LEGAL REVIEW OF KASHMIR CONFLICT: APPROACH TO RESOLUTION THROUGH RAWLS’ THEORY OF JUSTICE

After Independence, Kashmir has been the greatest source of conflict between India and Pakistan. Since the partition, it was apprehended that the conflict of Kashmir may linger on for several years before a decisive solution is reached. This problem has lead Pakistan and India into three major wars and several small-scale conflicts (it may lead to further conflicts in the future if not resolved). This article seeks to propose that Kashmir was definitely a bone of contention between the two newly independent states that could not be overseen; however, there were other various factors of domestic and international nature that triggered the conflict. This article, while discussing the background, it analyses the legal claims of both parties and political issues regarding the conflict. In the last section, a brief discussion on the possible future solutions will be put forward. The basic aim of the article is to review the matter of Kashmir conflict objectively and in sheer isolation from any sort of bias. The arguments and reviews put forward will be impartial in order to illuminate the matter on the one hand and eradicate misconceptions on the other.


INTRODUCTION
Pakistan and India are finding themselves increasingly tied together in the conflict, which is none other than the Kashmir dispute. Both the countries have fought three wars over Kashmir along with a plethora of small skirmishes; hence this dispute has proved to be a major obstacle to a peace settlement in the subcontinent (Mustafa, 1972).
Nonetheless, the Kashmir dispute is not just a territorial conflict. The religion plays a significant role in molding the underlying causes of the dispute. Kashmir's populace is predominantly divided into three major religious groups: Muslims, Hindus, and Buddhists. These religious groups correspond to five discrete regions of the state of Jammu and Kashmir. The population of Kashmir Valley and Gilgit at the time of partition was predominantly Muslim and Jammu was Hindu while Ladakh and Baltistan were Buddhist. But because of the fact that the population of Kashmir Valley is more than the collective population of the other four regions, the state, on the whole, is majorly Muslim. Rendering to the census of 1941, the total population of the state of Jammu and Kashmir was 4 million, out of which 3 million were Muslim. Due to the state's greater Muslim population, Pakistan proclaims its right regarding Kashmir, while India reiterates the accession's significance. Both countries employ complicated legal arguments to defend their respective stances pertaining to Kashmir (Khan, 2007).
British colonization proved to be the onset of this conflict (Copland, 1993). The contention between India and Pakistan was not unavoidable; rather, it was the inadequacy on the part of Britain regarding the post-colonial order, especially the issue of princely states. Though the legal claims made by both the countries since partition are valid, politics and lack of international will have weakened them. Nonetheless, each party's selfrighteous attitude and unilateral interventions have stalemated the issue (Farrell, 2003).

METHOD AND RESEARCH PROBLEM
The research is to understand the legal status of the Kashmir conflict and to propose a workable solution. The conflict is observed from the perspective of international and domestic law. Legal claims of both countries would be critically examined.
Kashmir dispute has plagued the relationship between the two countries for more than seven decades (Lamb, 1997). Both sides present their own claims over Kashmir with legal backing, but it is important to determine the validity of these claims and their legal implications. The conflict has been the chief stimulant of three major wars and the perpetual tension between the two states (Birdwood, 2005). Keeping in mind that both the countries are nuclear powers and possess sophisticated weaponry, it is extremely important to work out an adequate solution to maintain the region's peace. The significance of this research is that it analyses the legal claims of both parties. It aims to examine the historical conditions that gave birth to the conflict. This research also intends to propose a feasible solution to the conflict while putting forth a more unbiased approach.
This research focuses on the role of law in the conflict of Kashmir. Thus, its scope is limited to understanding the legal claims of both the countries and the obstinacy that has resulted in the stalemate. It does not address other aspects of the conflict. The study will be conducted within four months, from February to May.

LEGAL EXAMINATION OF THE CONFLICT
Legal arguments have proved to fuel the dispute rather than solving it. Both the rivals claim the validity of their position by citing international law and interpreting it to their own advantage. However, the line between law and politics has been blurred and both the parties fail to differentiate between binding law and non-binding law in legal arguments (Farrell, 2003). This section will shed light on the misunderstandings regarding the law and its consequences. It will also elaborate that these political and legal factors have resulted in the entrenchment and continuation of the conflict.

