KASHMIR - A WAY FORWARD
Issues and Precedents
Memorandum prepared by Hurst Hannum(1)
This Memorandum addresses several issues raised in the proposal, "Kashmir - A Way Forward" (hereinafter referred to simply as "the Proposal"). In brief, my conclusion is that there is no international legal impediment to implementing the Proposal as it now stands, although a number of difficult political issues obviously will have to be resolved. The primary variable is whether the parts of Kashmir now under the respective control of India and Pakistan will become one entity, related to the two states, or whether a situation with separate administrations in "Pakistani" Kashmir and "Indian" Kashmir will continue.(2)
The Memorandum is divided into three sections. The first section considers several general issues that will be relevant whatever the configuration of the new Kashmiri entity(ies), such as legislative and executive competence, sovereignty, citizenship, freedom of movement, policing and defense, and economic and financial issues (including currency). The second section addresses the options of either a) a united Kashmiri entity subject to whatever powers may be retained jointly or separately by India and Pakistan or b) two Kashmiri entities, each remaining within the boundaries of India or Pakistan, respectively. The final section suggests ways in which an agreement on Kashmir might be given legal standing, focussing on the possibility of a bilateral India-Pakistan treaty.
So long as Kashmir remains associated with India and/or Pakistan, the basic issue is how power will be divided between a local/regional/autonomous/associated Kashmir and the larger states within which it is located. While agreement on some of the following issues will vary depending on whether there are one or two Kashmiri entities, in most respects the fundamental issue of power-sharing will remain. The following discussion is therefore equally applicable to an entity either wholly within India or Pakistan or one which encompasses territory now under the control of both countries.
The Proposal refers to a Kashmir that will be "a sovereign entity... but one without an international personality." While today a "sovereign state" by definition has an international personality and is capable of engaging in foreign relations, sovereignty does not necessarily imply such a complete degree of independence. In most federations, for example, the constituent parts of the federation are sovereign within the scope of their constitutionally retained powers. Even sovereign states are limited in the actions they may take by norms of international law, so "sovereignty" is not absolute and need not be equated with unlimited power within a given territory.
In any event, the degree of authority possessed by Kashmir would be determined by agreement between Kashmir and India and/or Pakistan. To be sovereign in a meaningful sense, Kashmir would need to have the ability to act independently in undertaking a wide range of internal governmental functions, including basic legislative, executive, and (probably) judicial activities. Functions reserved to the sovereign authority of Kashmir would not be subject to limitation by any other government, although there could be areas in which joint sovereignty or joint authority was exercised.
Meaningful sovereignty also implies that the population of Kashmir (however the territory is defined) has the right to determine the basic institutional structure of their government without outside interference. This right is equivalent to a Kashmiri right of internal self-determination, but it does not necessarily suggest the right to unilateral secession or independence.
Determination of citizenship is one of the normal powers of a sovereign independent state, and even regions with a high degree of autonomy maintain a common citizenship with the state within which they are located. Indeed, it may not be coincidental that UN membership has not been granted (or sought) for the associated states of the Cook Islands and Niue, whose residents are New Zealand citizens. In contrast, the associated states of Micronesia, the Marshall Islands, and Palau, which are UN members, have their own citizenship, distinct from that of the state with which they are associated, the United States.(3)
Of course, even separate citizenship need not mean entirely separate treatment for various purposes. In the United Kingdom. for example, Irish and Commonwealth citizens resident in the UK have long been entitled to vote in British elections and to stand for office. As the European Union has expanded and deepened, foreign citizenship is no longer a barrier to the free movement of people, goods, and services among EU members. Citizens of the Marshall Islands, Micronesia, and Palau have the right to reside and work in the United States and to serve in the U.S. armed forces (although they cannot be subject to mandatory conscription unless they become "habitual" residents of the U.S.).
The reverse is also true: common citizenship does not necessarily imply precisely equal rights for all purposes. There are many different arrangements that distinguish among co-citizens who may or may not possess the same rights within an autonomous territory. The most common and important of these rights concern residence or domicile, property ownership, and participation in government. Absent special provisions dealing with these or similar issues, general human rights norms of non-discrimination require that all citizens (and, in most cases, all legal residents) be treated equally.
