Kashmir: UN Resolutions and their Validity

Much has been written on the issue of Kashmir and unless this issue is resolved, as per the wishes of the people of Kashmir, peace, stability and security in the region will remain illusionary. These resolutions are as valid now as they ever were for the reason being that the right of self-determination is and never was, subject to a timeline!

Kashmir issue first gained global attention in the aftermath of fighting that erupted when the Mujahedeen and the tribesmen from Tirah and Waziristan, in order to liberate Kashmir, formed a Lashkar and entered Kashmir on 22 October, and India on the other hand ordered her forces to occupy Kashmir on the pretext of defending it on the request of its ruler.

On 1st January 1948, India filed a complaint with the UNSC under article 35 of the Charter. Here the interesting fact is that India, by virtue of resorting to this article, has itself established that Pakistan is a legitimate party to this dispute. According to article 35, any member of the United Nations of which it is a party, can bring into the notice of the UNSC or UNGA, any dispute that is likely to endanger international peace and security. Therefore, Indian claim that Kashmir is the integral part of India is not true on this account as well.

The UN Security Council adopted resolutions 38 and 39 in January 1948 and a commission ‘UN Commission on India and Pakistan (UNCIP) – was established to investigate the dispute under the mandate of article 34 of the Charter that allows the UNSC to do so in order to determine the gravity of the dispute and its volcanic potential to erupt, to exercise its (UNSC’s) mediatory influence.

The significant attempt to resolve the dispute came in the form of resolution 47 (21 April) that envisioned holding of plebiscite ‘on the question of the accession of the State to India or Pakistan’ after ‘withdrawal of tribesmen from Kashmir’ followed by withdrawal of ‘bulk of Indian forces’. Moreover, it also enjoined upon Indian nationals, other than those who were normally resident in Kashmir, to withdraw as well. The obligations that it contained were reinforced by another resolution 51 that was adopted in June 1948. A Military Observer Group (UNMOGIP) was deputed to supervise the ceasefire agreement on 24 Jan 1949.

The UN appointed Judge Owen Dixon of Australia as UN Administrator to discuss arrangements for the plebiscite but the Indian Government was not ready to concede authority to the UN Administrator. He tried to be creative in proposing practical solution that could achieve the holding of plebiscite such as his suggestion to give some areas to Pakistan and some to India and to hold plebiscite in the valley of Jammu and Kashmir. However, since the stakes were too high for all the parties therefore Pakistan did not evince willingness for departing from the resolutions of the Security Council. When Mr Dixon presented his report to the UNSC, resolution 91 was adopted in 1951. Mr Dixon in his report highlighted two problems that were hampering any progress:
Disagreement over the extent of demilitarization and the procedure to ensure it.
And disagreement over the devolution of Government control for holding plebiscite that is free and fair.

In this resolution, a successor of Mr Dixon was appointed with a mandate to proceed to the subcontinent and to give effect to demilitarization. It also called upon both the parties to resolve their mutual disagreement through arbitration of UN Administrator.

In 1957, the resolution 122 reaffirmed that the final solution of Kashmir would be made in accordance with the will of the people, expressed through free and impartial plebiscite and conducted under the auspices of the UN. It came in the context of India’s attempt to legitimize Maharaja’s accession to India through the endorsement of so-called ‘Constituent Assembly’ in Srinagar.

There is no doubt that following Israel’s lead, which has been brutally suppressing the right of self-determination of Palestinians for more or less the same period of time’64 Years ‘India is doing the same in Kashmir. Draw an analogy and you will find striking resemblance between both. For instance, India has used every moment to create new facts just to legitimize its hold on Kashmir. From Shimla in 1972 to to-date, India doesn’t seem to be in a mood to follow the UN resolutions. It tried to use the POWs (Prisoners of War) as a duress to pressurize Pakistan to ditch the resolutions of the UNSC and to make Pakistan to commit that both the countries would ‘settle all issues between them bilaterally and exclusively by peaceful means.’

“There is no doubt that following Israel’s lead, which has been brutally suppressing the right of self-determination of Palestinians for more or less the same period of time’ 64 Years’ India is doing the same in Kashmir. Draw an analogy and you will find striking resemblance between both.”
Shimla agreement was the most crucial stage in which India tried to squeeze Pakistan to almost surrender its claim to the Kashmir by making it to agree that it would settle all the outstanding issues bilaterally ‘a euphemism of not invoking the resolutions of the Security Council. However, Pakistan, to its credit, managed to checkmate Indian designs by incorporating salutary changes to the proposed text of Shimla Agreement. But it doesn’t mean that it managed to escape unscathed from the agreement. It is because Pakistan was obviously in a position of disadvantage India. Pakistan could never have accepted those terms had it been any better situation than what it was after the 1971 debacle. But India was also not entirely successful in dictating terms as were mentioned initially in the Draft Agreement.

India claims that Pakistan had committed itself to resolve all the disputes bilaterally with reference to clause (ii) which states that:
The two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon.

However, the claim is deficient on the following accounts:

Firstly, the first clause (i) clearly stipulates that ‘the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries’.

Secondly, the article 103 of the charter clearly stipulates that the commitments to the charter will supersede any other commitments between the states in case any conflict arises to that effect.

Thirdly, in practice too, Pakistan never demonstrated that resorting to any international organization for resolving its differences with India was debarred by Shimla Agreement. For instance, Pakistan filed a complaint against India for not releasing its POWs in ICJ and Shimla Agreement did not debar the admission of that petition.

At present, if we analyze the Kashmir issue in the light of UN resolutions, no one could disagree that the UNSC resolutions are not applicable as they were in 1950s. However, with the passage of time and with the socio-politico and economic changes in the entire globe in general and in the region in particularly, a question arises if the UNSC resolutions, which were under Chapter 6 of the Charter ‘that is they cannot be enforced ‘will ever be able to see their implementation as envisioned by their framers?

A deep analysis will show that application of these resolutions depend upon the political and economic changes that are shaping our world. The reason is simple: UNSC is a Political body and the decisions take place through active political lobbying; use of right to Veto also needs to be considered. The hard fact is that National interest dictates the policy options and not stilted moral principles. The members of the Security Council ‘both permanent and non-permanent’ have their own interests and with the growing importance of India in region in the light of current socio-economic and political changes that are defining the region such as rise of China and its containment through India, the Kashmir issue is being viewed in the light of vested interests and not on its merit. Moreover, Pakistan ‘the staunch supporter of the Kashmir struggle’ is also mired in deep internal and external problems.

In the end, the bottom-line is till the time the Kashmiris are willing to offer sacrifices in the face of Indian suppression, the day is not far when they will realize their dream of getting independence and the outcome will be not much different as promised by the UNSC resolutions. I would like to mention an episode of exchange of views between US Assistance Secretary of State, Mr Talbot and Mr Zafrullah in the backdrop of Mr. Kennedy’s interest to resolve the dispute. Mr Talbot asked Mr Zafrullah if Pakistan would rely on the UN Security Council resolutions when India was of the view that implementation of those resolutions was not feasible as a lot of time had elapsed. Mr Zafrullah replied, ‘is the right of self-determination subject to a time limit?’

By: Waleed Farooq

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