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; 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 endeavour 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:
- ‘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
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;
- All political prisoners are released;
- Minorities in all parts of the State are
accorded adequate protection; and
- 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.
Writer is a political analyst and
author of many books and booklets. Also he is Director Institute of Kashmir
Affairs.
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