The "right of domicile" enjoyed by the land Islands may be the most common way of limiting residency and protecting against the possibility that an autonomous region may be overwhelmed by those of a different language or ethnicity. Although the Swedish-speaking Aland Islands may refuse to grant the right of domicile to any person if there are "persuasive reasons" for such refusal, in practice all Finnish citizens who meet the requirements for domicile (five years'actual residency in the Aland Islands and proficiency in the Swedish language) are granted it.(4)
A similar situation prevails in Hong Kong, which shares a common citizenship with other parts of China. Hong Kong issues its own passports to Chinese citizens who hold permanent identity cards and have the right of residence within Hong Kong, and only certain categories of Chinese citizens have the right of abode within Hong Kong.(5)
Restrictions on the ownership of real property also may be imposed on citizens of the same state who do not have the right of permanent domicile in the autonomous region. Again, this is the situation in Aland.(6) Restrictions on land alienation are commonly imposed in situations where indigenous or tribal peoples own land communally, and the government wishes to protect such traditional forms of ownership from encroachment by other citizens of the state. For example, the Indian constitution allows the restriction or regulation of land transfers within "Scheduled Areas" inhabited by tribal peoples;(7) communal lands within the autonomous regions of the Atlantic Coast of Nicaragua are inalienable;(8) and customary land in Niue may not be taken or alienated by the legislature without a report from a special Commission of Inquiry.(9) Malaysia reserves ownership of certain lands to persons of Malay ethnicity.(10)
Finally, shared citizenship between Kashmir, on the one hand, and either India or Pakistan, on the other hand, would be both possible and unexceptional. Kashmiri citizens, whether defined by permanent residency or otherwise, would have the right to vote, own property, and live in Kashmir; they also would be obliged to pay taxes and would be subject to whatever other specific obligations might be placed upon them by the government of Kashmir. Kashmiri citizens might be given the option of choosing either Indian or Pakistani citizenship (or both), as is the case for persons born in Northern Ireland, for example, who have the right to both British and Irish nationality.
The only problematic citizenship arrangement would be if an individual wished to claim only Kashmiri citizenship, to the exclusion of Indian or Pakistani citizenship. A grant of citizenship in its international sense is normally within the power only of sovereign states, which accept a concomitant duty to protect their citizens abroad. Such diplomatic protection by Kashmir alone would be incompatible with the Proposal's assumption that Kashmir would not possess "international personality," and it would have the effect of rendering a person stateless if Kashmiri citizenship were unrecognized by other states.
Special Kashmiri passports could be issued by the Kashmiri authorities under powers delegated by India and/or Pakistan. Alternatively, regular Indian and Pakistani passports could include some form of special mention of Kashmiri citizenship or identity. For internal purposes, Kashmiri identity cards could be issued by the Kashmiri authorities, and holding Kashmiri identity could be a prerequisite for exercising any rights enjoyed only by Kashmiris, e.g., residence or unrestricted cross-border travel.
Assuming that there is agreement that Kashmir should exercise a wide range of governmental powers, free from interference by any other government, this could be accomplished in two different ways. First, the powers specifically delegated to Kashmir could be set forth in detail in the treaty or other instrument that implements any agreement on Kashmir's status. Alternatively, Kashmir could simply assume all governmental powers not specifically reserved to either India or Pakistan.
The latter alternative would be more consistent with a broad grant of authority to Kashmir and recognition of its sovereignty, however that sovereignty might be circumscribed. Most federal systems, such as the United States, are based on the principle that the components of the federation retain all powers not specifically granted to the federal government, as provided in the Tenth Amendment to the U.S. Constitution. Retention of reserved powers also is the practice in "associated states" and appears to be the basis of the Kingdom of the Netherlands (which includes the Netherlands Antilles). The extensive constitutional changes adopted in 1993 in Belgium provide that the three linguistic communities retain residual powers not specifically granted to the federal government, although Belgium is not formally a federal state.(11)
The first approach (an exhaustive listing of powers reserved or delegated to the autonomous, regional, or provincial government) is utilized in Greenland, Hong Kong, parts of Mindanao (Philippines), South Tyrol, Sri Lanka, and the historical entities of Eritrea (during its period of autonomy in 1952-62), the Memel Territory (1924-39), and the Sudan (under the 1973 constitution). This approach is appropriate where specific issues (e.g., culture, language, natural resources) are of particular importance to the territory, although it is probably less successful where the intent is to provide a broad grant of self-government.
A mixed approach, in which both autonomous and central government powers are listed in detail, may be found in the Aland Islands, Spain (Catalonia and the Basque Country), India, and Malaysia. The listing of state (regional), federal (central), and mixed competencies in theory allows for the fine-tuning of all conceivable governmental powers to suit particular situations, although the retention of residual authority often determines which level of government dominates.
Substantively, a Kashmiri legislature should enjoy broad power in areas of direct concern to its residents, such as provision of health and social services, taxation, education, language policy, transportation, regional economic policy, adoption of penal and civil laws, police, exploitation of natural resources, planning, and local government. The Proposal states simply that the legislative competence of Kashmir would extend to all matters other than defense and foreign affairs, which are powers normally reserved to central governments.
