s resolutions that acknowledge Kashmiris’ right of self-determination. Self determination is a jus cogen (peremptory norm) of international law, enshrined in Article 1:2 of UN Charter. Simla Accord also binds India to the plebiscite. Paragraph 1(i) of the Simla Agreement provides ‘The principles and purposes of the Charter of the United Nations shall govern the relations between the two countries’.
To conclude, elections in occupied Kashmir are a ruse. Both India and Pakistan are bound to hold a plebiscite to determine future status of the disputed state of Kashmir. The demand for plebiscite is well supported by bilateral and multilateral agreements, besides the UN charter and jus cogens of international law. The alternative options or figments of imagination peddled on Track II are nullities in the eyes of law. Non-compliance of an agreement does not antiquate it. Aside from legal considerations, all religions call for abiding one’s promises.
India is a ‘unique country’ nowadays hobnobbing with the USA as the world’s largest democracy. Does this unique democracy have no respect for its promise or morality? India should seize the opportunity under Obama’s administration to resolve the dispute. http://www.thepost.com.pk/Arc_OpinionNews.aspx?dtlid=192823&catid=11&date=11/19/2008&fcatid=14