This Blog provides an insight on the Kashmir-issue, India and Pakistan. The articles on this Blog can be best described as thought-provoking. The articles thrive to trigger debate about the miseries enslaved Kashmiris are facing and discuss also possible solutions to this long standing conflict. It also aims to convince readers why Independent Kashmir is the best solution for all parties involved.

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Monday, July 23, 2012

Understanding UN Resolutions on Kashmir

“The truth is what it is, not what should be: What should be is a dirty lie” (L. Bruce)

We are talking of UN Security Council Resolutions on Kashmir. What is their import?India lodged a complaint under Article 35 (Chapter VI) of the U.N Charter in the U.N Security Council on January 1, 1948, charging Pakistan with “aiding and abetting” tribal invasion of Jammu and Kashmir which it said had acceded to Indian Union through an instrument of accession signed by the then ruler.

In its first resolution of 17 January 1948, Security Council called upon India and Pakistan to exercise restraint. Three days later through another resolution (Resolution 39), it created the UN Commission for Indian and Pakistan (UNCIP) to investigate the dispute and mediate between the two countries.

In another resolution (Resolution 47) of April 21, 1948, SC called for cessation of hostilities, withdrawal of all Pakistani troops and tribesmen and bulk of Indian troops (except for a minimal number required for maintaining law and order), allowing return of refugees, release of political prisoners and holding of a U.N supervised Plebiscite in the princely State of Jammu and Kashmir under a plebiscite administrator to determine the aspirations of her people. It was supported by another resolution of June 3, 1948.

After deliberations with Indian and Pakistani leadership in July 1948, the UNCIP produced a proposal calling for an immediate ceasefire and a truce agreement between India and Pakistan, withdrawal from the J&K of all Pakistani tribesmen and nationals and the bulk of India's troops. India rejected it saying the Security Council failed to blame the aggressor in Kashmir. Pakistan also rejected the proposal saying that Sheikh Abdullah, Prime Minister designated on March 5, 1948 was an ally of India and by, implication, able to influence the plebiscite in India's favour. Pakistan had reservations also about she withdrawing all forces from Kashmir while Indian retaining some of her troops. She argued it could potentially lead to coercion or intimidation of voters by Indian forces jeopardizing the result of the proposed plebiscite.

On December 11, 1948, the UNCIP laid out a new set of proposals that elaborated on the question of Plebiscite... As per the proposals: "The question of accession to India or Pakistan was to be decided by a free and impartial plebiscite, which was contingent upon having a cease-fire".

On January 5, 1949, the Security Council came up with a new resolution on J&K focusing on the holding of a plebiscite. Its first two clauses are as this:

1. The question of the accession of the State of Jammu and Kashmir to India or Pakistan will be decided through the democratic method of a free and impartial plebiscite;

2. A plebiscite will be held when it shall be found by the Commission that the cease-fire and truce arrangements set forth in Parts I and II of the Commission's resolution of 13 August 1948 have been carried out and arrangements for the plebiscite have been completed.

Accepting plebiscite as UN’s formula for resolving Kashmir issue, the Resolution proceeds to define the process of its implementation. But the Resolution makes the entire exercise of plebiscite subject to the implementation of Article 2 above. Now the SC Resolution of 13 August 1948 comprises two parts, I and II. Part I deals with cease fire between the two countries, which was carried out and we need not discuss it. But Part II states as this:

PART II: TRUCE AGREEMENT

Simultaneously with the acceptance of the proposal for the immediate cessation of hostilities as outlined in Part I, both the Governments accept the following principles as a basis for the formulation of a truce agreement, the details of which shall be worked out in discussion between their representatives and the Commission.

A.1. As the presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council; the Government of Pakistan agrees to withdraw its troops from that State.

2. The Government of Pakistan will use its best Endeavour to secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the State for the purpose of fighting.

3. Pending a final solution, the territory evacuated by the Pakistani troops will be administered by the local authorities under the surveillance of the commission.

B.1. When the commission shall have notified the Government of India that the tribesmen and Pakistani nationals referred to in Part II, A, 2, hereof have withdrawn, thereby terminating the situation which was represented by the Government of India to the Security Council as having occasioned the presence of Indian forces in the State of Jammu and Kashmir, and further, that the Pakistani forces are being withdrawn from the State of Jammu and Kashmir, the Government of India agrees to begin to withdraw the bulk of its forces from that State in stages to be agreed upon with the Commission.