Of course, reservation of powers to Kashmir does not mean that cooperation with India and/or Pakistan would not be expected or desirable. In matters such as telecommunications, transportation, environmental protection, the apprehension of common criminals, and tourism, for example, government-to-government arrangements might be mutually beneficial. In addition, particularly during an initial transitional period, Kashmir might find it useful simply to adopt or continue in force a number of existing Indian or Pakistani laws, although implementation and enforcement of such laws would be within the competence of Kashmir.
Whatever the substantive scope of Kashmiri competence, members of the Kashmiri legislature should be elected freely and independently by duly qualified Kashmiri electors, without any limitation imposed by India or Pakistan. Likewise, the electoral system within Kashmir should be a wholly internal matter, to be determined by Kashmir.
An independent Kashmiri executive should be responsible for the administration, implementation, and enforcement of all laws applicable within Kashmir. If there are specific areas within which India or Pakistan would continue to enjoy authority (e.g., narcotics or other transnational crimes), enforcement should be with the cooperation and consent of Kashmiri authorities.
Again, such independent executive powers would not detract from the cooperation and coordination that would undoubtedly be necessary so long as Kashmir remains a less-than independent entity within or associated with India and/or Pakistan. Liaison offices of the Kashmiri governments might be established in New Delhi and Islamabad, and central government officials would no doubt maintain a presence in Kashmir.
The Proposal makes no reference to judicial authority within Kashmir, and there is no consistent pattern among autonomous regions with respect to whether or not they possess their own judicial systems. However, it does seem more likely that there will be an independent judiciary in situations where full political, as opposed to primarily cultural, autonomy is desired. For example, there is no independent judiciary in the Faroe Islands, Greenland, land Islands, or the autonomous regions of Spain. South Tyrol also lacks a separate judiciary, although a special autonomous section of the regional court exists to consider alleged violations of the principle of equality of the two language groups within South Tyrol.(12)
Even when self-governing regions do have their own judicial system, appeals from regional or autonomous courts generally lie to the supreme judicial authority of the state. This is the case in, e.g., the Netherlands Antilles, Niue, and the Cook Islands. Even fully independent states may provide for an ultimate appeal to a foreign court, as is the case in many of the former British colonies in the Caribbean, which allow an ultimate right of appeal to the British Privy Council in appropriate cases. A greater degree of judicial independence is found where there is either mistrust between the central and regional governments or where the legal system in the autonomous region is substantially different from that in the rest of the country. For example, the power of final adjudication of cases in Hong Kong rests with the Hong Kong Court of Final Appeal, not with courts responsible to the central Chinese government.(13) In federal states, parallel judicial systems are common, in which the respective component entities have full and final judicial authority over laws they have adopted within their areas of competence, while a separate federal judiciary has jurisdiction over federal laws and regulations. Basic constitutional or human rights are often judicially guaranteed by both the federal/central and regional governments.
In such a context, human rights guaranteed by the central government normally prevail against actions by an autonomous government that would violate those rights. At the same time, autonomous or state governments may expand the rights they guarantee to their own citizens.
Of course, if India and Pakistan were to retain only minimal powers in the areas of defense and foreign relations, their judicial presence in Kashmir would be minimal.
The key area in which disputes are likely to arise is in determining whether a particular government action lies within that government's jurisdiction, as opposed to merely interpreting acts that fall clearly within the power of either Kashmir or India/Pakistan. This issue is closely related to the question of how a settlement in Kashmir might best be guaranteed, and it is discussed below in Section III.
