November issue 2004

He was probably just testing the waters, but by speaking publicly about the possibility of Pakistan and India exercising “joint control” over either a part or the whole of a “demilitarised” Jammu and Kashmir, General Pervez Musharraf has begun the intellectually unsettling — and politically hazardous — process of moving away from the warm comfort of stated positions.

The specific suggestions he made hardly matter, nor indeed that they have been aired publicly. Ever since his breakfast meeting with Indian editors during the Agra Summit of July 2001, General Musharraf has argued that India and Pakistan can make headway on Kashmir only if they negate outcomes that either side find unacceptable. When they met in New York last month, Prime Minister Manmohan Singh asked the Pakistani President to specify what these unacceptable outcomes were. The General’s remarks last week did not answer Dr Singh’s question fully. But he has at least ruled out as unacceptable (to India), the idea of a plebiscite and (to Pakistan), the proposal that the Line of Control could be turned into an international border. In addition, he spoke of the undivided State as consisting of seven regions, making this the first time a Pakistani leader has agreed that the status of the federally-administered `Northern Areas’of Gilgit-Baltistan — through which the strategic Karakoram highway to China passes — is still an open question. His remarks were also the first time that a Pakistani head of state has spoken of “independence” as an option for a part or the whole of Kashmir.

If plebiscite and `LoC as border’ do not exhaust the full list of outcomes that might be unacceptable to either side, it is perhaps because New Delhi has yet to confront — let alone publicly air — its own views on this difficult question. As the country with more to lose in formal administrative terms from any final outcome different from the status quo, India is obviously reluctant to rank its second-best preferences. Nevertheless, now that General Musharraf has set the ball rolling, India needs to deliberate upon — and articulate — what kind of final status outcomes are completely unacceptable to it.

Prime Minister Manmohan Singh has already stressed on more than one occasion that there can be no secession of a region or alteration to India’s frontiers. There are, of course, other red lines from India’s point of view. It will not accept any outcome that is predicated on the communal partitioning of regions — such as the separation of Kargil from Ladakh or Poonch-Rajouri from the rest of Jammu — or an outcome where the rights of minorities are not guaranteed.

But if India vetoes any change in its external frontiers and Pakistan finds the `LoC as border’ proposal unacceptable, is there any room at all for a solution? Provided the two sides are willing to think about sovereignty and administration in a creative manner, there is no reason why modern politico-juridical institutions cannot be created which allow the entire population of undivided Jammu and Kashmir to affirm themselves as a people, as members of the state’s distinct regions and collectivities, and also as citizens of India, Pakistan and South Asia.

Throughout the world, there are numerous examples of territorial disputes or sovereignty claims involving homogeneous, mixed or divided populations being tackled through constitutional broadmindedness. Not all of these are relevant to Kashmir, or indeed complete or successful in themselves. Many approaches are still at the suggestion stage. But they do offer important lessons. Among the settled issues are the Aland Islands dispute between Finland and Sweden, and the South Tyrol dispute between Italy and Austria. Works in progress include the Anglo-Irish peace process over the status of Northern Ireland, the proposal for joint Anglo-Spanish control over Gibraltar, and the Noumea agreement for shared sovereignty in the French colony of New Caledonia. Finally, two exciting ideas still in the initial stages are the quest for a unified Sami sovereignty cutting across Norway, Sweden and Finland, and the Ibarretxe Proposal for peaceful settlement of the Basque question within Spain.

Before we examine these `models’, however, one must clarify that two examples commonly cited in the Kashmir context — Andorra and Trieste — have no relevance. The Principality of Andorra, sandwiched between France and Spain in the Pyrenees, is today an independent country with a well-developed international personality, an outcome that would fail Musharraf’s `Agra’ test as far as India and Pakistan are concerned. As for the Free Territory of Trieste, over which Italy and Yugoslavia shared sovereignty until 1954, the lessons, if any, are negative. The leading jurist and commentator A.G. Noorani has rightly argued that the `Trieste formula’ is nothing but a plan for communal partition, with the Treaty of Osimo giving the largely Italian port city of Trieste to Italy and the Croat-Slovene dominated Istrian region to the erstwhile Yugoslavia.

The Aland Islands, 40 km from the coast of Sweden and 25 km from Finland, are an autonomous, demilitarised Swedish-speaking province of Finland. The Islands were ceded by Sweden to Russia in 1809 and made part of the Grand Duchy of Finland. At the end of World War I, when the islands came under the control of an independent Finnish Government, the islanders and Sweden petitioned the League of Nations for the right to secede from Finland. The League decided in favour of Finnish sovereignty, but declared the Islands should be an autonomous, demilitarised territory with full protection to its residents’ linguistic and cultural rights. Today, the 26,000 islanders have their own flag, postage stamps and police force, but are not independent.