2. Pending the acceptance of the conditions for a final settlement of the situation in the State of Jammu and Kashmir, the Indian Government will maintain within the lines existing at the moment of the cease-fire the minimum strength of its forces which in agreement with the commission are considered necessary to assist local authorities in the observance of law and order. The Commission will have observers stationed where it deems necessary.

3. The Government of India will undertake to ensure that the Government of the State of Jammu and Kashmir will take all measures within its powers to make it publicly known that peace, law and order will be safeguarded and that all human political rights will be granted.

4. Upon signature, the full text of the truce agreement or a communiqué containing the principles thereof as agreed upon between the two Governments and the Commission will be made public.

Now the position is that on December 25, 1948, Pakistan formally conveyed to the Security Council its acceptance of the Resolution of 13 August 1948. India had already accepted it. But Pakistan failed to implement its clauses, and as such, the UNCIP was unable to communicate to India ratification of implementation of Resolution of 13 August 1948 by Pakistan. And with that, the question of plebiscite fell through and was never revived at the UN level.

Why Pakistan did not implement the Resolution of 13 August 1948? We don’t have any convincing answer. Maybe it was not confident about the outcome of the plebiscite: maybe it was apprehensive of losing the strategic Northern Areas (present Gilgit-Baltistan), something which the Anglo-America Bloc was loath to happen. The net result was that the UN Resolutions became un-implementable and plebiscite redundant. That is why former UN General Secretary Kofi Annan had said “that the General Assembly cannot implement the resolutions of the UNCIP.”

The question is whether in the light of these realities there is justification for accusing UN of not implementing its Resolutions on Kashmir? The factual situation is that these resolutions are based on choice between India and Pakistan; these do not allow unlimited self-determination which means a choice without limitation. If the resolutions were based on self-determination like East Timor, then under the UN Charter, Secretary General could move the case at UN level. In that situation he was not obliged to wait for the willingness of India and Pakistan to discuss the matter in the UN. This was precisely what two former General Secretaries Boutros Ghali and Kofi Annan had stated. Thus not the UN but India and Pakistan are responsible for dragging Kashmir’s to a situation of misery and suffering because they made Kashmir a territorial dispute between them.

Security Council President General A. G. L McNaughton’s mediation in December 1949 failed to manage an agreement between the two sides. He had suggested demilitarization of Kashmir as precursor to impartial plebiscite. Owen Dixon replaced UNCIP in 1950, pursued demilitarization proposal but failed and proposed “regional plebiscite” now known as Dixon Plan. It suggested (a) holding a Plebiscite in the whole State of Jammu & Kashmir, region by region (b) holding a Plebiscite only in regions which were 'doubtful', the rest would constitute those regions that were expected to vote definitely for accession either to India or Pakistan. The doubtful region was meant to be the Valley of Kashmir. After the failure of Owen Dixon, Frank Graham was inducted to continue the effort of mediation as a U.N representative. Graham unsuccessfully worked from 1951 to 1953 when the buck was passed on to. Gunnar Jarring in 1957, but again with no success.

In the wake of the termination of the mandate of UNCIP, the U.N Security Council passed Resolution 91 on 30 March, 1951, which established the United Nations Military Observer Group in India & Pakistan to monitor the ceasefire line (now called Line of Control, the border that divides Indian and Pakistani controlled parts of Kashmir) in Kashmir. The UNMOGIP still maintains its presence in both Indian-administered-Kashmir and Pakistan-administered-Kashmir.

On 23 January 1957, Jammu & Kashmir led by Bakshi Ghulam Mohammad adopted a constitution for the State and a resolution ratifying the State's accession with India. Pakistan raised the issue in the U.N Security Council and a day after, the UNSC passed a resolution which reiterated the earlier U.N resolutions on Kashmir that called for a final settlement of the dispute "in accordance with the will of the people expressed through the democratic method of free and impartial plebiscite conducted under the auspices of the U.N. Thus the 1957 U.N resolution deemed any constitutional change undertaken by India within Indian-administered-Kashmir as irrelevant to the resolution of Kashmir conflict.

However it is to be noted that this resolution did not allude to the condition imposed by the Security Council vide earlier resolution of August 13, 1948 on determining the will of the people through a plebiscite. India argued that this was a fractured resolution and hence not acceptable. Furthermore India claimed that the Security Council had not reacted to Pakistan declining to implement the resolution of 13 August 1948.

In 1962, the Kashmir Question was again debated in the U.N Security Council. However, it failed to pass a resolution in view of a Soviet veto, which discouraged the UNSC from pursuing the Kashmir question thereafter.