Given the unique situation of relatively prosperous, capitalist Hong Kong as part of the much less developed mainland of China, it is not surprising that Hong Kong enjoys essentially complete financial and monetary independence. Hong Kong levies its own taxes, is exempt from taxation by the central government, retains full control over monetary matters, and is a separate customs territory from mainland China.(14)
The other extreme may be the lesser developed, associated states of Niue and the Cook Islands, which remain largely dependent on New Zealand for the economic assistance necessary to run their governments and provide social services, even though they enjoy full self-government. For example, although Niue has independent powers of taxation and makes no financial contribution to New Zealand, New Zealand accepts a "continuing responsibility... to provide necessary economic and administrative assistance" to Niue; New Zealand officials also participate in auditing Niue government accounts and in the Niue Public Service Commission.(15)
In between these extremes lies an almost infinite number of specific formulas for revenue- and cost-sharing between autonomous and central governments. For example, revenues are shared between St. Kitts and Nevis on the basis of the respective populations on the two islands, less the cost of shared or common services provided by the state government to each island.(16) South Tyrol has the right to levy its own taxes, and it also receives various percentages of taxes collected from South Tyrol by the Italian government.(17) In the land Islands, a special "equalisation" procedure determines the percentage of annual Finnish government revenue that is allocated to land each year.(18) In Spain, Catalonia and the Basque Country collect most taxes and divide them between the regions and central government according to formulae that are negotiated annually with the central government.(19)
The Proposal's reference to "financial arrangements for the Kashmir entity" masks a plethora of very complex questions, many of which are beyond the scope of this Memorandum. Some are closely entwined with the scope of Kashmir's legislative powers, for example, whether Kashmir should establish and fund its own health and social services or whether such services should be financed (and even determined) by India or Pakistan. The availability of support from international agencies in this context is particularly important, although it is unlikely that outside financial support would continue indefinitely.
Matters related to imports, exports, and customs normally fall within the foreign affairs powers of the central government, but nothing would prohibit a different arrangement for Kashmir. Reservation of all or a portion of the customs revenues that are collected within Kashmir to the Kashmiri authorities might provide an independent source of income for the entity, although the sums collected might not be substantial. Creation of a duty-free zone encompassing both parts of Kashmir might encourage cross-border economic activity, but additional problems might arise in controlling the flow of goods out of Kashmir and into India or Pakistan, respectively. It would be unusual for Kashmir to have its own currency, separate from that of either India or Pakistan. The only example of such a currency independently issued by a nonindependent entity is that of Hong Kong, whose unique financial situation is not similar to that of Kashmir. Linking a Kashmiri currency directly to either Indian or Pakistan currency would seem to undermine any argument for a separate Kashmiri currency, while a free-standing currency might well have difficulty gaining international acceptance. From a symbolic point of view, however, a distinctive Kashmiri currency tied to the national currency might be issued, in the same way that commercial banks in Scotland are authorized to print their own banknotes, so long as the notes are matched one-for-one by the banks' holdings of notes printed by the Bank of England. The Scottish notes are technically not legal tender, but they are universally accepted within Scotland and widely accepted in the rest of the United Kingdom. A similar arrangement exists in the British Channel Island dependencies of Jersey and Guernsey, which issue their own notes tied to the British pound.
Although the Proposal reserves foreign affairs to India and Pakistan respectively, there are many precedents for some participation by Kashmir in various aspects of "foreign affairs".
Most sub-state entities engage in commercial and promotional activities, even if no specific legal or constitutional provision is made for such activities under domestic law. For example, Quebec has a number of "foreign affairs" offices in various countries, and most states of the United States have trade offices that actively pursue commercial and economic relations with foreign countries and companies.
On the other hand, few sub-state governments have the competence to enter into internationally binding treaties, at least without the consent of the central government. One exception is Belgium, where the linguistic community councils are given explicit authority to enter into treaties in the areas of culture, education, and personal status.(20) Another exception is Hong Kong, which, under the name "Hong Kong, China," may conclude agreements with foreign states and organizations in the areas of economic relations, trade, finances, shipping, communications, tourism, culture, and sports. It also may establish economic and trade missions in foreign countries, reporting such missions to the central government but not requiring the central government's approval. The establishment of foreign consular offices in Hong Kong, on the other hand, does require the approval of the central Chinese authorities.(21)
At a minimum, consideration might be given to specifying that treaties entered into by India or Pakistan would not apply to Kashmir without the latter's specific consent. India and Pakistan also should undertake to enter into diplomatic negotiations and, where possible, conclude treaties pursuant to a request to do so from the Kashmiri government.
There are several precedents that would support Kashmiri participation in Indian or Pakistani diplomatic delegations. The Faroe Islands and Greenland enjoy such de facto participation in the formulation of Danish foreign policy that affects them, as does Hong Kong with respect to China. Regional governments in Germany participate in German delegations to UNESCO, and U.S. delegations to international conferences or bodies dealing with economic or trade matters may include representatives of states or even cities.
The ability of Greenland and the land Islands to opt out of the European Union is perhaps the clearest example of a government's responsiveness to the needs of a particular region in the area of foreign affairs, and special provisions were negotiated by Finland and Italy when they joined the EU, to address the needs of the land Islands and South Tyrol, respectively.
