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United
Nation's resolution and Kashmir
Romeet
K WATT
First
they ignore you,
Then
they laugh at you,
Then
they fight you,
Then
you WIN
Mahatma
Gandhi
NEW
DELHI
desires to deal with the Kashmiris in a domestic framework, and to
hold any talks with Pakistan independently from and consequent to
dialogue with the Kashmiris. India’s unwillingness to alter policy
is armoured by its belief that Pakistan would play a spoiler’s
sport if India commenced an extraordinary programme towards the
Kashmiris. However, on the other hand, formally, the government of
Pakistan still holds to the 1949 UN resolutions and their call for a
plebiscite in which Kashmiris can choose to join either Pakistan or
India. Yet, since early 2001 Pakistani government spokesperson have
changed their tactics, articulating that Pakistan may agree to a
resolution that satisfies Kashmiris.
Taking
the UN resolutions by which Pakistan swears it would be clear that
while the legality of accession of the state of J&K to India was
consistently and explicitly accepted in those resolutions, the
expression, ‘Pakistan Occupied Kashmir’ is derived from these
very documents. The Kashmir issue was
introduced in the United Nations when India complained to the United
Nations on January 01, 1948 of Pakistani aggression on the Indian
State of Jammu and Kashmir. It made it unambiguous that “the
Indian government requests the Security Council to adjure Pakistan
to immediately stop what it had just started as it is considered an
aggression on India.”
On
December 3, 1947, Nehru wrote to S M Abdulla that Kashmir had become
to him a symbol of basic conflict in India and on the decision there
‘one might almost say, depends not only the future of Kashmir but
the future of Pakistan and to a considerable extent the future of
India.’
On
January 20, 1948, the Security Council set up a three-member
commission. On April 21, 1948, the council not only expanded its
membership to five but also laid down the details of a plebiscitary
solution. A plebiscite administrator was to be nominated by the UN
Secretary General. Para 10(b) said: “The plebiscite administrator,
acting as an office of the State of Jammu and Kashmir, should have
authority to nominate his assistants ...... and to draft regulations
governing the plebiscite. Such nominees should be formally appointed
and such draft regulations should be formally promulgated by the
State of Jammu and Kashmir.” This in itself is an obvious
acknowledgment of the legality of Kashmir’s accession to India,
India’s external sovereignty over the State, and the legal
authority of the government of the State.
When
the commission arrived in Pakistan in July, it received specific
information that three brigades of regular Pakistani troops had been
fighting in Kashmir since May. On July 15 1948, Mountbatten (from
London) wrote to Nehru, “…… with such evidence before it,
commission would …… reasonably favourable report ……… to
resole the tangle …… acceptable to India.”
However
the commission overlooked these incursions, and this led to loud
protests from the Indian side. On February 16 1948, Nehru wrote to
Vijaya Lakshmi Pandit, “I cannot imagine that the Security Council
could probably behave in the trivial and partisan manner in which
…… and it is not surprising that the world is going to pieces
…… and the US and Britain have played dirty, Britain being the
chief actor behind the scenes………”
The
formal induction of the Plebiscite administrator was to be made by
the State government although he was to be nominated by the UN
secretary general. On August 13, 1948, the UN Commission for India
and Pakistan (UNCIP) adopted a resolution embodying its proposals
for a settlement. It
stated, “The presence of Pakistani forces in the territories of
the State of Jammu and Kashmir is considered a tangible change in
the situation in Jammu and Kashmir”. And that “Pakistan must
guarantee the withdrawal of tribal men and Pakistani citizens who
don’t originally live in the state and who entered the State of
Jammu and Kashmir for fighting purposes”. India
accepted it; Pakistan did not. On December 11, 1948, the UNCIP
offered proposals in amplification of the first to provide for
plebiscite. Both sides accepted it.
While
the tribesmen from Pakistan and Pakistan’s troops were to be
withdrawn completely, India was to withdraw only “the bulk of its
forces,” retaining some “to assist local authorities in the
observance of law and order.” That was not the only lop-sidedness.
The existence of government of the State of Jammu and Kashmir was
explicitly recognised and so indeed was the State’s accession to
India and assumption of “external sovereignty.” Accordingly, the
resolution provided that “the government of the State of Jammu and
Kashmir” will safeguard law and order and that “human and
political rights will be respected.”
In
sharp contrast, for other part of the State, the resolution said:
“Pending a final solution, the territory evacuated by the
Pakistani troops will be administered by the local authorities under
the supervision of the commission.” This is in quick dissimilarity
to the clear recognition of the state government, acting under the
government of India, in respect of external relations. No
supervision was provided for this part of the state.
