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“UN” RESOLUTIONS ON KASHMIR- I | How relevant are they?

To bank on a resolution of that erratic body is to belittle the Kashmiris’ birthright
A. G. NOORANI
Srinagar | Posted : Jan 29 2016 1:08AM | Updated: Jan 28 2016 11:08PM
“UN” RESOLUTIONS ON KASHMIR- I | How relevant are they?
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On 5 January 2016, Syed Ali Shah Geelani held a meeting at his house of the increasingly dwindling band of active supporters to commemorate the anniversary of the Resolution of the UN Commission for India and Pakistan (UNCIP) on a plebiscite in Kashmir. It is doubtful whether many of those who make these resolutions as the only reference point for Kashmir, have ever read the minutiae of that document; still less reflected on a question of fundamental importance.

What if India or any other State had not taken the Kashmir dispute to the United Nations Security Council (UNSC) and, consequently, it had passed no resolution on it at all? Would the people of the State of Jammu & Kashmir have been deprived of their right to decide their future? Does that right derive from anything which any organ of the UN did or failed to do? To bank on a resolution of that erratic body is to belittle the Kashmiris’ birthright.
However, if “the UN Resolutions” are relied on as scripture by some in Pakistan and Kashmir, in India they are derided as being irrelevant and obsolete. Neither school cares to specify which resolution it has in mind, the ones adopted by the UNSC or by the body it set up, the UNCIP.
The Partition Plan of 3 June 1947 was followed by talks on its consequences. As early as on 13 June 1947 at a meeting of the Joint Defence Council over which Mountbatten presided, the differences – which have ruined the sub-continent – came to the fore. Jinnah asserted that it was for the ruler to decide on the issue of accession. Nehru rejoined that it was for the people to decide that issue. Jinnah made his stand public in two statements on17 June and 30 July.
The ACII declared in a Resolution on 15 June that “the people of the States must have a dominant voice in any decisions regarding them” (The Times of India; 16 June 1947). By Jinnah’s logic Hari Singh was free to opt for India. Jinnah accepted Junagadh’s accession to Pakistan and strenuously encouraged the Nizam of Hyderabad not to accede to India. When, following the tribal raid from Pakistan, Hari Singh acceded to India, India stuck to its stand. The Instrument of Accession had a collateral document signed by Governor-General Mountbatten, on the very same date and also simultaneously with his acceptance of that Instrument, which said explicitly: “Consistently with their policy that, in the case of any State where the issue of the accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government’s wish that as soon as law and order have been restored in Kashmir and her soil cleared o the invader, the question of the State’s accession should be settled by a reference to the people.” (italics mine throughout). This recognised that an Indo-Pak dispute existed.
The White Paper on Jammu and Kashmir (1948) says that, “in accepting the accession the Government of India made it clear that they would regard it as purely provisional until such time as the will of the people could be ascertained.” In a public statement issued on 30 October, the Government of India, announced: “It is desirable to draw attention to the conditions on which the Government of India have accepted Kashmir’s accession.”
In law and morality, the collateral document is part of the main document the Instrument of Accession. No wonder the Government of India initially called the accession “provisional” or “conditional”. The Kashmiris’ right to decide their future was recognised and accepted along with acceptance of Kashmir’s accession to India and well before the matter was referred to the Security Council.
That an Indo-Pak dispute had arisen was also recognised by India. In the correspondence with Pakistan immediately upon the accession, in a telegram of 25 October 1947, addressed to Prime Minister of Britain and repeated the next day to the PM of Pakistan, Nehru said: “I should like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India. Our view which we have repeatedly made public is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of the people and we adhere to this view.”
In a telegram of 31 October 1947, to PM Liaquat Ali Khan, Nehru said: “Our assurance that we shall withdraw our troops from Kashmir as son as peace and order are restored and leave the decision about the future of the State to the people of the State is not merely a pledge to your Government but also to the people of Kashmir and to the world.” Broadcasting to the nation on 2 November Nehru said: “We have declared that the fate of Kashmir has ultimately to be decided by the people. That pledge we have given, and the Maharaja had supported it, not only to the people of Kashmir but to the world. We still not, and cannot, back out of it.”