With respect to formal membership in international organizations, as opposed to participation in national delegations, general-purpose or political international organizations usually restrict formal membership to "states," a term that has been consistently interpreted to refer to sovereign independent entities. For example, only states may join the United Nations, Organization of African Unity, Organization of American States, Council of Europe, Organization for Security and Cooperation in Europe, European Union, Association of SouthEast Asian Nations (ASEAN), South Asian Association for Regional Cooperation (SAARC), or World Trade Organization. Neither small size nor de facto dependence is an impediment to membership, and "micro-states" such as Palau, Nauru, Saint Kitts and Nevis, Kiribati, San Marino, Monaco, and Andorra have been admitted to UN membership without question. Of these states, Nauru, with only 10,500 inhabitants, is the least populous, while Monaco, with an area of 0.75 square miles (1.95 square km.) is the smallest. Among associated states (discussed in Part II, below), the Marshall Islands and Micronesia (which have their own citizenship) are members of the United Nations; Niue and the Cook Islands (whose inhabitants are citizens of New Zealand) are not.
Of course, both non-member-states and non-states may be permitted to participate in various capacities in such organizations (such as the official observer status granted by the United Nations to, e.g., the Palestine Liberation Organization and the Holy See(22)), but neither regular nor associate membership is usually possible. One exception is the rather informal South Pacific Forum, which includes heads of government of both independent and self-governing states in the region.
On the other hand, most of the specialized agencies associated with the United Nations and many other international organizations created for limited purposes do admit non-states as either regular or associate members. The specific requirements vary from organization to organization, but, in all cases, membership may be acquired only with the consent of the state which exercises control over the foreign relations of the self-governing territory in question. The following international organizations, for example, have non-state or associated state members:
International Civil Aviation Organization (Cook Islands is a member)(23)
International Telecommunications Union (British, French, and U.S. territories are members)(24)
Food and Agriculture Organization (Cook Islands and the European Union are members; Puerto Rico is an associate member)(25)
UN Educational, Scientific and Cultural Organization (Cook Islands and Niue are members; Aruba, British Virgin Islands, Macau, and Netherlands Antilles are associate members)(26)
Universal Postal Union (British Overseas Territories, Netherlands Antilles, and Aruba are members)(27)
World Health Organization (Cook Islands and Niue are members; Puerto Rico and Tokelau are associate members)(28)
World Meteorological Organization (members include British Caribbean territories, Cook Islands, French Polynesia, Hong Kong, Macau, Netherlands Antilles, Aruba, and New Caledonia)(29)
International Maritime Organization (Hong Kong and Macao were associate members)(30)
Membership in regional economic organizations varies considerably. Only states are members of, e.g., the Inter-American Development Bank, while non-state territories may become members of the Caribbean Community and Common Market (CARICOM), the Asian Development Bank, and the Asia-Pacific Economic Co-operation (APEC).
Given the history of hostility between India and Pakistan, security arrangements will be among the most important issues to be resolved. The Proposal calls for the demilitarization of Kashmir, but additional guarantees beyond the simple withdrawal of troops may be necessary. Any withdrawal of forces should be predicated on successful completion of a number of confidence-building measures, and some international or binational presence may be useful in overseeing any process of demilitarization.
The legitimate rights of India and Pakistan to provide for the defense of their territory should not be confused with the right and obligation of the Kashmiri government to provide for internal security and police forces within Kashmir. Depending on the nature of border and customs posts retained, a small number of national police or military personnel might be stationed in Kashmir in order to maintain such posts.
The Proposal envisions an open border and the free movement of people, goods, and services between Kashmir and India and Pakistan, respectively. Whether a single Kashmiri entity is created encompassing territory now controlled by both India and Pakistan or whether Kashmir remains divided between India and Pakistan, an open border will raise serious issues of control and security. So long as an internationally recognized border remains, the security of that border would normally be considered to fall within the jurisdiction of the internationally recognized states of India and Pakistan, rather than the Kashmiri entity.
However, an "open border" does not necessarily mean a border without controls. In particular, if a separate Kashmiri identity is recognized formally (by means of a passport or identity card), national border guards could facilitate and ensure free passage of Kashmiris without abandoning their control over the movement of other persons. Indeed, the 1992 UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious or Linguistic Minorities provides that members of minorities "have the right to establish and maintain, without any discrimination, free and peaceful contacts with other members of their group and with persons belonging to other minorities, as well as contacts across frontiers with citizens of other States to whom they are related by national or ethnic, religious or linguistic ties." At a minimum, provision for such contacts should be included in whatever arrangement is agreed to for Kashmir.
It may not be necessary to consider ways of limiting migration into Kashmir, as a means of preserving Kashmiri cultural or linguistic cohesion. Should this be desirable, however, one should recall the internationally recognized human right to freedom of movement within one's own state. This right is set forth in article 13 of the Universal Declaration of Human Rights, and article 12 of the International Government on Civil and Political Rights.