The South Tyrol dispute was more protracted, but offers more similarities with Kashmir because of the division of the Tyrolean region between Austria and Italy and a heterogeneous population of German (70 per cent), Italian (26 per cent) and Ladin (4 per cent) speakers. South Tyrol belonged to Austria — along with North and East Tyrol — until it was annexed by Italy at the end of World War I and `Italianised’ later by Mussolini. After WWII, the South Tyroleans collected signatures demanding reunification with Austria, but the Great Powers rejected this in 1946. Later that year, Italy and Austria signed the Paris Agreement in which Rome agreed to give South Tyrol autonomous legislative and executive power. However, the Italians did not implement the agreement sincerely, leading to terrorist bombings in 1957 and the decision by Austria to move the U.N. In 1969, measures to put genuine self-government in place were agreed but it took another 20 years to implement the fine print. It was only in 1992 that Austria informed the U.N. that the dispute was finally over.

Today, South Tyrol enjoys a high degree of autonomy and interacts with the sovereign Austrian regions of North and East Tyrol on a continuous basis. Local executive bodies are also structured to give representation to Italian, German and Ladin speakers.

Another creative example is the Sami Parliamentary Assembly, established in 2000, as a joint forum of the parliaments of the Sami indigenous people who reside in the northern regions of Norway, Sweden and Finland. The Sami have been demanding greater control over the land, water and natural resources of their ancient homeland. They elect representatives to their own regional parliaments but are now trying to develop a pan-Sami political institution to better protect their rights. The three Nordic countries have all been pulled up by the U.N. for their treatment of the Sami and many issues — such as Norway’s decision to allow expanded bombing ranges for NATO warplanes — affect the indigenous population cutting across sovereign state borders. The Sami example is a case of an attempt by a partitioned people to craft meaningful political institutions from below, often in the face of indifference from above. Similar to the Sami initiative is Basque leader Jose Luis Ibarretxe’s proposal for `shared sovereignty and free association’ of the Basque region of Spain. Conceived as an alternative to the “blind alley offered by ETA’s violence,” Ibarretxe’s proposal is for the Basque region to remain a part of the sovereign territory of Spain but enjoy the right to establish economic relations with the Basque regions of France, as well as representation in the European Union.

There is also the Anglo-Irish agreement, which established structures for consultation between Britain and Ireland in their effort to resolve Northern Ireland’s status and enshrines key principles like that of majority consent and non-violence. Pan-Ireland institutions dealing with transportation, tourism and fisheries were conceived of as vehicles for integration on the ground, even if thorny political issues take time settling. Finally, the 1999 Noumea agreement on New Caledonia — where the indigenous Kanaks are outnumbered by the descendants of European settlers and by other non-Melanesians — maintains French nationality over the colonial possession while establishing the idea of New Caledonia citizenship over a 20-year transition period till a referendum on final status. This example is unappealing in the South Asian context because Kashmir is not a `colonial possession.’ Nevertheless, the notion of shared sovereignty is an interesting one.

By themselves, none of these examples offers a complete set of principles for the resolution of the Kashmir dispute but many individual elements are attractive. South Tyrol suggests the notion of cross-border provincial ties between Ladakh and the Northern Areas, Jammu and West Punjab, and Uri, the Valley and Muzaffarabad — all anchored in cast-iron constitutional guarantees of autonomy and ethno-linguistic representation. The Aland Islands suggest the virtue of demilitarisation, and Ireland the principle of democratic consent. The Sami plan suggests the idea of a pan-J&K parliamentary assembly, linked to separate assemblies within Indian and Pakistani sovereignties, but with broad powers to examine matters of transportation, forests, water, perhaps even taxation.

Once the two governments start addressing the question of Jammu and Kashmir with sincerity and ingenuity, there is no reason why a common constitutional grammar and vocabulary cannot quickly be established upon which, as the talks progress, the formal edifice of a compromise cannot be erected. The building blocks have to be respected for democratic consent, not just of the people of the undivided princely state as a whole, but also of the distinct ethnic and regional collectives which exist. Perhaps one way to move forward is for the two governments to encourage, as an adjunct to the Composite Dialogue Process, a dialogue between the Kashmiris on both sides of the LoC — consisting of elected representatives from Indian-administered J&K, Pakistan-administered Azad Kashmir, members of the Northern Areas Consultative Council, as well as those political parties and entities on both sides of the LoC who have a view on what a final settlement should look like. The last category would include those the Indian government considers “secessionists” as well leaders of the autonomist and even secessionist movements on the Pakistani side such as JKLF and the ‘Balwaristan’ groups.

This intra-Kashmiri dialogue can be episodic and unstructured to begin with but New Delhi and Islamabad must provide every assistance in terms of visas and easy travel so that this contact and debate is as far-reaching as possible.