Kashmiri struggle and the UN Resolutions, Dr Shabir Choudhry

 Kashmiri struggle and the UN Resolutions

Over the past few weeks the UN Resolutions on Kashmir are under discussion again; and various people with some understanding of jurisprudence of these Resolutions are expressing their views on this important subject. Right of expression is fundamental to democracy and human rights; and these people have every right to express their views either opposing the UN Resolutions or supporting them.

However, this controversy started with the speech of Professor Abdul Ghani Bhat, which he delivered on 14 May 2012, that the UN Resolutions were no longer “practically implementable” in the State. Professor Bhat is known for making controversial statements. During his visit to Pakistan few years ago he clearly stated that Jammu and Kashmir should be divided. This was a view of a Kashmiri leader who claims to be working for independence of Kashmir and working for the rights of people; and at the same time he suggested that his country should be divided.

Professor Bhat was once a Chairman of the united APHC, which also claimed to represent people of Jammu and Kashmir; and after the split in the APHC, now he is a senior leader of the APHC (M). Both groups of APHC believe that the UN Resolutions provide a strong base for the resolution of the Kashmir dispute; and that the UN has a role to play in this matter.

It must be remembered that General Musharaf also thought the UN Resolutions did not provide a practical solution under the prevailing political situation; and he as a President of Pakistan made a number of suggestions which all deviated from the UN Resolutions and offered a division of the State. Sad thing is some of the critics of Professor Ghani Bhat were acting as ‘salesmen’ of General Musharaf and were busy trying to sell his ideas to people of Jammu and Kashmir and world at large.

People who have opposed the statement of Professor Bhat are angry because in their view the UN Secretary General Ban Ki-moon during his visit to India in April 2012, supported the Kashmiri struggle; and Professor Bhat’s statement is a stab in the back. In a response to a question on Kashmir the UN Secretary General said the “will” of the people there must be respected while finding any solution. “I hope this issue (Kashmir) is addressed peacefully without violence and respecting wills of the people there”. He further said Kashmir dispute should be resolved “without resorting to any violence and fully respecting the human rights sentiments there.” However, he strongly opposed terrorism, he said, “Terrorism cannot be justified under any circumstances, for any justification and for any reason. It should be eliminated and stopped”.

While the UN and its Resolutions have their own importance, but it must be understood that our struggle started before the UN came in to existence. We did not start our struggle because the UN passed some Resolutions on that. Right of self determination is a fundamental human right and is highly respected in all societies, especially in the West. It is our birth right – a right which is not negotiable; and that is not subject to sanction of any international forum.

The UN General Assembly Resolution 2649 (30 November 1970) on Self Determination- Principle and The Law reads: 1. Affirms the legitimacy of the struggle of peoples under colonial and alien domination recognized as being entitled to the right of self-determination to restore to themselves that right by any means at their disposal;

2. Recognizes the right of peoples under colonial and alien domination in the legitimate exercise of their right to self-determination to seek and receive all kinds of moral and material assistance, in accordance with the resolutions of the United Nations and the spirit of the Charter of the United Nations;

3. Calls upon all Governments that deny the right to self-determination of peoples under colonial and alien domination to recognize and observe that right in accordance with the relevant international instruments and the principles and spirit of the Charter;

4. Considers that the acquisition and retention of territory in contravention of the right of the people of that territory to self-determination is inadmissible and a gross violation of the Charter;

Anyhow, after the Tribal attack on Kashmir the Ruler of Jammu and Kashmir was forced to seek help from India, which was only made available after Kashmir’s ‘Provisional accession’ with India. Because of their claims on Jammu and Kashmir, both India and Pakistan had first military clash over Kashmir, however, later on Mountbatten, who was at that time a Governor General of an Independent India, advised India to take the matter to the UN. In this regard Pakistani Prime Minister, Liaquat Ali Khan was also taken in to confidence; and India approached the UN Security Council under Article 35 of the UN Charter.

The Security Council passed many resolutions on Kashmir, some were passed before the UN Commission for India and Pakistan reached the region to investigate the matter, and some were passed afterwards; however, two Resolutions known as UNCIP Resolutions are fundamental to understanding of the Kashmir dispute, as they explain which country had to do what to resolve the dispute. The UNCIP Resolution of 13 August 1948 stated:

The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the Truce Agreement both Governments agree to enter into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured.

The phrase future status implies: accession to India, accession to Pakistan or an independent Kashmir. This was replaced on request of Pakistan with the following in the next Resolution that was passed on 5 January 1949: 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;

The UNCIP Resolution on 13 August 1948 further stated that:

(l) 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 endeavor to secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistan 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 Pakistan troops will be administered by the local authorities under the surveillance of the Commission.

