- The Washington Times - Monday, January 3, 2005

The 58-year-old dispute over Kashmir will be resolved only if India is convinced the resolution will strengthen its national security and economic interests and bolster its international stature.

India will not and should not be expected to make altruistic compromises. All nations and their leaders are motivated by self-interest. A final resolution of Kashmir must carry the earmarks of “made in India.”

An Indian leader who endorsed a proposal fashioned by the Government of Pakistan, indigenous Kashmiris, the United Nations, or a third-party mediator would commit political suicide. India is the colossus of South Asia, and its amour propre demands it be seen as resolving Kashmir on its own terms. In any case, no nation or international organization has both the military strength and political will to override India with its alluring economy and utility in fighting global terrorism. India holds all the decisive cards.

Its incentives for developing a resolution are as compelling as the motivations for Israel’s planned unilateral exit of settlers from the Gaza Strip. Two wars between India and Pakistan in 1947 and 1965 were provoked by Kashmir. The disputed territory confounds amity between the South Asian neighbors, and has sparked a nuclear arms and missile race. Islamic terrorists attack India allegedly to retaliate against the oppression of Kashmir’s predominantly Muslim population. India squanders approximately 800,000 troops and paramilitary personnel plus billions in expenditures in defending the line of control that divides Kashmir between Pakistan and India and in pacifying a Kashmiri insurgency that erupted in 1989.

India’s praiseworthy democracy and rule of law are tarnished by its emergency decrees and human-rights violations in Kashmir. Further, its ambitions for a permanent seat on the U.N. Security Council will remain chimerical until Kashmir is resolved. The United Nations lists Kashmir as disputed territory; and twin Security Council resolutions adopted in 1948 and 1949 support a plebiscite for determining Kashmir’s sovereign status.

Finally, the territory’s chronic convulsions deter investment and trade in the region. The status quo in Kashmir thus handicaps India in numerous respects.

On the other hand, India’s de facto sovereignty confers national security and domestic political advantages. Kashmir is off-limits to foreign troops or bases. There is no danger of extremist Muslim elements like Taliban capturing power. India’s muscular projection of authority over the disputed land is politically popular by reinforcing its self-perception as the impresario of South Asia. The streets of New Delhi have never witnessed “Get out of Kashmir” demonstrations like America’s anti-Vietnam war rallies in Washington, D.C.

A Kashmir resolution is available to India that would preserve or augment its current national security benefits while exciting domestic political enthusiasm. India should offer the 13 million Kashmiris the opportunity in a U.N.-administered plebiscite to choose independence, but under a constitution that scrupulously safeguards India’s legitimate interests.

The constitution should prohibit any foreign military bases or alliances in Kashmir, except for Indian troops in a demarcated enclave. India is as entitled to a presence in Kashmir for military reasons as is the United States in Guantanamo Bay, Cuba, Great Britain in Cyprus, and Spain in Morocco.

India would be authorized to intervene in Kashmir to prevent any threat to its constitutional order, just as Greece, Turkey, and Great Britain were endowed with unilateral rights of intervention in Cyprus under a Treaty of Guarantee.

Moreover, Kashmir’s foreign policy decisions would require the concurrence of India, similar to a treaty arrangement between India and Bhutan. Kashmir would be denied a military, like Costa Rica, and be prohibited from threatening or using force in international affairs, as in the Japanese constitution’s Article 9.

Kashmir’s charter would mandate a secular democratic state like that in Turkey. Islamic theology or the Holy Koran would not trump constitutional rights and legal codes administered by secular officials. Discrimination based on religion, ethnicity, or gender would be prohibited. A strong system of federalism would be entrenched guaranteeing local autonomy for Buddhists, Sikhs and Hindus. Quotas for the latter religious groups would be established for the national judiciary, civil service, legislature, and police to protect their supreme interests against an 80 percent Muslim majority.

The constitution would require Kashmir to ratify all international counterterrorism conventions, and to negotiate an extradition treaty with India covering terrorism crimes. A customs union with India would continue. And Indians would be permitted to buy land or to make unrestricted investments in Kashmir.

India should condition its plebiscite offer on Pakistan’s ratification of a nonaggression pact and U.S. support for India’s permanent membership in the U.N. Security Council. Yielding sovereignty over Kashmir would place India on the same high footing as the United States when it yielded sovereignty (with treaty safeguards) over the Panama Canal zone.

Kashmiris would be foolish to reject the constitutional hedging India should contemplate. Since Kashmir was ripped asunder in 1947, periodic bilateral talks between India and Pakistan have proven uniformly unfruitful. Ditto for Security Council resolutions. Since 1989, a Kashmiri insurgency has caused the deaths of tens of thousands and has inflicted misery throughout the territory. And Kashmiris hold no cards, other than a self-defeating threat of terrorism.

In 1922, Ireland ratified a treaty with Great Britain to obtain an independent Irish Free State and end a bloody conflict despite provisions that encroached on customary sovereignty. Kashmiris should learn by that example, and refuse to sacrifice the good on the altar of the perfect.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group and is writing a comprehensive monograph on Kashmir.

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