Article 13 of the Universal Declaration of Human Rights and article 12 of the International Government of Civil and Political Rights provide that every person has the right "to return to his country," and the Proposal would ensure such a right to all persons displaced from Kashmir. Given the extent of such displacements and the long time span over which they have occurred, provision might be made for a joint commission to determine issues of property rights that might arise if long-time absentees seek to return to their original homes. Such a commission should bear in mind that those who have resided peacefully in Kashmir for a number of years also have rights and interests that should be balanced against those of the returnees.
A single Kashmiri entity Although the Proposal speaks of a "sovereign" Kashmiri entity, it does not necessarily envisage full independence as a consequence of any settlement. Thus, if a single entity is created out of the territories now controlled respectively by India and Pakistan, authority over at least defense and foreign relations would be exercised by both countries. Under this scenario, territorial control could be exercised within Kashmir by India and Pakistan in two different ways: 1) separately, although for all other purposes the entity would be integrated and possess the same self-governing powers throughout Kashmiri territory, or 2) jointly, through a form of condominium or other shared rule.
Separate administration, defined territorially by either the present Line of Control or a mutually agreed upon adjusted border, would have the advantage of enabling the two countries to retain authority over defense matters in a region that has already been the site of numerous armed clashes. However, if the demilitarization called for in the Proposal proceeds smoothly, separate defense authority might gradually come to mean little more than maintenance of a few observation posts or other means of ensuring verifiable security for all parties.
Separate conduct of foreign affairs by India and Pakistan on behalf of a unified Kashmir also would be problematic, although it should be possible to coordinate policies (such as trade or tourism) that would apply to the whole territory.
Finally, it would probably be difficult for a single Kashmiri government, at least initially, to deal separately with India and Pakistan, even within the limited spheres of competence each would retain. Separate responsibility could undermine the unity of the new Kashmiri entity, a unity which might already be fragile in light of the different linguistic and historic realities within greater Kashmir.
The alternative of joint administration by India and Pakistan appears a more attractive choice in theory, although the adversarial nature of relations between the two countries since their independence is a major stumbling block. Nonetheless, since much of the conflict has been over the status of Kashmir, an agreement seriously negotiated and accepted without reservation by both India and Pakistan would itself remove a major source of tension.
The only twentieth-century examples of territorial powers formally shared by tow states are the unusual cases of Andorra and the New Hebrides.(31)
'Andorra is a small mountainous country of only 65,000 inhabitants, situated between France and Spain. It is a co-principality with two heads of state; one is the President of France, the other the other the Spanish Bishop of the Seo de Urgel. The powers of the co-princes are personal, and, technically, Andorra is not dependent on either the French or Spanish governments.
The French and Spanish co-princes (initially, the French prince was the Bishop of Foix, whose authority eventually devolved to the President of France) have been, in effect, joint guarantors of Andorra's independence since the thirteenth century; each also ensured that neither France nor Spain would attempt to absorb or control the territory. Although an annual tribute (parage) paid by Andorra to the co-princes is essentially ceremonial, revision of the basic constitutional order of Andorra has required the assent of both heads of state. In the 1930s, French and Spanish troops intervened briefly during a period of civil disorder in Andorra.
Andorra has long been self-governing, although the present form of parliamentary democracy dates only from reforms decreed by the co-princes (upon the request of Andorra) in 1981 and confirmed in Andorra's first written constitution, which was adopted in 1993. The constitution provides that the co-princes "are the symbol and guarantee of the permanence and continuity of Andorra as well as of its independence and the maintenance of the spirit of parity in the traditional balanced relation with the neighbouring States." The co-princes, through their representatives in Andorra, perform the normal duties of a head of state in a parliamentary democracy.
Andorra became a member of the United Nations in 1993 and is now a member of a number of other international organizations. Although Andorra is fully independent, its defense remains a joint responsibility of France and Spain.
Vanuatu (formerly the New Hebrides) was a condominium under joint British-French governance from 1906 until 1978; the islands that comprise Vanuatu became independent in 1980. During the condominium era, three separate administrations had jurisdiction over, respectively, British subjects, French subjects, and the indigenous population. Responsibility for the latter was shared by Britain and France, and neither could exercise separate jurisdiction over New Hebrideans or consider them to be their nationals. Special joint courts and other institutions were established, and New Hebrideans were exempt from taxation and military conscription by either state.
Because of their unique character, neither Andorra nor the New Hebrides offers an obvious model for a means of exercising joint Indian-Pakistani authority over a unified Kashmir. However, the possibility of such shared control should not be dismissed without consideration, particularly during any transitional phase that might be envisaged in an eventual agreement.
