Pakistan’s legal fraternity (and sorority) can have fun dismantling the verdict of the Supreme Court of India on Modi’s genocidal annexation of Indian Illegally Occupied Jammu and Kashmir (IIOJK) on August 5, 2019. I shall discuss the diplomatic and political aspects along with what options Pakistan has.
Apart from divine laws for “believing communities”, the supreme man-made law of the contemporary world is the body of international law i.e. conventions, treaties and standards including the UN Charter, UN Security Council Resolutions (under both chapters 6 and 7), UN General Assembly resolutions (even when non-binding), the Universal Declaration of Human Rights, international humanitarian and human rights laws, etc. All sovereign countries today implicitly or explicitly agree on the foregoing and conduct their diplomacy accordingly.
Accordingly, the December 11, 2023 verdict of the Supreme Court of India has no impact on the international legal status of Jammu and Kashmir which is a “disputed territory” and not part of any country, including India. Similarly, the resolution of the dispute can only be by the UN resolutions on the subject whatever the Supreme Court of India may hold to the contrary. Pakistan’s formal position on the issue of Jammu and Kashmir is, accordingly, unassailable.
One possible consequence of the verdict, however, is the breakup of the united Kashmiri opposition that formed in the aftermath of Modi’s unconstitutional annexation and breakup of the State. However, the immediate response of all Kashmiri opposition leaders in the Valley has been encouragingly unanimous in opposition to the verdict. But the mala fides of Modi and the Supreme Court of India are crystal clear in the different treatment and verdicts regarding the Valley and Ladakh which are calculated to progressively entice erstwhile political collaborators of the Valley away from their current APHC allies.
In the real world law is often more a norm than a determinant of political and diplomatic outcomes. Power (military, economic, political, locational, cultural, civilisational, scientific, technological, informational, image or soft power, etc.) wields far greater influence on the course of events.
So, what sort of power and influence does Pakistan wield today? It is a country of nearly 250 million people, a nuclear weapons country, strategically located, and potentially the most important Muslim country. With all these assets why is its foreign policy so unavailing on an issue in which it is more or less completely in the right vis-à-vis an adversary completely in the wrong? Does the answer lie in the far greater power of India? In the perversity of India and of its mighty ally, the US? In the indifference of an international community absorbed with a range of other concerns? To an extent, the answer to each of these questions is in the affirmative.
The real reason, however, has been the failure of Pakistan to develop as a modern state that prioritises the welfare of the majority of its people. For this, it cannot blame the world or its foreign policy. The foreign policy is merely an aspect of national policy and national policy is not determined by the Foreign Office. It is determined by the power structure and the social and political attitudes and policies of the governing elites of this power structure.
These attitudes and policies have been consistently perverse ever since the passing of the Father of the Nation; since the military takeover of the country in 1958; since the 1965 war; since the loss of East Pakistan in 1971 and the reduction of Pakistan to Greater Punjab; since the judicial murder of Zulfikar Ali Bhutto in 1979; since the unmitigated rule of civilian corruption and military malfeasance over the next 40 years; and since the removal, disqualification and incarceration of Imran Khan whom none of his opponents is willing to face in a free, fair and credibly monitored election. Realistically or unrealistically, the eyes and hopes of the nation are now focused on the Supreme Court of Pakistan to arrest this fatal process of state failure.
What can be done? Pakistan’s political, economic, educational, healthcare, administrative, and foreign policy experts have written, spoken and debated incessantly on what can and needs to be done. Their recommendations are in the main doable, practical and essential. They are potentially transformational. But they never get done beyond short-term tinkering with a status quo that is inimical to longer-term radical reform and restructuring, which are the conditions for the country to emerge from the failing state syndrome in which it lies trapped. Tragically, many of our experts continue to pile recommendations upon recommendations in the full knowledge that they will be essentially ignored by a power and political structure that is primarily concerned with preserving itself whatever the ultimate cost to the country. Many, too many, especially media and institutional intellectuals, appear quite comfortable with this situation which calls into question their commitment.
The younger generation of Pakistanis, across the board, are asking questions. These questions can only be answered by organised actions and movements which only they can provide. The elites of Pakistan are banking on the youth remaining passive despite their angry questions. They are confident they can permanently defeat the people of Pakistan even if it means the end of the country.