Time to solve Kashmir. The last four posts introduced very briefly the background situation of this TERRITORIAL DISPUTE.
The previous posts show that the sub-elements that constitute the population of a State are not, in principle, controversial per se. However, all these can in fact be controversial if one party, or more, may wish to impose language, religion or cultural domination—the case of Kashmir. So, it is not that there is no controversy, but that: a) this form of imposition is not necessary; b) a just approach must resist and exclude it.
Several solutions have been proposed in order to untangle the dispute in Kashmir. However, in all cases at least one of the parties is left outside the picture. To grant the sovereignty to Pakistan would be opposed by some minorities—Hindus and Buddhists. The opposite solution, sovereignty handed over to India would have the opposition of most of the Muslim population. Then, neither of these two solutions is welcomed by the Jammu and Kashmir or by Azad Kashmir inhabitants. But, even though independence is what the majority of the inhabitants of both Kashmirs want, it is threatened by both India and Pakistan because it would imply losing claimed territories, consequent rights over them and could result in a possible improvement of their peers’ situation.
Indeed, the inhabitants of Jammu and Kashmir and Azad Kashmir seem opposed to joint sovereignty. However, the model proposed here introduces features that make it a more attractive option also for them. That is because, if Kashmir, India and Pakistan decided to share their sovereignty over the territory under dispute, by applying the egalitarian shared sovereignty, none of the involved parties would interfere with the internal affairs of any of the other parties—first pre-requisite—, and they all would respect the basic non-political liberties of the three populations—Kashmir, India and Pakistan—by fulfilling the second pre-requisite. Thus, they would conduct their mutual relations according to the principles recognised by the law of peoples—the third pre-requisite.
The allocation of sovereignty will be given by: a) equal right to participate (egalitarian consensus principle); b) the nature and degree of participation depends on efficiency of accomplishing the particular objective/area/activity at issue (principle of efficiency); c) each party receives a benefit (in terms of rights and opportunities) that depends on what that party cooperates with (input-to-output ratio principle); and d) provided the party with greater ability and therefore greater initial participation rights has the obligation to bring the other two parties towards equilibrium (equilibrium proviso). I call this way of dealing with sovereignty conflicts or disputes the EGALITARIAN SHARED SOVEREIGNTY.
Many questions are to be expected. Amongst them: How is that translated into Kashmir’s reality and its population? The answer has two parts: a) the qualitative differences amongst the parties; b) the real concerns of the inhabitants of Kashmir.
The next posts on this blog series about TERRITORIAL DISPUTES will cover these questions.
NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.
Jorge Emilio Nunez
16th March 2018