The Kashmiri entity envisaged in the Proposal may encompass territory now controlled by either India or Pakistan or both territories separately. In any case, the relations between such an entity or entities and India or Pakistan, respectively, will be subject to the considerations discussed in Part I of this Memorandum.
Each Kashmiri entity may have a different set of relationships with its "parent" state, or the relationships may be based on parallel principles. The latter option would make eventual legal or functional unification of both parts of Kashmir easier, should that be the wish of the population and agreeable to India and Pakistan, but it should not be considered to be essential to any agreement.
Free association In addition to the specific considerations discussed above, the status of "free association" of Kashmir with one or both countries might be considered. The concept of "free association" was initially set forth in the 1960 UN General Assembly resolution on Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for Under Article 73e of the Charter(32) and reaffirmed in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations.33 In effect, the former resolution defined a "non-self-governing territory" and declared that full self-government can be reached by 1) emergence as a sovereign independent state, 2) full integration with an existing independent state, or 3) free association with an independent state or states.
There are two key elements of free association. The first is the right "to determine its internal constitution without outside interference," although this does not preclude any prior consultations that might be required by the terms of the free association agreement itself.(34) The second requirement is that the associated territory have the unilateral right to modify its status, i.e., to opt for independence.(35)
Although the term "free association" is not used in the constituent documents, the classic examples of that arrangement for many years were the respective relationships of the Cook Islands and Niue with New Zealand. Both islands are self-governing in all but defense and external affairs, but their residents retain New Zealand citizenship. More recently, the governments of the Marshall Islands, the Federated States of Micronesia, and Palau entered into free association relationships with the United States upon termination of the U.S. trusteeship over those territories.(36) Each is fully self-governing and has its own citizenship, but the "Compacts of Free Association" also assign a number of rights and responsibilities to the United States in the areas of foreign affairs, defense, telecommunications, immigration, environmental protection, financial assistance, currency, and other matters.
Each associated state has full authority over the conduct of its foreign affairs, including treaty relations, subject only to any restriction specifically set out in the relevant compact. The primary area reserved to the United States is "full authority and responsibility for security and defense matters" relating to the three territories. Although the compacts may be terminated either by mutual agreement or unilaterally, the provisions related to defense are to remain in force for 15 years (Marshall Islands and Micronesia) or 50 years (Palau), respectively. In the case of Palau, a provision that closes Palau's territory to any military forces except those of the United States is to remain in effect indefinitely, unless it is terminated by mutual consent. In contrast, a closer relationship was established between the United States and the Northern Marianas Islands, another former component of the Trust Territory of the Pacific Islands. The Northern Marianas is not a freely associated state but rather a "self-governing commonwealth... in political union with and under the sovereignty of the United States."37 The United States retains "complete authority" in the areas of foreign affairs and defense; citizens of the Northern Marianas are U.S. citizens; and certain specified U.S. laws and provisions of the U.S. Constitution apply to the islands. The basic provisions of the agreement that creates the commonwealth may only be altered by mutual consent.
It is not known whether India and/or Pakistan would, at this stage, agree to a status for Kashmir that would include a unilateral right to independence at some time in the future. However, in other respects, associated statehood offers a notable example of territories that are fully self-governing and even possess some elements of international personality, yet remain for some purposes in association with a larger state. This arrangement has not yet been adopted outside the context of decolonization, but the contested status of Kashmir suggests that some form of continued association with India and/or Pakistan may be both necessary and desirable for the near future.
Whatever agreement is reached among India, Pakistan, and the population of Kashmir, it would be appropriate to clarify that the agreement could not be altered without the mutual consent of both the people of Kashmir and the respective governments. Such clarification would remove any confusion over whether Kashmir's status represents a mere delegation of power from India and/or Pakistan or a mutually agreed arrangement based on the exercise of free will or self-determination by the Kashmiri people themselves. This element is particularly important, given the international interest of the United Nations and others in settlement of the Kashmiri dispute.
Any new arrangement for Kashmir would undoubtedly require constitutional amendments in India and Pakistan, and such amendments should be entrenched in the usual manner in each country. However, it would also be desirable, in my opinion, to entrench any new status internationally, as well. This could be done in a variety of ways, but the simplest procedure might be for India and Pakistan to enter into a treaty that would outline Kashmir's status, with or without the formal involvement of the United Nations or any other international guarantor.