PARTITION AS CATALYST OF THE CONFLICT
Although internal tensions were existent in Kashmir before the partition and "communalism" was further nurtured by the colonial administration, the event that triggered the conflict was the partition (Farrell, 2003).
It has been contended by the revisionists that although popular sentiment was in favor of partition, the notion of partition was not fully espoused by Jinnah but only used as a strategy in dealing with the Congress (Roy, 1990).In any case, it seems that neither party was prepared for a sudden British withdrawal which was expedited by the advent of the Labour Party's government in Britain (Roy, 1990).
The appraisable act of decolonization of India was ironically executed in an irresponsible manner that failed to cope with complex issues. Had the issue of the accession of princely states been sorted out in a better-planned way, a perpetual interstate conflict would not have erupted.

LEGAL STATUS OF ACCESSION
The British provided the legal framework for the accession of the princely states in the form of the Instrument of Accession. The Maharaja of Kashmir executed the Instrument and Mountbatten formally accepted it, but it can be argued that the accession and the acceptance were temporary in order to provide military assistance to Maharaja. This argument is supported by the content of the letter written to the Maharaja by Mountbatten, which evidently mentions that the future of Kashmir will be determined in accord with the will of its people.
It is also argued that the accession would have been legal if a plebiscite had established it. The partition occurred at a time when the notion of self-determination was rallying acceptance and popularity and all the debates of the independence of India from British rule were rooted in this notion. The idea of self-determination was incorporated in the UN charter and the organization considers it as one of its foremost principles. It states that "(the goal of the organization is) to develop friendly relations between nations based on respect for the principles of equivalent rights and self-determination of the people" (United Nations Charter, n.d.). Therefore, the accession of Kashmir was carried out in clear disregard of the UN Charter and the principle of self-determination.
Although these arguments are valid to a significant extent, they are not completely infallible. The legality of the accession should be examined on two levels: on the level of domestic law and international law. Domestic Level: According to the domestic law, the India Independence Act contained no such conditions of a plebiscite for the accession of a state to either of the dominion. However, it provided that the dominions would continue to be administered by the Government of India Act of 1935. The Act, on the other hand, stated that "an Indian state shall be deemed to have acceded to the Dominion if the Governor-General has signified his acceptance of a Device of Accession executed By the ruler while declaring that he is willing fully acceding to the Dominion" (Government of India Act 1935, n.d).
Thus, under these two acts, the accession of Kashmir does not violate any law and Kashmir became a part of the Dominion of India upon the execution and formal acceptance of the Instrument of Accession regardless of the content of subsequent personal letters of Mountbatten or the statements of Indian politicians. Moreover, the accession of more than 500 states to either of the Dominions was carried on the same principle without any plebiscite (Thomas, 2020). At the same time, the idea of territorial integrity (a core attitude on India's side) is opposite to Pakistan's claims for selfdetermination as well as Muslim brotherhood.
International Level: Considering the context of international law and its analysis, the status of the concept of self-determination must be examined. Surely, selfdetermination is a well-established norm in contemporary international law (Castellino, 2000). Still, the principle of inter-temporal law requires that a particular issue should be examined in the light of the international law existent at the time of occurrence of the issue. Therefore, the status of the idea of self-determination at the time of partition must be examined. It has been argued that self-determination was mentioned in the UN Charter but only in a "limited" manner (Castellino, 2000). The significance gained after that was gradual. The crucial time of its evolution was the 1960s. During this time, several significant international resolutions were adopted. The latter Declaration, adopted in 1970, marked the complete evolution of the norm of self-determination (Castellino, 2000).
This brief review demonstrates that the idea of self-determination transformed into a norm well after the partition. Consequently, self-determination as a binding law did not apply to Kashmir as a hard or binding law in 1947. Thus, the premise that the accession of Kashmir was illegitimate cannot be propounded on this proposition.

LEGAL AUTHORITY OF UN'S RESOLUTIONS
The United Nations was still a newly born organization at the time the Kashmir issue was brought to its consideration. The cold war politics further diluted the efficacy of the Security Council to solve the issues. The UN did not have the status that it later attained; therefore, both India and Pakistan were able to cite or reject its authority for their own purposes. So, it can be concluded that there were some shortfalls in mediation attempts in the early years (Brecher, 1953).
Several instances prove the preceding statement. For example, both India and Pakistan manipulated the resolution made by UNCIP in 1948 to their own advantage. Both the parties have kept on blaming the other for noncompliance to the resolution. India accuses Pakistan of not withdrawing its troops; Pakistan accuses India of refusing to demilitarize and conduct a plebiscite. This exchange is well document in the literature pertaining to the topic (Farrell, 2003).
These exchanges are undoubtedly unproductive as it is obvious that the claims made by both countries are not based on international law; rather, they are vain attempts merely pointing at the delinquency of the other. It is also evident that the tenacities of the Security Council were not binding decisions pursuant to Article 25 of the UN Charter; they were commendations made under Article 38 (United Nations Charter, n.d.). The resolutions adopted by the UNCIP were also not binding; in fact, they were proposals. This can be proved by the statement of Josef Korbel, who wrote in 1949," (one) had to keep constantly in mind that (UNCIP) was an agency of good offices having no power to levy its decisions" (Korbel, 1949).
However, the Security Council's ineffectiveness is not surprising due to the rivalries and suspicions that existed between its permanent members. The clashing interests and partialities of the Soviet Union, USA, China, and the UK ensured inaction (Farrell, 2003).Some of the factors that made the Kashmir issue controversial were:

1-Kashmir borders with China;
2-USA's interest in establishing firmer relations with Pakistan; 3-involvement of Britain in the past sub-continent, and, 4-USA's distrust of India's commitment to the non-aligned movement.
Due to Pakistan's alliance with the US and India's relations with the USSR, any decision made against either of the countries was vetoed, as was the case with other cold war disputes. Moreover, the resolutions adopted by the UNCIP were all soft laws that only served as fuel for the arguments rather than settling it.

REPERCUSSIONS OF DOMESTIC LAW AND POLITICS
The political actions of India and the diplomatic actions of Pakistan have resulted in an ambiguous status of Kashmir. The domestic legislature adopted by each country regarding Kashmir has entrenched the conflict and manipulated the public opinion within the countries in such a way that any practicable move towards the resolution of the conflict would be perceived as a loss. Both parties have failed to recognize any potential legitimacy of other's claims while proclaiming their own uprightness (Murphy, 1990).
India's decision to establish a constituent assembly and framing a constitution for Kashmir has been detrimental to the resolution of the conflict. Although it has strengthened India's control over Kashmir, avoiding a truly democratic exercise of selfdetermination has created doubts regarding India's intentions for a plebiscite.
On the contrary, Pakistan's decision to make a military alliance with the US ruled out the chances of resolution of the conflict in its early years. Moreover, it has also been detrimental to Pakistan's relationship with India. The role of Pakistan's military leadership has also been controversial in this regard as they are accused of serving their own interests at the cost of Kashmir.

THE DEADLOCK
The bilateral talks have also been futile in solving the conflict. Nevertheless, they have managed to create a bilateral system of conflict resolution, which has only contributed to maintaining the status quo.
The strict bilateral nature of the Shimla Agreement has lent perpetuity to the conflict as no external power or organization can interfere. So as long as either of the countries refuses to agree on any of the issues, the situation will remain the same. This bilateralism has resulted in a stalemate and has done no better than establishing a line of control in the form of a de facto border. At the time when the UN has become capable enough for settling the conflict, either of the countries can cite the Shimla Agreement to deny its interference (Howley, 1991).

POTENTIAL SIGNIFICANCE OF INTERNATIONAL LAW IN CONFLICT RESOLUTION
In the previous section, it has been discussed that owing to certain reasons, international law has been ineffective in solving the conflict (Vaish, 2011). Despite this fact, the rules of international law should be at the center of conflict resolution. This section will discuss the role that the following can play in resolving the dispute:

THE DOCTRINE OF SELF DETERMINATION
It can be argued that the first part of the self-determinationfreedom from foreign domination-was completed when Britain withdrew its forces from Kashmir in 1947. But nationalists from both sides, as well as supporters of Kashmiri independence, would deny this. However, the second part -determination of the political future-is the real focus. Both Pakistan and India have certain validity in their claims of possession, and the possibility of power-sharing or independence can also be considered. So, the will of the people must choose their preferred arrangement (Brecher, 1953).
In the cases of self-determination, deciding who should exercise this right is the most difficult question. Suggestions have been made that it should be exercised by the people of the entire state, people of all the regions, or only by the people of Kashmir valley (Khan, 2007). This question is further complicated by the change in the demographics of the region resulting from political upheaval.
Despite the fact that there are no certain solutions to these problems in international law, they should be solemnly considered before any future attempt of resolution.

IMPORTANCE OF SIMLA AGREEMENT
The Simla Agreement has proved to be an impediment in the past due to its strict bilateralism. But it can also prove to be the preferable method of determining who should exercise the right of self-determination, as this Agreement will be an important factor in any of the future negotiations between India and Pakistan. The international community can also play a role if both parties agree; however, the ultimate responsibility and authority lie with the two countries.
According to the Shimla Agreement, the countries should have negotiated in the future and settled the dispute by peaceful means (Simla Agreement, n.d.). Unfortunately, this has not happened, and the stalemate still exists. Still, this Agreement provides an opportunity and requires India and Pakistan to resolve the dispute through bilateral talks.
In the future, If the situation of the stalemate remains the same and the Agreement completely fails to yield any progress, there can be two possibilities. First, India and Pakistan should enter into a new agreement. Second, the UN should intervene and take binding action for the resolution of the conflict.

