PL ioA tW r B aA lcN erD ow C icO z aN nF d ALI gC nT i e sR z kE a KSO u sL zU e wT sI kO a N I N K A Routledge Studies in South Asian Politics S H M I R LAW AND CONFLICT RESOLUTION IN KASHMIR Piotr Balcerowicz and Agnieszka Kuszewska Law and Conflict Resolution in Kashmir This book provides analysis of the legal status of territories of the former Princely State of Jammu and Kashmir, considering potential opportunities for Kashmir conflict resolution. Containing a detailed survey of relevant legislation and international documents, chapters throughout this book investigate the attempts and failures of Kashmir conflict resolution, holding up factors which could ena- ble more peaceful relations between India and Pakistan with inclusion of the inhabitants of the erstwhile Princely State of Jammu and Kashmir. The book goes further than outlining how India and Pakistan determine the legal status of their portions of Kashmir by demonstrating the complex- ity of legal arrangements and why this protracted conflict is so difficult to resolve. As the Kashmir conflict is not only about territory and irredentism, themes such as cultural and national identity, power procurement, territo- rial security, communal rivalry, religious radicalisation, economic factors and social issues are all taken into consideration. Law and Conflict Resolution in Kashmir will appeal to students and schol- ars of peace and conflict studies, international relations, international law studies and South Asian studies. Piotr Balcerowicz, Indologist and philosopher, is Professor at the University of Warsaw and Professor at the University of Munich (2019–2020). He spe- cialises in Asian and Western philosophical traditions, in particular, Indian philosophies and religions, South Asian history, international relations, political philosophy and human rights. His latest book is Early Asceticism in India (2016). Agnieszka Kuszewska, political scientist, is Associate Professor at the Jagiello- nian University. She specialises in international relations, conflict and security studies, geostrategic specificity and contemporary history of South Asia. She is the author of three books, including Understanding Pakistan. Radicaliza- tion, terrorism and other challenges (2015). Routledge Studies in South Asian Politics 22 Electoral Politics and Hindu Nationalism in India The Bharatiya Jana Sangh, 1951–1971 Koushiki Dasgupta 23 Government and NGOs in South Asia Local Collaboration in Bangladesh Mohammad Jahangir Hossain Mojumder and Pranab Kumar Panday 24 Parliaments in South Asia India, Pakistan and Bangladesh Nizam Ahmed 25 Pakistan’s Security and the India-US Strategic Partnership Nuclear Politics & National Security Syed Shahid Hussain Bukhari 26 Pakistan’s National Security Approach and Post-Cold War Security Uneasy Co-existence Arshad Ali 27 Political Theory and South Asian Counter-Narratives Maidul Islam 28 Islam and Democracy in the Maldives Zahir Azim 29 Kashmir in India and Pakistan Policies Piotr Balcerowicz and Agnieszka Kuszewska 30 Human Rights Violations in Kashmir Piotr Balcerowicz and Agnieszka Kuszewska 31 Law and Conflict Resolution in Kashmir Piotr Balcerowicz and Agnieszka Kuszewska 32 Pakistan’s Foreign Policy Contemporary Developments and Dynamics Ghulam Ali For more information about this series, please visit: www.routledge.com/ asianstudies/series/RSSAP 9781032048529_FM.indd 2 10/05/22 11:51 AM Law and Conflict Resolution in Kashmir Piotr Balcerowicz and Agnieszka Kuszewska First published 2022 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2022 Piotr Balcerowicz and Agnieszka Kuszewska The right of Piotr Balcerowicz and Agnieszka Kuszewska to be identified as authors of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. With the exception of Chapter 15, no part of this book may be reprinted or reproduced or utilized in any form or by an electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Chapter 15 of this book is available for free in PDF format as Open Access from the individual product page at www.routledge.com. It has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-1-032-04852-9 (hbk) ISBN: 978-1-032-05203-8 (pbk) ISBN: 978-1-003-19654-9 (ebk) DOI: 10.4324/9781003196549 