Thus, regardless of “the UN’s Resolutions” and well ahead of them, the right of the people of Kashmir was never questioned, nor was Pakistan’s locus standi as a party to the dispute on the future of J&K. The UN Security Council (UNSC) passed Resolutions on Kashmir over 50 years from 1948 to 1998. Each deserves notice in the light of its background.
On 1 January 1948 India recorded its “desire to report the situation to the Security Council under Article 35 of the (UN’s) Charter”. It enables any Member to bring to the Council’s attention “any dispute or any situation” which might “lead to international friction or give rise to a dispute” whose continuance is likely to endanger peace. The Council makes “recommendations”. They are not binding on members. Chapter VIII concerns “Action with respect to threats to the Peace, breaches of the Peace, and acts of aggression”. The Council “decides” what measures to take. Its decisions are binding (Art. 25).
India’s three requests to the Council were to prevent the personnel of the Government of Pakistan from participating in the invasion of J&K; to call upon its nationals to desist from taking part in the fighting there and to deny the invaders aid and access. On 15 January Pakistan filed its counter-complaint ranging from Kashmir to other issues including division of cash balances and stores. This is why the mater was inscribed on the agenda of the Council as the “India-Pakistan Question”. The UN Commission was for India and Pakistan. Pakistan asked for a cease-fire and a plebiscite in J&K under a representative administration “as to whether the State shall accede to Pakistan or to India”. In his public statements on 17 June and 30 July 1947, Jinnah had said that the States had the right “to remain independent”.  But from 1948 onwards in every single pronouncement on the subject, Pakistan eliminated “The Third Option”, independence. This was a curtailment of the right to self-determination. 
Two arrogant and egregious pomposities Sir N. Gopalaswamy Ayyangar, former Dewan of J&K, and M.C. Setalvad, Advocate-General of India, were sent to argue India’s case. Pakistan sent its Foreign Minister Sir Muhammad Zafrullah Khan; a man of slender scruples but of great bonhomie to present its case. No wonder Zafrullah Khan outshone the other two, Ayyangar spoke on 15 January and Zafrullah Khan on 16 and 17 January 1948. Brevity was not the forte of Pakistan’s Krishna Menon whose legalism thwarted any prospects of conciliation. But both delegations were polite to each other given their earlier acquaintance in New Delhi”. 
  The Council adopted the following Resolutions:
1. On 17 January 1948 (S/651) asking the parties not to “aggravate the situation” and “to inform the Council immediately of any material change in the situation”. Pakistan did not when it sent 3 brigades into Kashmir later.
2. On 20 January 1948 (S/654) setting up a Commission comprising a member from each side and a third designated by them. Its terms of reference drove New Delhi into a frenzy. They covered much else besides Kashmir. “C. The Commission is invested with a dual function: (1) to investigate the facts pursuant to Article 34 of the Charter; (2) to exercise, without interrupting the work of the Security Council any mediatory influence likely to smooth away difficulties, to carry out the directions given to it by the Security Council, and to report how far the advice and directions, if any, of the Security Council, have been carried out.
“D. The Commission shall perform the functions described in clause C: (1) in regard to the situation in the JAMMU and KASHMIR State set out in the Letter of the Representative of India addressed to the President of the Security Council, dated 1 January 1948, and in the letter from the Minister of Foreign Affairs of Pakistan addressed to the Secretary-General, dated 15 January 1948; and (2) in regard to the other situations set out in the letter from the Minister of Foreign Affairs of Pakistan addressed to the Secretary-General, dated 15 January 1948, when the Security Council so directs.” This was poor consolation. The Indian delegation decided on 8 February to return for consultations; which was an intimation of withdrawal. It returned a month later. After prolonged consultations, the Council acted but only three months later.
3. On 21 April 1948 (S/726) a long resolution expanded membership of the Committee to five and directed it to “proceed at once to the Indian subcontinent and there place its good offices and mediation” at the disposal of both Governments. It provided for a cease-fire, disengagement of troops, a coalition government in Srinagar, and appointment of a Plebiscite Administrator. Pakistan accepted it on 30 April “under protest and with (without?) prejudice; India stood by its stand but agreed “to confer with it” (7 May).
