Territorial disputes: Kashmir (Part 5) [Post 15]

Kashmir and the egalitarian shared sovereignty
Although the previous posts introduced mainly problems that have to do with Kashmir as a TERRITORIAL DISPUTE, it is possible to draw some partial conclusions in order to work out how to address them. 

  1. To agree about the historical chronology is relevant but not conclusive to solve conflict.
  2. To distinguish historical facts from religious account.
  3. To understand there are domestic, regional and international reasons for conflict.
  4. To assess territorial conflicts as a multi-level phenomena with different dimensions.
  5. To identify some common elements in theory all these territorial conflicts have.
  6. To evaluate by means of an abstract experiment how to solve the difference.

The current situation between India and Pakistan in relation to Kashmir seem to offer little room for a peaceful and permanent understanding about the difference (let alone a solution). However, this does not mean that we cannot think of a solution to this territorial dispute. That is, what would reasonable people do if they had a difference?
Theoretical frameworks provide the hermeneutical means to generalize behavior in a clear, cohesive, and concise manner. They also enable subsequent studies to sharpen the focus and identify more clearly variables that in principle may appear to be particular to a certain dispute.   With all this in mind, it is time to solve, at least in theory, Kashmir. The last four posts introduced very briefly the background situation of this TERRITORIAL DISPUTE.

Post 11: Territorial disputes: Kashmir (Part 1)

Post 12: Territorial disputes: Kashmir (Part 2)

Post 13: Territorial disputes: Kashmir (Part 3)

Post 14: Territorial disputes: Kashmir (Part 4)

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: This post is based on Jorge Emilio Núñez, “Territorial Disputes and State Sovereignty: International Law and Politics,” London and New York: Routledge, Taylor and Francis Group, 2020 (forthcoming)Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, “Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue,” London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: Kashmir, the egalitarian shared sovereignty and what Kashmiris are concerned about?

Friday 04th October 2019

Dr Jorge Emilio Núñez

Twitter: @London1701

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