Some Conclusions

chapter 7 Some Conclusions

The overall aim of this book is to reappraise the 70-year-old unresolved Kashmir question from the perspective of international law. In the preceding chapters, there are in-depth discussions on key issues such as the historical statehood of Kashmir and its occupation; the substantive law on statehood, restoration of historical title, illegal occupation, state identity, continuity and recognition,1 and self-determination through decolonisation; the presence of the unrep- resentative Pro-Indian Government and human rights violations;2 and the international community’s legal commitments in relation to the Kashmir question. The previous chapters explained why states’ foreign policy should change from accepting the status quo to aligning their actions to the accepted legal position. This study demonstrates that Kashmir was a functional historical state un- der Dogra rule for a hundred years long before India and Pakistan came into existence after the partition of the British India in 1947. It was discussed in detail in Chapters 2 and 4 that Kashmir had a well-defined territory, a con- solidated legal system, and the capacity to enter into international treaties.3 It became apparent that the people of Kashmir share a distinct common culture of Kashmiriyat, which is based on respect for the diversity of religions and languages. The Kashmiri culture is distinct from Indian and Pakistani cultures in all respects: folklore, dress, traditions, and cuisine. Its cultural heritage con- tains a vast array of distinctive artistic traditions.4 This was part of its historical development: its cultural heritage includes Hindu, Buddhist, and Islamic faiths and influences from Greece, China, Iran and other nations.5 Its homogeneity comes from the blend of these philosophies, with indigenous saints embody- ing this spirit of love with strong Sufi and Hindu influences.6 Buddhism was

1 Igor Grazin, ‘The International Recognition of National Rights: The Baltic States’ Case’ (1991) 66 Notre Dame Law Review 1385, 1385. 2 Sumantra Bose, The Challenge in Kashmir – Democracy, Self-Determination and a Just Peace (Sage Publications 1997) 32. 3 Such as the Treaty of Amritsar 1846. Charles Umpherston Aitchison, A Collection of Treaties, Engagements and Sanads Relating to India and Neighbouring Countries (Foreign Office Press 1909), vol 11, 165–66; Jyoti Bhusan Das Gupta, Jammu and Kashmir (Martinus Nijhoff, the Hague, 1968) 17, 23. 4 See generally, Kaumudi, Kashmir: Its Cultural Heritage (Gulshan Books 2005). 5 ibid 12–13. 6 ibid 26.

394 chapter 7 introduced to Kashmir by Asoka in 250 bc, and this coexisted for a period with the Shaivite Hinduism in the Valley.7 Later rulers, such as Zain-ul-Abidin,8 were also notable for their attempts to foster greater unity. Mystic saints and po- ets embody this rich history, giving Kashmir a distinctively beautiful literary culture. This work demonstrates that the people of Kashmir make their ‘nation’ a ‘state’. The people of Kashmir, through their mental continuity and common identity of Kashmiriyat, have kept their nation alive.9 As discussed, the issues relating to Kashmir’s statehood bear a resemblance with the Baltic States, which reverted10 to their pre-occupation sovereignty after independence. This determination among the people to retain their identity is key to their unity. Some occupied territories relinquish their entitlement to restore their historical title, like the Princely State of Hyderabad did by submitting to Indian occupation.11 In the context of the differing experiences and choic- es made in other occupied territories, it was submitted that Kashmir is not just the ‘undecided partition’ issue between India and Pakistan but rather a case of illegal occupation where people are waiting to exercise their right to self-determination to restore their historical title. Furthermore, since 1947 Kashmiris have consistently pushed for independence from both India and Pakistan.12 The expanded analysis of these substantive law principles, as well as the specific territorial situation of Kashmir, demonstrates that for illegal occupation cases these international laws operate in a harmonising fashion, allowing

7 ibid 20. Asoka’s philosophy of statehood is summarised by Romila Thapar as follows: ‘The policy of Dharma was a policy rather of social responsibility than merely of demanding that the entire population should favour Buddhism. It was the building up of an attitude of mind in which social behaviour, the behaviour of one person towards another, was considered of great importance. It was a plea for the recognition of the dignity of man, and for a humanistic spirit in the activities of society.’ See Romila Thapar, Asoka and the Decline of the Mauryas (oup 1997) 3. 8 Kaumudi, (n 4) 24. 9 For the definition of the reversion see, CN Alexandrowicz, ‘New and Original States: The Issue of Reversion to Sovereignty’ (1969) 45 International Affairs 474. 10 Rein Müllerson, International Law, Rights and Politics: Developments in Eastern Europe and the cis (Routledge 1994) 145. 11 Keeping in view the forceful annexation of Hyderabad by India, its claim to Kashmir on the basis of secularism appeared a farcical political philosophy. LP Sen, Slender was the Threat: Kashmir Confrontation 1947–48 (Orient Longman, Bombay, 1969) 10. 12 Prem Shankar Jha, ‘The Rise of Kashmir’s Second “Intifada”’ The Wire (New Delhi, 23 August 2016) accessed 2 December 2016.