UNITED NATIONS' MEASURES
As discussed previously that the UN has hitherto been unsuccessful in solving the dispute. The lack of success was generally due to cold war politics and the inability of the UN to take binding action. But this does not rule out the possibility of its future role in the settlement of the dispute.
There three primary roles the UN will play in settlement of the issue.

1-
The UN is the most relevant organization that pressurizes both the countries to engage in bilateral negotiations complying with the Shimla Agreement. Although it declined to intervene in the past (United Nations rejects Pakistan's appeal for intervention on J-K, 2019), it can perform this task while respecting the terms of the Shimla Agreement and eradicating past suspicions.

2-
The organs of the UN should show their readiness to play an active role in the resolution of the conflict. If the countries agree, it can also specify an organ or set up a commission to facilitate the process of negotiation.

3-
The UN may be forced to assert its pressure in order to maintain world peace and stability (United Nations Charter, n.d.). Although it should respect the bilateral regime, it should take binding action if the situation becomes openly hostile; as today, the SC is in a better position than it was in the cold war era.

BILATERAL COOPERATION
It seems oversimplified to say that the dispute should be solved with interstate cooperation considering that both the states have failed to do so. Nevertheless, interstate cooperation is the only means to reach an agreement that would be satisfactory for India, Pakistan and the people of Kashmir.
A detailed plan for mutual action is required, but first, the politicians of both countries should solemnly undertake the task keeping aside their own interests. They should stop providing lip service and avoid using the Kashmir issue for political propaganda (Thomas, 2020), and think for the betterment of the people. Besides, the discussion of past incidents and disputes that do not promote positivity should not be mentioned in the talks. Both sides should forsake their past claims of self-righteousness and workout a new agenda. If the states fail to accomplish this, then an outside intervention or another armed conflict is the only solution.

APPROACH TO RESOLUTION AND RAWLS THEORY
John Rawls was an American political philosopher who witnessed extreme poverty and destitution in his early years in American. Devastated with prevailing social injustice globally, shocking poverty in America and the consequences of the first world war inspired him to follow academia. Rawls was the first-hand witness of social inequality which prevailed over the following years around the world.
Rawls provided the theory of justice, where he stated that justice is the basic structure of society. Essentially, it is the virtue of society that should be upheld for social institutions' sound functioning. His theory was not limited to this, but it also discussed how these institutions would distribute rights while delineating the duties and liberties. The central problem of the theory of justice is to lay down the principles that would bring the social structures. He identifies inequality in society as an imbalance of justice, which leads to different consequences with respect to the extent of inequality and its form. The social contract that comes forth inclines to the excessive liberty that favors in a single direction, often due to the manipulation of the contract.
The two essential components of justice that should make their way dominantly in the social contract should be liberty and equality. They can be generalized as 1-there should be equal liberty for each individual of the society to its basic extend which should also comply with the generalized liberty in the system for all.
2-social and income opportunities should be equally integrated that they are of the fullest benefit to the least privileged and should also provide access to the official level and positions with fair conditions and equality for all.
Rawls defines his justice as all the social goods -liberty and opportunity, income and wealth, and the bases of self-respect -are to be circulated likewise unless an inadequate distribution of any or all of these goods is to the advantage of the least favored. The benefits, according to Rawls, are very significant since the betterment of an individual and establishment of a better society will depend upon social cooperation and establishing an alliance amongst the people for a collective betterment. This will also lessen the constraints of commitment among the people and authorities to help the community from which individual will benefit. Society is a communal venture for mutual advantage.
The relevance of using the Rawlsian theory of justice for resolving and understanding the lingering conflict of J&K is immense. Over the years, the increasing tension in J&K has been primarily due to deprivation of their social equality, rights, and injustice. Denial of democratic rights has prevented the conflict from being even close to resolution. Samantra Bose has stated that the uprising in J&K is because primarily because of the denial of the democratic rights of people. Labeling that as simply a Muslim uprising against the state would not be relevantly conceived, and all of this has still persisted not because of unacceptance of Muslims of secular state but because of the hopelessness that has prevailed over the years of acquisition of their basic political and social rights and hence justice. In consequence, India is getting more harm than good by maintaining a realist stance rather than an idealistic approach to resolution.
The second most important issue is the entitlement issue which has increased over time without any considerable thought. The claim of Pakistan and India over the region in the following years has significantly undermined the right of self-determination of Kashmiris. Such entitlement itself is in clear opposition to the political and social rights of Kashmiris. Matters like water resources and geo-strategic standpoint has induced securitization of the region, but both the countries being a nuclear power would avoid any major armed conflict resorting to diplomatic moves to tackle situations is violating the social-political sphere thus preventing any consolidation on what Kashmiris would want to propose. Even if these nations opt for war over such resources or armed conflict of different natures, the social injustice during the term would be of higher extend. On the other hand, Rawlsian theory seems a relevant approach that puts forward the notion of conflict-free society and justice with mutual cooperation, which seems to provide a way through these bleak circumstances by encouraging the consideration of self-determination while social and political rights to be provided to Kashmiris.