A treaty between Italy and Austria was utilized to entrench South Tyrol's autonomy following the end of World War II, as an annex to the Treaty of Peace with Italy. A non-treaty agreement between the two countries, adopted in 1969, subsequently spelled out a number of specific steps that Italy agreed to take to address the status of South Tyrol, although it was not until 1992 that Austria declared itself satisfied that the agreement had been fulfilled. A Treaty of Guarantee among Cyprus, Greece, Turkey, and the United Kingdom accompanied the 1960 independence of Cyprus, thus confirming the legal obligations undertaken by the parties. A 1984 treaty between the United Kingdom and China set forth in detail the arrangements that China was to adopt to ensure a "high degree of autonomy" for Hong Kong, when the latter was returned to Chinese sovereignty in 1997.
Given the geostrategic importance of Kashmir, as well as the long-standing UN interest in the situation, consideration should be given to calling on the UN Security Council to play a role in overseeing any agreement reached between India and Pakistan. A convenient vehicle for such approval might be as part of a resolution to end the UN peacekeeping operation, UNMOGIP, that has been operating in Kashmir along the Cease Fire Line over the period 1949 - 1972 or Line of Control since 1972.
As provided in the Proposal, any agreement on the status of Kashmir also should be subject to a referendum, plebiscite, or other direct means of ascertaining the wishes of the Kashmiri people on both sides of the Line of Control. Although a simple yes or no decision on any agreement might suffice, the possibility of a much more detailed series of discussions or plebiscites to determine the nature and boundaries of one or more Kashmiri entities also might be considered. An admittedly complicated, but successful, model for such a process might be the series of votes held in Switzerland in 1974-1978 to create and determine the boundaries of the new canton of Jura.
Finally, a provision regarding dispute-settlement, in the event of a disagreement over the extent of authority exercised by either Kashmir, India, or Pakistan, should be included in the agreement. If Kashmir is to have a separate judiciary, initial challenges to the jurisdiction of any of the parties might be brought in Kashmiri courts. Appeals from any decision could be brought to the supreme courts of India or Pakistan, depending on which government was concerned.
In addition to or as an alternative to domestic judicial action, a mixed arbitral commission could be established for the sole purpose of adopting binding interpretations of the agreement reached among the parties. Such a commission could be composed of the three parties, with or without other international participation. Of course, ultimate appeal to the International Court of Justice also would be possible, but only states may be parties to contentious cases before the Court.
The most important principle with respect to self-government or autonomy arrangements is that there are no restrictions imposed by either international law or practice on the specific form that such arrangements may take. If the assumption in the Proposal that all governmental functions except defense and foreign affairs will be assumed by Kashmir is accepted, then the primary task may be to ensure that authority is effectively transferred. However, if any of the parties feels that a more specific articulation of powers to be assumed by Kashmir is needed, then one should identify 1) those areas in which Kashmiris believe that self-government is essential; 2) areas in which continued linkages and cooperation with India and/or Pakistan are desirable; and 3) symbolic issues which may not have great practical impact on daily Kashmiri life but which would strengthen Kashmiri identity and culture.
It should also be borne in mind that assumption of greater control and authority is normally accompanied by greater obligations and responsibilities, particularly in the areas of finance and the economy. The level of economic support received by Kashmir will be crucial in determining whether or not a self-governing Kashmir will be able to meet all of its obligations. If not all financial issues can be resolved immediately, consideration might be given to a gradual or conditional assumption of additional powers by Kashmir rather than an immediate assumption of competence that would require unavailable resources.
From a comparative perspective, separate Kashmiri control over currency and the banking system would be an exception, not the norm. Although greater local control would, in theory, enable Kashmir to adapt more quickly to changing economic conditions, the geographic location of Kashmir will continue to render it highly vulnerable to outside economic factors. Better communication and cooperation among Kashmiri, Indian, and Pakistani authorities might be a more promising path of change (at least initially), as opposed to greater separation of Kashmiri economic and monetary policy from that of its neighbors.
Of course, all of the suggestions in this Memorandum and in the Proposal itself assume a good-faith willingness to negotiate on the part of Kashmiris, Indians, and Pakistanis. The Proposal is a creative "way forward" that attempts to do justice to the real needs of the peoples and countries involved, even though it may not meet the demands of some for either immediate independence or unqualified integration. But even if no provision for revision or amendment is built in to an eventual agreement, all those concerned should keep in mind that democratic political processes are designed to ensure that political institutions change with the times, not that they remain forever static. Given the suffering of all "sides" in Kashmir, a realistic way forward is to reach a reasonable agreement that will be acceptable for the foreseeable future. Any attempt to search for a perfect arrangement that will last forever and fully satisfy everyone is probably doomed to failure.