UN Resolutions and an Independent Kashmir, Dr Shabir Choudhry

UN Resolutions and an Independent Kashmir

Dr Shabir Choudhry 

It should be noted that the UN Resolution of 21 April 1948, stated that it was for 'The people of Kashmir to decide in a fair and impartial plebiscite if they want to accede to India or Pakistan'.

In other words, the people of Kashmir had only two options available to them whether to join India or Pakistan, the option of independence was not offered to them. This is largely because the ‘The Jammu and Kashmir Question’ or ‘India and Pakistan Question’, as it was later called, was represented by the officials of India and Pakistan. Officials of both countries presented the case as it suited their national interest with little or no care for the people of Kashmir.

But when the Commission reached the Sub Continent and had the opportunity to meet the Kashmiri people, even though the officials of the both countries all the time shadowed them, they opened the door for an independent Kashmir.

Whereas the Resolution of 21 April 1948, stated that the people of Kashmir could only accede to India or Pakistan, the Resolution of 13th August 1948 said that the "future status of the state shall be determined in accordance with the will of the people...."

The phrase "future status" could mean the following:

1.    Accession of the State to India;

2.    Accession to Pakistan or

3.    An independent Kashmir. 

Fearing the possibility of an independent Kashmir, The Pakistan Foreign Office, in a letter to the Security Council, enquired if the words 'future status' could mean an independent Kashmir. The reply was that the Kashmiri people could have an independent Kashmir if that was the majority decision. After receiving this reply, the Pakistan government decided to suggest an amendment to this resolution. It was unfortunate that the Pakistan government in its letter to General A. G. L.  McNaughton, President of the Security Council, dated 28 December 1948, wrote to propose a change in this clause:

Paragraph 1 (A) reads,

For the words "the future status of State of Jammu and Kashmir" substitute the following:

"The question of the accession of the state of Jammu and Kashmir to India and Pakistan. 20

As a result of this request the next resolution which was passed on 5 January 1949, read like this:

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

Despite this important change in the Resolution, General A. G. L.  McNaughton after intensive interaction between the both governments, in his report in December 1949, still proposed the following:

"To determine the future of Jammu and Kashmir by the democratic method of a free and impartial plebiscite, to take place as soon as possible". 21

Pakistan once again wrote him a letter and asked for a change that was made in the Resolution of 5 January 1949. What this meant was that the government of Pakistan, in principle, was prepared to accept the whole of the State going to India in the event of the plebiscite going against Pakistan; but was not prepared to accept the State of Jammu and Kashmir becoming an independent if the people voted in favour of this option.

It must be noted that under the Security Council Resolution, Pakistan had to withdraw all of her troops from the State, and India only had to withdraw 'bulk' of her troops. This could mean that India could have had 49% of her troops present in Kashmir and with Sheikh Abdullah at the helm of political affairs the result of the plebiscite could well have gone in India’s favour.

Even those writers who are regarded as pro Pakistan seem to agree that if the proposed plebiscite had taken place while the Indian troops, whatever their number, were present and Sheikh Abdullah was in charge of the Kashmiri administration the outcome of the Plebiscite would have gone against Pakistan. Sheikh Abdullah was the most popular leader and the atrocities committed by the Tribesmen sponsored by Pakistan were still fresh in peoples mind. Perhaps Pakistan, realising this eventuality, was not too keen in pulling out her troops from Kashmir.

But it is demoralising and disappointing to note that Pakistan too was interested in territorial gains and was not really concerned about the welfare of the people or the right of self-determination of the people of Kashmir. Had welfare of the Kashmiri people and principle of self determination being Pakistan's first priority, then perhaps the government would have acted differently and:

1.    Would not have changed the title of the case from 'The Jammu and Kashmir Question' to 'India and Pakistan question';

2.    Would not have limited the choice of the Kashmiri people to accession to India or Pakistan.

Pakistan's policy regarding Kashmir still has not changed. Pakistani government officials talk about human rights violations in the Indian occupied Kashmir, and rightly so because India is guilty of human rights violations, but what about the rights of the people living in Gilgit Baltistan?

These people oppressed and deprived of fundamental human rights. They don't have even those limited rights enjoyed by people in Azad Kashmir. If the Pakistan government is sincere with the right of self determination of the Kashmiri people, then she should not be imposing any restrictions on them by saying that they cannot remain independent. Time and again they very openly opposed the idea of an independent Kashmir.

Pakistan pay lip service to Kashmiri people's right to self determination, and yet gives them only a limited choice of either joining Pakistan or India. This in practice means only one choice - accession to Pakistan, as the majority of the Kashmiris have rejected India's claim on Kashmir and openly declared their unwillingness to join India.

The point is that the Kashmiri people's right to determine their own future must not be circumscribed or limited. For whatever reason, if Kashmir has to accede to Pakistan, the decision must be voluntarily made by the people, not imposed on them.

Under the terms of the Resolution of 13th August 1948, the cease- fire became effective on the 1st January 1949.  On 5th January 1949, the second Resolution was passed which was supplementary to the Commission's resolutions passed on the 13th August 1948.

In the view of many writers and commentators, the nature of Kashmir dispute changed with the passage of this Resolution.  From then onwards it was no longer a question of right of self-determination of the Kashmiri people; rather the Kashmiri people, according to the Resolution, would be given a limited choice to decide if they wanted to become Indian or Pakistani; thus implying that it was a territorial dispute between the two countries, not a right of self determination as acknowledged in the UN Charter. 22

(An excerpt from my PhD research which is published as a book).

Writer is a political analyst, TV anchor and author of many books and booklets. Also, he is Chairman South Asia Watch and Director Institute of Kashmir Affairs. Email:drshabirchoudhry@gmail.com   

View my blog and web: www.drshabirchoudhry.blogspot.com