4. On 3 June 1948 (S/819) the Council had to ask the lethargic Commission “to proceed without delay” to accomplish its task “in priority”. It directed “the Commission of Mediation to proceed without delay to the areas of dispute with a view to accomplishing in priority the duties assigned to it by the Resolution of 21 April 1948, And directs the Commission further to study and report to the Security Council when it considers appropriate on the matters raised in the letter of Foreign Minister of Pakistan, dated 15 January 1948, in the order outlined in paragraph D of the Resolution of the Council dated 20 January 1948.” This drove a vigorous protest from Nehru (5 June). He was assured on 9 June that Kashmir would retain its priority.
The Commission took eleven long weeks to get to work and arrived in Karachi only on 5 July. It was informed that Pakistan had sent three brigades to Kashmir. The UNCIP adopted two Resolutions. One, on 13 August 1948 (S/1100, Para 75) provided for withdrawal of Pakistan’s troops and the raiders; the territory so evacuated “will be administered by the local authorities under the surveillance of the Commission.” India was to withdraw “the bulk of its forces from the State”. 
It added this pledge: “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.” This wording left open the third option, independence. Nehru accepted it on 20 August 1948 in the light of his objections and the UNCIP’s clarifications. Zafrullah Khan proposed, on 19 August, either “a cease fire pure and simple” or “a complete and final solution” of the Kashmir “question”. The UNCIP regretted (19 September) his inability to accept the Resolution “without attacking certain conditions beyond the compass of the resolution”.
One of its members Joseph Korbel, a Czech nominated by India, wrote a memoir Danger in Kashmir in which he criticised its lethargy and style of work. His daughter Madeleine Albright became the U.S’ Secretary of State. The other members were from Argentina, Belgium, Colombia and the U.S. The UNCIP submitted its First Italian Report to the Security Council, then in session in Paris, on 22 November 1948 (S/1100). It said it was “pursuing its work”. Consultations in Paris yielded an agreement on the details of the plebiscite mechanism which were set out in the UNCIP’s second Resolution of 5 January 1949 which Geelani now recalls. It formed part of the Second Interim Report on 10 January 1949 (S/1196).
It required the UN Secretary-General to nominate a Plebiscite Administrator. He did so in March 1949 after consulting all concerned – Fleet Admiral Charter W. Nimitz of the U.S. He was to be inducted into the office by the Government of J&K. Refugees were to be repatriated. One wonders how many of them are alive in 2016. All others, bar the “citizens of the State” were to “leave the State” Nimitz was to report the result of the plebiscite to the UNCIP and to the State Government. The PoK regime (“Azad Kashmir”) was never put on a par with it.
Both countries accepted it. However, between August 1948 and January 1949 Pakistan lost much territory in Kashmir as a result of India’s new military offensive. Krishna Menon stated in the Security Council on 8 February 1957, that “the only international engagements that exist are two resolutions of the UNCIP dated 13 August 1948 and 5 January 1949. These are the engagements. If they were of a formal character, they might be treaties, but, at any rate, they are the engagements we have entered into – the resolution of 13 August 1948 and 5 January 1949”. Thus, the rights and contentions of both sides arising from events in the past were now merged into solemn agreements. The sole question that now remained was the implementation of these agreements.” It was wrong to talk of “aggression” once the Resolutions were accepted.
But, the plebiscite was contingent on agreement on disengagement of troops as envisaged in the UNCIP’s Resolution of 11 August 1948. It made two proposals on truce on 15 and 2 April 1949. Both States rejected them. The differences centred on the forces of the so-called “Azad Kashmir Government” in PoK which had swelled to 35 battalions since 1948 and on India’s flat refusal to withdraw “the bulk” of its forces. The UNCIP’s Third and Final Report, on 9 December 1949, (S/1430), admitted its failure. Its only success was to secure agreement, on a cease-fire line in J&K which was signed in Karachi on 29 July 1949.
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