It was also stated in
the memorandum issued on 14 January 1949 by the Committee on India
and Pakistan that “If Pakistan refused these proposals
(referendum) or accepted them without putting into action the first
and second articles of the resolution issued on 13 August 1948, so
India is not obliged, by any means, to accept them”. Still,
Pakistan has to evacuate part of the Indian Territory in Jammu and
Kashmir, which it occupied illegally by means of armed aggression.
Frustrated
by continuous efforts by Islamabad to scuttle the peace process,
India in December 1950, rejected UN’s offer to mediate on Kashmir.
“The only way to solve it is for India and Pakistan to know that
the burden is upon them and no one else,” Nehru wrote to UN. The
draft resolution has earlier taken exception to the convening of the
constituent assembly and provided for super-session of the Kashmiri
government, and the possible entry of foreign troops to resolve the
tangle, something, which was not acceptable to India, in the light
of bona fide proof that it was Pakistan who had indulged in the act
of aggression.
On
January 17, 1952, in a statement delivered by Jacob Malik, Soviet
Representative in the UN Security Council, lashed out at
Anglo-American attitude. He said: “the United States does not want
the Kashmir question to be settled and is trying to bring Kashmir
under its control....” and that for the successful resolution of
the issue, the “ status be determined by a constituent assembly
democratically elected by the Kashmiri people.”
In
utter disregard of the UN resolutions by which it swears, Pakistan
imposed a new regime in POK on June 21, 1952. Rules of business were
presented on October 28. Rule 5 said: “ The president of Azad
Kashmir Government shall hold office during the pleasure of the All
Jammu and Kashmir Muslim Conference, duly recognised as such by the
government of Pakistan in the Ministry of Kashmir Affairs.” As She
was guilty of the invasion of J&K, it did not abide by the UN
Resolution and neither withdrew its troops and infiltrators.
Instead, it built airfields in the occupied territory, and imposed a
full civilian and military control while claiming the territory as
Azad Kashmir. For these violations the UN could not impose sanctions
on Pakistan, as the Resolution was not under Chapter VII of the
Charter.
The
legality of Jammu and Kashmir’s accession to India was
incontestable. Even so, India had agreed to a plebiscite in 1948.
But among the prime clauses, which have rendered a plebicite
impossible, is Pakistan’s annexation of POK, its refusal to
withdraw its forces from occupied territory, and its policies
towards the rest of the State.
Nehru’s
note of August 25 1952 for S M Abdulla read, “The government of
Pakistan is like someone riding a bicycle. They feel that the moment
they return to normalcy, the bicycle stops and they fall down.”
On
December 23, 1952, Valerin Zorin, Soviet Representative in the UN
Security Council, once again emphasised that settlement, could be
arrived at by “having the status of Kashmir determined by the
constituent assembly elected by the people of Kashmir itself on a
democratic basis.”
On
February 19, 1957, in a statement delivered by Sobolev, Soviet
Representative in the UN Security Council said: “...... the
Kashmir question has in actual fact already been settled in essence
by the people of Kashmir themselves, who consider their territory an
integral part of Republic of India.” And then went on to vote
against the inclusion in draft resolution any provisions which do
not correspond to the true situation in Kashmir area.
On
May 04, 1962, in a statement delivered by Platon Morozov, Soviet
Representative in the UN Security Council said: “ ......
plebiscite ........ could have taken place ....... subject to .....
Pakistan troops ...... were withdrawn. Therefore we agree that
....... the question of holding it (plebiscite) has lapsed, since
the provisos which were a condition for holding it have never been
fulfilled.....”
To
win Chinese support, Pakistan gifted 4853 sq km of the Kashmiri
territory in the Shaksgam Valley to China in 1963, thus unsettling
the territorial integrity of the State of J&K. Now, to repossess
this province is next to impossible. China is illegitimately
occupying Aksai Chin area, which is 19 percent of the territory. It
will be next to impossible for the UN to make China evacuate the
region.
Pakistan
by a Constitution Amendment incorporated a part of Pakistan Occupied
Kashmir (POK), that is, Northern Areas, in Pakistan, thereby
changing the territorial status of J&K and violating the UN
Resolutions. Pakistan has changed the demography of POK by
resettling large number of Punjabi ex- servicemen and Afghans from
NWFP, thereby making plebiscite of erstwhile J&K irrelevant.
APHC
and company, the political face of Islamabad in Kashmir has been
demanding the implementation of the UN Resolutions, and this is seen
as a major stumbling block in any future negotiations with New
Delhi. But then, this is something, which New Delhi would never
accept, irrespective of which party is at the helm of affairs. So it
is time for representatives of the separatist movement to get
realistic and practical; and as and when the official negotiations
begin, enter them with an open mind, and not with these premeditated
notions, which have been rubbished to the historical dustbin, not by
India, but by their benefactor, Pakistan.
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