Kashmiri struggle and the UN Resolutions
Dr Shabir Choudhry
23 May 2012
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 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 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 Jammu and
Kashmir Pakistan Pakistan
(2) The Government of Pakistan Jammu and Kashmir Pakistan
(3) Pending a final solution the territory
evacuated by the Pakistan
Once the government of Pakistan had complied with the
above, the ‘the Government of India Jammu
and Kashmir
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
- ‘There
is no threat, coercion or intimidation, bribery or other undue influence
on the voters in plebiscite;
- 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
- All
political prisoners are released;
- Minorities
in all parts of the State are accorded adequate protection; and
- There
is no victimisation.’
Kashmirerms
of reference on the Kashmir dispute at the international level is Simla
Agreement of 1972. Article 6 of the Simla agreement reads:
Whether we like it or not, fact however, is that since the Simla Agreement both
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.
Writer is a
political analyst and author of many books and booklets. Also he is Director
Institute of Kashmir Affairs.
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