Once the government of Pakistan had complied with the above, the ‘the Government of India agrees to begin to withdraw the bulk of their forces from the State in stages to be agreed upon with the Commission’. The Resolution asked the Government of India to: ‘ensure that the Government of the State of Jammu and Kashmir will take all measures within their power to make it publicly known that peace, law and order will be safeguarded and that all human and political rights will be guaranteed.’

Those who have some knowledge of the Kashmir dispute know who has not implemented the UN Resolutions: the Pakistani forces are still in areas of Jammu and Kashmir under their control, and India also has a large army stationed there; and human rights abuses take place in all parts of the divided State. It must be noted that what the UN Resolutions provided to us people of Jammu and Kashmir was not right of self determination, but a right of accession. Our right of self determination was impliedly mentioned in the Resolution of 13 August 1948; but it was limited to the right of accession in the UNCIP Resolution of 5 January 1949.

Despite the above, the UN Resolutions are important because they acknowledge that:

·      The State of Jammu and Kashmir is disputed. Furthermore;

·      They clearly define the geographical boundaries of the State of Jammu and Kashmir, namely Gilgit Baltistan, Azad Kashmir, Jammu, Valley of Kashmir and Ladakh.

·      Apart from that the UN Resolutions acknowledge all social, political and other fundamental human rights of people of Jammu and Kashmir. They asserted that ‘All authorities within the State of Jammu and Kashmir will undertake to ensure in collaboration with the Plebiscite Administrator that:

1.   ‘There is no threat, coercion or intimidation, bribery or other undue influence on the voters in plebiscite;

2.   No restrictions are placed on legitimate political activity throughout the State. All subjects of the State, regardless of creed, caste or party, shall be safe and free in expressing their views and in voting on the question of the accession of the State to India or Pakistan. There shall be freedom of the Press, speech and assembly and freedom of travel in the State, including freedom of lawful entry and exit;

3.   All political prisoners are released;

4.   Minorities in all parts of the State are accorded adequate protection; and

5.   There is no victimisation.’

Despite all the above we have to acknowledge some bitter facts that the Kashmir dispute has not been debated in the UN for some decades. Last time it was discussed as a dispute on the floor of the UN was on 25 November 1965; and since that time the Pakistani governments have shown no interest to activate the UN procedures to resolve the Kashmir dispute. Since 1996, it is subject to annual reminder from a member state that the Kashmir dispute can remain on the UN agenda, as the Kashmir dispute has lost its previous status enjoyed since 1948. Furthermore, the UN Resolutions are only used for public consumption, mainly to fool people, as terms of reference on the Kashmir dispute at the international level is Simla Agreement of 1972. Article 6 of the Simla agreement reads:

‘Both Governments agree that their respective Heads will meet again at a mutually convenient time in the future and that, in the meanwhile, the representatives of the two sides will meet to discuss further the modalities and arrangements for the establishment of durable peace and normalization of relations, including the questions of repatriation of prisoners of war and civilian interests, a final settlement of Jammu and Kashmir and the resumption of diplomatic relations’. 

 
Whether we like it or not, fact however, is that since the Simla Agreement both India and Pakistan have tried to resolve the Kashmir dispute bilaterally without any reference to international forums or third party mediation. I would not say that the Simla Agreement has superseded the UN Resolutions; however bitter fact is that these Resolutions, at least, provided the people of Jammu and Kashmir a right to either accede to India or Pakistan. The Simla Agreement has even denied people of Jammu and Kashmir that limited right; and empowered the both governments to determine ‘a final settlement of Jammu and Kashmir’.

All the negotiations after the Simla Agreement have been bilateral; and important step in this regard was the Lahore Declaration of 1999. It is believed that both Prime Ministers had a tacit agreement on a solution on Kashmir and were planning to sign it, but Nawaz Sharif lost power due to a military take over in October 1999. General Musharaf also tried to apply his ideas; and the Foreign Minister of his government claimed that an agreement was reached and it only needed signatures of both parties, but due to Pakistan’s internal problems it was not done.

Of course people of Jammu and Kashmir or those who claim to represent them were not part of any negotiation process; and much talked about ‘will’ of the people were not given any credence. We people of Jammu and Kashmir often demand that we want to be part of negotiations. It is a just demand; but question is who will represent people of Jammu and Kashmir? We have either regional leaders or alliances which only represent people of one region or a religious group; and do not command support of all sections of the Jammu and Kashmir society. So the first step in this regard should be to put our house in order.