The last UNSC resolution (307) that dealt with Kashmir was passed in the wake of the India–Pakistan war of 1971, where Kashmir was not at the centre of the conflict between the two countries. The resolution could be passed only after India had declared a unilateral ceasefire. UNSC's attempts to pass resolutions during the 1971 war were blocked by a Soviet veto and with the signing of the Shimla Peace Accord between India and Pakistan in 1972, which laid stress on “bilateral solutions to the Kashmir issue,” the U.N involvement in Kashmir was in reality dead.

The fresh delineation of the "cease- fire line" - originally established in 1949 after the Indo-Pakistan cease-fire in Jammu& Kashmir - in Kashmir by India and Pakistan in 1972 converted the "cease-fire line" into "Line of Control" (LOC), which from an Indian perspective turned the temporary border in the disputed territory of Kashmir into a de facto 'permanent border between' India and Pakistan. Pakistan was forced to accept the change in the wake of its defeat in the 1971 war. India contended that with the formation of Line of Control, the mandate of the UNMOGIP had expired. But Pakistan supported its continuation interpreting it as reflection of disputed nature of Kashmir.

Since 1972 India has not reported to the UNMOGIP whereas Pakistan has continued to report Indian violations of the LOC to the observer group. While the movement of the UNMOGIP is unrestricted in Pakistan-administered-Kashmir, the observer group is nowhere in sight beyond their office premises at Sonawar locality of Srinagar. With its limited mandate, the group has played virtually no role in the conflict after 1972.

In October 2001, the UNMOGIP Chief, Major-General Hermann Loidolt described Kashmir as a "tormented country" and blamed India and Pakistan for playing games with Kashmir. The observer also described the LOC as a ceasefire-line and a disputed border, which fell under UNMOGIP mandate. The statement evinced a sharp reaction from India, which called the U.N observer's statement as 'uncalled for' and the Indian External Affairs Minister threatened to lodge a complaint in the U.N against the observer.

The most recent U.N effort to engage with Kashmir came during the Indo-Pak border confrontation of 2002, when India mobilized half a million troops along its border with Pakistan to pressurize Pakistan to stop aiding insurgents in Kashmir. U.N Secretary General Kofi Anan's efforts to mediate during the crisis were snubbed by India. Kofi Annan was not allowed to visit India and to placate Indian fears Annan stated that U.N resolutions on Kashmir were not "enforceable in a mandatory sweep". It meant that no power could enforce UN Resolutions on Kashmir unless both India and Pakistan were prepared for it. Worthwhile to note is that owing to negligence of Indian authorities, the peaceful march of a million Kashmir’s to the office of the UN Observers in Sonwar, Srinagar on March 1, 1990 was the outcome of that negligence.

Our readers should take into consideration UN’s failure in resolving Kashmir issue. There is the need that they seek an answer the question as to why the United Nations failed to act on the resolutions it had passed in regard to Kashmir issue. I can think of a few reasons.

1. Kashmir question was profiled at the UN as a territorial dispute between India and Pakistan and not a struggle of the people of J&K for full freedom and Independent. No country in the world is interested whether J&K becomes a part of India or Pakistan. If they forge relations with either of the two countries in line with their national interests.

2. India is bigger than Pakistan in size and in population. World countries’ regional, commercial and international relations with India are stronger than with Pakistan.

3. During Cold War era Pakistan remained camp follower of America-led imperialist camp. Therefore Socialist countries and the Soviet Union (of those days) did not lend any support to Pakistan in the matter of Kashmir. Not only that, Soviet Union at least thrice vetoed UN Resolutions that were tilted towards Pakistan.

4. Shimla Agreement recognized Kashmir a bilateral dispute. Ratification of the agreement by the UN considerably reduced its importance at the UN.

The focal point is that under the UN Resolutions Kashmir’s were given the right to choose one of the two masters. This means that UN Resolutions gave the only choice to Kashmir’s to choose one of the two countries for permanent slavery. Countries of the world have no interest in what the Kashmir’s choose, be he a white, black, Hindu, Muslim, Sikh or Christian. Therefore Kashmir could not become a full-fledged international case of self-determination like Palestine, Vietnam or Algiers. Every country advised that the issue should be resolved bilaterally by India and Pakistan as stated in Shimla Agreement.


“Aaj ham daar pa khenche Gaye Jin batun par
Kya ajab kal wuh zamane ko nisabon main mile”


Translation: (Convictions that have dragged us today to the gallows
No wonder, tomorrow same would find place in text books)

This article was published in Daily 'Greater Kashmir' on 20th July 2012.