Typeset in Times New Roman by KnowledgeWorks Global Ltd. The open access license of the publication was funded by the Priority Research Area Society of the Future under the programme “Excellence Initiative—Research University” at the Jagiellonian University in Krakow. Contents List of map and tables vii List of abbreviations viii Acknowledgments x Biographical notes on the authors xi 1 Introduction 1 PART I The legal status of Pakistani-administered Jammu and Kashmir 5 2 The right to self-determination 7 3 Pakistan vis-à-vis Azad Jammu and Kashmir 12 4 Pre-Constitution Azad Jammu and Kashmir vis-à-vis Pakistan 24 5 Azad Jammu and Kashmir vis-à-vis Pakistan: The Constitution 34 6 Pakistan vis-à-vis Gilgit-Baltistan 50 7 New legal tremors in Gilgit-Baltistan 68 8 Pakistan vis-à-vis Chitral 82 PART II The legal status of Indian-administered Jammu and Kashmir 85 9 India vis-à-vis Jammu and Kashmir 87 vi Contents 10 Jammu and Kashmir vis-à-vis India 98 11 The State of Jammu and Kashmir and international ramifications 111 12 The 2019 debacle 124 PART III The prospects for solving the conflict with protection of human rights in Kashmir 137 13 Introduction: Decoding the Indo-Pakistani conflict 139 14 Theorising resolution and reconciliation with reference to Kashmir dispute 143 14.1 Reconciliation, resolution and human rights 143 14.2 The manifestations of the intractable conflict 150 14.3 The multitrack framework and three-level approach 155 15 Kashmir conflict resolution: Selected proposals and attempts 161 15.1 The international community: supporting the resolution and providing arms 162 15.2 India, Pakistan, Kashmir: selected noteworthy resolution initiatives 170 16 Current security and economic dynamics 185 16.1 Regional security-related factors 186 16.2 Economic and trade-related factors 190 17 Yearning for a resolution: ‘new India’ and ‘new Pakistan’? 199 18 Epilogue 218 References 223 Index 246 Illustrations Map 6.1 Gilgit, Baltistan, Ladakh and other regions, 1909. Fragment, source: IGI (1909: 141). 57 Tables 5.1 The Constitution of the Azad Jammu and Kashmir Council 38 15.1 Democracy Index dynamics in India and Pakistan 2006–2020 167 16.1 India-Pakistan export/import (in US$ million) and share in India’s global trade 191 16.2 Export. Top three commodities exported from India to Pakistan (2017–2018, 2018–2019) and their values (in US$ million) 192 16.3 Import. Top three commodities imported from Pakistan to India (2017–2018, 2018–2019) and their values (in US $million) 193 17.1 India and Pakistan vis-à-vis selected international human rights instruments 203 17.2 The impact of cross LoC interactions on people living across the border (in %) 206 Abbreviations AFSPA Armed Forces Special Powers Act AJK Azad Jammu and Kashmir AJKMC All Jammu and Kashmir Muslim Conference APNA All Parties National Alliance BJP Bharatiya Janata Party (Bhāratīya Janatā Pārṭī) CFL Cease-Fire Line CFV’s ceasefire violations COAS Chief of the Army Staff CPEC China-Pakistan Economic Corridor FATA Federally Administered Tribal Areas GB Gilgit-Baltistan (after 2009), before: NA; also the agencies of Gilgit and Baltistan HR human rights IaJK Indian-administered Jammu and Kashmir J&K Jammu and Kashmir JeI Jamaat-e-Islami JeM Jaish-e-Mohammad JKLF Jammu and Kashmir Liberation Front JKPSA Jammu and Kashmir Public Safety Act JuD Jamaat-ud-Dawa KOCBMs Kashmir-oriented confidence-building measures LoC Line of Control MKA Ministry of Kashmir Affairs (later MKANA) MKANA Ministry of Kashmir Affairs & Northern Areas (after 2009 MoKGB) MoKGB Ministry of Kashmir Affairs and Gilgit Baltistan (till 2009 MKANA) NA Northern Areas (between 1972 and 2009), after 2009: GB PaJK Pakistani-administered Jammu and Kashmir PATA Provincially Administered Tribal Areas PML(N) Pakistani Muslim League (Nawaz) PPP Pakistan Peoples Party PSJ&K (former) Princely State of Jammu and Kashmir Abbreviations ix PSJ&K the (former) Princely State of Jammu and Kashmir PTI Pakistan Tehreek-e-Insaf (Pākistān Tahrīk-e-Insāf) RSS Rashtriya Swayamsevak Sangh (Rāṣṭrīya Svayaṁsevak Saṅgh) UNCIP United Nations Commission for India and Pakistan UNSC United Nations Security Council UTJ&K union territory of Jammu and Kashmir UTL union territory of Ladakh