ECONOMIC INTER-DEPENDENCE
Economic interdependence is the reliance on keeping good relations with foreign countries to maintain trade and other economic and political incentives. This has played a major role in international politics and diplomacy. The trade between the country is estimated not only in an economic sense but also realized in political benefits over the real cost.
Economic interdependence can play a key role in the resolution of the conflict. Stimulating the economic dependence on each other would help Pakistan and India to create healthier diplomatic ties. Large-scale economic benefits would indulge the three parties to more peaceful resolution contentment over the mutual cooperation.

CONCLUSION AND RECOMMENDATION
This article analyzed the origin of the Kashmir dispute and its subsequent entrenchment. The partition has been deemed as the trigger of the overt conflict. The role of international actors has also been discussed regarding their failure to resolve the conflict due to their nonbinding action and competing interests of the world powers. Furthermore, each country's overemphasis on the "soft law" and unilateral has further complicated the dispute.
However, negotiations and international law provide the best opportunity for the settlement of the dispute. Considering the principle of self-determination, both countries should work for a bilateral solution to the conflict. The international community should also play an active role in promoting the disputants to put their heads together for a solution.
The matter has been dealt with the realist approach and has not culminated in any potentially significant resolution to the conflict. India and Pakistan being nuclear powers, have channeled their solutions in such a manner that reaching a resolution has become increasingly complicated. Their nuclear ability has limited the resolution to the conflict through diplomatic ways and eliminated the resolution through armed conflicts. Over the past years, lack of this understanding and struggle of dominance and security of the resources present in Jammu and Kashmir has let India completely ignore the social standing of the Kashmiris, deprivation of their social rights, injustice with completely undermined and limited political liberty has induced armed struggles in J&K, recent legislative activities such as the revocation of the articles 35A and 370 have just fueled the deteriorating circumstances, this has to be considered by India while on the contrary, this has not been the case on Pakistan's side, where political and social liberty is upheld (Shahid, 2018).
Resolution of the conflict while considering John Rawl's theory of Justice would be a positive direction. According to him and in the case of the current conflict, establishing justice and equality in IOJK would be a possible way forward. This would nurture political and social security, which Kashmiris have been deprived of since the conflict has emerged. Reduction in state oppression and entitlement of the region would increase the confidence of the local Kashmiri. The most essential element of their social and political liberty and equality is their right to self-determination. This has been constantly neglected due to the authoritative realist approach towards the region, which has been severely undermining the democratic right of Kashmiris. The win-win outcome for all the concerned parties-Pakistan, India, and Kashmiris-would only be achieved if viewed from a different perspective of Rawlsian theory that would be cooperation. Similarly, economic interdependence would elaborate on the need for initiating peaceful bilateral cooperation for the resolution of the conflict. This would not only help regularize the region's politics but also would provide grounds for healthier circumstances of cooperation and diplomatic relations, making way for a brighter light at the end of the tunnel for the concerned parties. Both sides should forsake their past claims of selfrighteousness and workout a new agenda. If the states fail to accomplish this, then an outside intervention or another armed conflict is the only solution.
Kashmir issue has lingered quite some time now with no clarity over its resolution. The ways and propositions for the resolution of the conflict until yet have gone in vain. There is an immense need for resolution considering different approaches. These new approaches could be considered in light of the previous attempts to resolve the conflict. Primarily establishment of the social and political status of Kashmiri has to be restored by India in order to show interest in a peaceful resolution. The conflict has rather intensified over time, and different perspectives and approaches may help in better diplomatic ties among the three parties. The right of self-determination would seem the most applicable way for the resolution, which should not be opposed by the concerned, while the restoration and consideration of Kashmiris should bring into the way for resolution. Increased mutual cooperation among the parties, especially Kashmiris and India, would help them have a transparent mechanism for mutual value integration. An increased economic interdependence would allow countries and the region to benefit from the growth of the economy and help bilaterally reach a conclusion.